IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2243-SB of 2003 Date of decision: 6th May, 2009 Baldev Singh … Appellant Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sanjeev Gupta, Advocate for the appellant. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Baldev Singh son of Sinder Singh, aged 21 years, resident of village Kharkara. He has been convicted and sentenced by Special Court, NDPS, Patiala under Section 18(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo rigorous imprisonment of 1 ½ years and to pay fine of Rs.1500/-, in default of payment of fine to further undergo rigorous imprisonment for one month. The appellant was tried in case FIR No. 26 dated 14.01.2002 registered at Police Station Sadar, Patiala. Appellant was found in possession of 1 kg opium. FIR was recorded on the basis of ruqa (Ex.PH) sent by ASI Jaswinder Singh of CIA Staff, Patiala. Ruqa was sent on 14th January, 2002 at 4.00 p.m. It is recorded in the ruqa (Ex.PH) that ASI was present at bus stand Paharipur, along with companion officials, when Subeg Singh son of Bela Singh arrived and the Investigating Officer was talking with him. At that time, one person was seen coming from the side of Criminal Appeal No. 2243-SB of 2003 Paharipur village. The person had wrapped a Loi (blanket) around his body. On seeing the police party, he turned back. On suspicion, he was apprehended. On asking, he disclosed his name as Baldev Singh son of Shinder Singh, caste Kamboj, resident of village Kharkara. He was carrying a bag on his right shoulder. The Investigating Officer told the accused that he suspect that he is carrying some contraband article and if desire, he can get himself searched from a Gazetted Officer or Magistrate. The accused exercised his option and stated that he want himself to be searched by a Gazetted Officer. A memo to this effect was drawn at the spot. Requisition was sent to DSP (Rural), Patiala to arrive at the spot through wireless. Rachhpal Singh, DSP (Rural) reached at the spot, along with gunman, in a gypsy. In the presence of Rachhpal Singh, DSP (Rural), search was conducted and 1 kg of opium was recovered. The matter was investigated. Report under Section 173 Cr.P.C. (challan) was submitted. Appellant was charged by the Judge, Special Court, Patiala. It was stated in the charge that on 14th January, 2002 at 4.00 p.m., in the area of bus stand Paharipur, appellant was found in possession of 1 kg opium, without any permit or license, thereby he has committed an offence under Section 18 of the NDPS Act. Appellant pleaded not guilty and claimed trial. Prosecution examined HC Sohan Singh, who tendered his affidavit (Ex.PA). In cross-examination, he stated that case property was deposited with him on 14th January, 2002 at 5.00 p.m. He further stated that case property was taken from him by the Investigating Officer on 15th January, 2002 at 1.00 p.m. for production of the same in the Court. Sample parcel were handed over to HC Faqir Chand on 23rd January, 2002 for deposit in the office of Chemical Examiner, Chandigarh. Faqir Chand PW- 2 tendered his affidavit (Ex.PB). He had taken the samples for deposit to Chemical Examiner. DSP Rachhpal Singh was examined as PW-3. He 2 Criminal Appeal No. 2243-SB of 2003 deposed regarding search conducted in his presence and recovery of 1 kg opium. He proved consent memo (Ex.PC). He further stated that two samples of 10 gm were separated from the bulk opium and were put in two plastic bags and made in parcels. Remaining opium was kept in plastic bags and made in parcel. He further stated that sample seal impression chit (Ex.P1) was prepared, which was attested by him. Seal, after use, was handed over to PW Subeg Singh by ASI Jaswinder Singh. He kept his own seal and the case property was taken into possession vide memo (Ex.PD). In cross-examination, he stated that message through wireless was received by him at 1.35 p.m. He reached at the spot at 2.15 p.m. Police party consisted of 5/6 police officials. He further stated that consent memo was recorded at about 2.30 p.m. In cross-examination, he stated that consent memo was first signed by accused and later PWs had attested it. Investigating Officer, ASI Jaswinder Singh appeared as PW-4. He reiterated what was stated in the ruqa (Ex.PH), on the basis of which, FIR was recorded. He further stated that he had carried personal search of the accused. He also proved registration of the formal FIR (Ex.PH/1). He prepared rough site plan (Ex.PJ) with correct marginal notes. He further stated that on return to the Police Station, he produced the accused along with case property before SHO Shamsher Singh. On the next day, he produced the case property and samples before the Court of Additional Chief Judicial Magistrate, Patiala. The request for production of case property was exhibited as Ex.PK and order of the Court as Ex.PK/1. In cross-examination, he stated that he started from CIA Staff, Patiala at 10.30 a.m. An entry to this effect was made in the roznamcha before departure. He reached at the spot at 12.30 noon. Various persons were checked as suspects. Subeg Singh public witness met him at 12.45 p.m. He was known to the Investigating Officer earlier. He further stated that his seal was made of silver. It was round shaped, having JS engraved on it. 3 Criminal Appeal No. 2243-SB of 2003 He had recorded the statement of Subeg Singh, DSP Rachhpal Singh, HC Ajaib Singh and Constable Harjinder Singh under Section 161 Cr.P.C. He further stated that the accused and the case property were produced before the Inspector at 8.30 p.m. Inspector Shamsher Singh appeared as PW-5. He deposed regarding production of case property and accused before him. PW-6 HC Ajaib Singh was member of the police party, which had arrested the accused, conducted search, seizure and effected recovery. He deposed to corroborate the testimony of PW-4 ASI Jaswinder Singh. Constable Harjinder Singh, HC Avtar Singh, ASI Darshan Singh and Subhash Chand were give up as unnecessary. Public witness Subeg Singh, who was joined as independent witness, was given up as won over. Thereafter, prosecution closed the evidence. Statement of the accused under Section 313 Cr.P.C. was recorded. All incriminating evidence was put to the accused. He denied the prosecution case and stated that he was innocent. Nothing was recovered from him on 14th January, 2002. He came to Samana in connection with the work of motor-binding and when he was waiting for the bus, he was called by the police and taken to the Police Station, where he has been falsely implicated. In defence, he examined DW-1 Mohinder Singh, who appeared to vouchsafe the antecedents of the appellant. He stated that appellant bears a good character and he is doing the work of repair of pumps. Inderjit Singh, Handwriting and Fingerprint Expert, Patiala was examined as DW-2. He had examined the disputed writing marked as D1 to D4 on the statement of HC Ajaib Singh and he stated that disputed writing mark D1 to D4 do not tally with the standard writing of Jaswinder Singh ASI, Investigating Officer marked as S1/A, S1 to S7, as they have been written by two different persons. In cross-examination, he stated that 4 Criminal Appeal No. 2243-SB of 2003 handwriting is not a perfect science. Thereafter, accused has closed his evidence. Trial Court formulated the following point for determination of the case: “1. Whether on 14.1.2002 at 4 p.m., in the area of bus stand, Pharipur, accused kept in his possession 1 kg. of opium without any licence or permit.” The trial Court considered the arguments raised that Subeg Singh, public witness has not been examined and held that generally people from rural areas are averse to depose in Court and therefore, had not accepted the contention that non-examination of independent witness is fatal to prosecution. The Court also considered the contradictions pointed out by the counsel for the defence and had ignored the same being minor in nature. Court further held that by calling the DSP PW-3 Rachhpal Singh at the spot, there was due compliance of the provisions of section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 on the part of the investigating agency. After this Court had noticed the arguments raised in the trial Court, counsel for the appellant has stated that due credence should be granted to the testimony of DW-1 Mohinder Singh, Sarpanch of the village, who has stated that appellant has never indulged in any such activity. Counsel has further stated that appellant, after the registration of this case, is not involved in any other case. Counsel for the appellant has stated that he will not be able to raise any new argument in this Court, except that Subeg Singh public witness was not examined. I have read the testimony of PW-3 Rachhpal Singh, PW-4 Jaswinder Singh and PW-6 HC Ajaib Singh. Their testimony aspire confidence. 5 Criminal Appeal No. 2243-SB of 2003 At this stage, counsel for the appellant has submitted that occurrence in the present case, has taken place in year 2002. The appellant has suffered a protracted trial of seven years. Therefore, sentence awarded upon the appellant may be adequately reduced. Counsel for the State has submitted that once conviction is maintained, reduction in sentence is the discretion of the Court, therefore, he will not be able to advance any meaningful argument on this score. Taking into consideration protracted trial, antecedents of the appellant and the fact that he was aged 21 years at the time when judgment was rendered by the trial Court, I am of the view that ends of justice will be fully met in case sentence awarded upon the appellant is reduced from 1 ½ years to nine months rigorous imprisonment. However, sentence of fine is maintained. With these modifications in the sentence, present appeal is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE May 6, 2009 rps 6