Crl. Revision No. 889 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.889 of 2011 (O&M) Date of decision: 29.08.2011 Arjan Singh ……Petitioner Versus State of Punjab …….Respondent CORAM : HON’BLE MR. JUSTICE A.N. JINDAL Present: Ms. Puja Chopra, Advocate, for the petitioner. Mr. Baljinder Singh Sra, Addl. A.G., Punjab. ***** A.N. Jindal, J. Recovery of 10 Kgs of opium led to the prosecution of the accused-petitioner (hereinafter referred to as ‘the accused’) under Section 9 of the Opium Act. Ultimately, vide judgment dated 25.01.2008 passed by the Sub Divisional Judicial Magistrate, Rajpura, he was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2000/-. His appeal was also dismissed by the Additional Sessions Judge (Fast Track Court), Patiala, on 28.02.2011. It would be pertinent to mention here that the delay in trial took place on account of the fact that the accused remained absconding and was declared as proclaimed offender. Ultimately, he was arrested on 31.03.2001 and was put to trial. 1 Crl. Revision No. 889 of 2011 (O&M) The facts, in nutshell, are that on 26.01.1981 at about 5.40 A.M., the accused was apprehended by ASI Kewal Krishan and from the search of his bag, opium was recovered. Out of the said bulk opium, 500 grams was separated as sample and the remaining opium was put in the same container. The sample as well as the bulk opium were sealed with the seal bearing impression ‘KKS’. Ruqa was sent, on the basis of which, FIR was registered at Police Station G.R.P., Patiala. The Investigating Officer recorded the statements of the witnesses; prepared the rough site plan and on receipt of the report of Chemical Examiner, challan was presented. The accused was charged under Section 9 of the Opium Act, to which, he pleaded not guilty and claimed trial. On 11.01.1984, when the case was fixed for prosecution evidence, an application was moved by the prosecution for amendment of the charge from 10 grams to 10 Kgs. Thereafter, the accused absented himself on 13.01.1984. Consequently, he was declared as proclaimed offender. Ultimately, he was arrested on 31.03.2001 and supplementary report was submitted against him on 07.09.2001. Charge was re-framed against him on 03.04.2003, to which he again pleaded not guilty and claimed trial. In order to substantiate the charges, prosecution examined Harbans Singh, DSP (PW-1), Gurdip Singh, SI (PW-2), Balwant Singh, HC (PW-3), Inspector Jaswant Singh (PW-3A), Tirath Ram, SI (PW-4), Manjit Singh, SI (PW-5) and Balbir Singh (PW-6). When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. However, no evidence was led in defence. Ultimately, the trial resulted into conviction and his appeal was also dismissed. 2 Crl. Revision No. 889 of 2011 (O&M) Not much has been argued to assail the judgment of conviction, but it has been urged that since it is a delayed trial, therefore, in view of the fact that the accused has already undergone 1½ years of sentence, a lenient view may be taken against him. Having considered this contention, I do not find merit in the same. The accused was found in possession of 10 Kgs of opium on 26.01.1981. It was after the stage of framing of charge, the accused ran away. Therefore, the delay in disposal of the trial was for the fault on the part of the accused. Consequently, he cannot get benefit of his own wrong. As regards the contention of non-examination of ASI Kewal Krishan, Investigating Officer, it was not within the control of the prosecution agency to keep him alive as he had expired with the passage of time. Anyway, the prosecution has duly proved the case by examining Jaswant Singh (PW-3A), who has categorically testified that on 26.01.1981 at about 5.40 A.M., they were present at platform No.1 of railway station, Rajpura, where train No.45-F Janta Express coming from Delhi, had stopped. Passengers alighted from the train and started going through the yard. The accused also alighted from the said train and on seeing the police party, he stepped fast, which invited suspicion by the police. He was carrying an army colour bag in his right hand. ASI Kewal Krishan stopped the accused and searched his bag, under rules, which led to recovery of 10 Kgs opium kept there in a plastic bag under the four packets of Bournvita power. A sample weighing 50 grams was separated from the opium. The remaining opium was put in a tin container. ASI Kewal Krishan has proved the recovery memo of the opium as well as the sample parcel. This witness has further testified that the seal after use was handed over to independent witness Harcharan Singh. Recovery memo Ex.PW3/A was attested by him 3 Crl. Revision No. 889 of 2011 (O&M) and Harcharan Singh and personal search memo Ex.PW3/B of the accused was prepared. He has proved tin container having opium as Ex.PW3/C. During cross-examination, he has denied if the accused was in custody of interrogation Centre Amritsar on the day of occurrence. No benefit could be given of the broken seal on the tin container. The case relates to the year 1981, therefore, the seal could be broken and tin container could be damaged due to rusting. Link evidence is also complete in this case. The prosecution has brought best evidence, which it could produce after a lapse of 20 years, to which, the accused could not make any explanation. The prosecution has also proved the report of the Chemical Examiner, Ex.PW6/A dated 23.06.1981 by examining Balbir Singh Technician, in the office of Chemical Examiner, Patiala. The report of the Chemical Examiner proves the fact that the stuff, so recovered from the accused, was opium. It is not the case of the accused that the recovery, so effected from him, was ever tampered with. Even otherwise, both the Courts below have reached the concurrent finding of fact that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt. No grounds to interfere. Dismissed. (A.N.Jindal) 29th August, 2011 Judge ajp 4