1 S.B.CRIMINAL REVISION PETITION NO.444/1993 Sharif Khan & Anr. v. State of Rajasthan Date of Order :: 17 th November, 2009 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Vineet Jain, for the petitioners. Mr. AR Nikub, Public Prosecutor. .... This revision petition at the instance of accused petitioners stands directed against the judgment dated 13.12.1993 passed by learned Additional Sessions Judge-cum-Special Judge, SC/ST (Prevention of Atrocities Cases), Pratapgarh, confirming the judgment and order dated 19.12.1984 passed by learned Judicial Magistrate, Badi Sadri, in Criminal Case No.192/81. By the judgment aforesaid learned Judicial Magistrate convicted the petitioners for commission of an offence under Section 4/9 of the Opium Act, 1878 (hereinafter referred to as “the Act of 1878”) and sentenced each of them to rigorous imprisonment for a term of two years with fine of Rs.250/- and in default of payment of fine to further undergo three months imprisonment. The prosecution case has arisen on 19.9.1981, as each of the accused petitioners were found in possession of 2.080 kg. opium milk while 2 travelling in Rajasthan State Road Transport Corporation's bus bearing No.RJB-4531 plying between Neemach-Udaipur. A sample of the recovered material was taken, that was sent for chemical examination and then the petitioners were charged and prosecuted for the offence under Section 4/9 of the Act of 1878. During the course of trial M/s Kishanlal (PW-1); Abdul Shakur (PW-2); Natwar Singh (PW-3); Mangilal (PW-4); Bhagwan Das (PW-5); Daya Shankar (PW- 6); Ganpat Singh (PW-7); Maan Singh (PW-8); Jagdish Prasad (PW-9) and Gordhan Singh (PW-10) were examined as prosecution witnesses and the petitioners too were put for examination as per provisions of Section 313 Cr.P.C. The statements of Rehmat Khan (DW-1); Bavru (DW-2) and Mustak (DW-3) were recorded in defence. Certain documents and articles too were produced in evidence. Learned trial court after considering whatever material available on record convicted the accused petitioners and also passed the order of sentence. The appeal preferred against the judgment and order passed by learned trial court also came to be rejected, hence this revision petition is preferred. The first argument advanced by counsel for the petitioners is that the FSL report was not at all 3 exhibited and was also not put to accused, thus, that could have not been considered by the trial court. To substantiate the contention, reliance is placed by counsel for the petitioners upon two judgments of this Court in Kishanlal v. State of Rajasthan, 2002(1) Cr.L.R. (Raj.) 580 and Manohar Singh v. State of Rajasthan, 2006(2) CJ (Raj.) Cr. 545. The argument advanced is of no avail in the present case as on 29.10.1982 the FSL report was produced before the trial court by Assistant Public Prosecutor, thus, as per provisions of Section 293 Cr.P.C. the trial court was competent enough to take into consideration the same. The other argument of counsel for the petitioners is that the incriminating material i.e. the FSL report was not put to the accused under Section 313 Cr.P.C. and, therefore, that could have not been taken into consideration. This argument too is having no merit as a query relating to the incriminating material i.e. possession and recovery of opium milk was specifically asked. Another argument advanced by counsel for the petitioners is about breakage of link evidence. It is apparent from the record that the evidence that ultimately resulted into conviction of the petitioners is in series and there is no miscarriage of justice that may warrant interference of this Court while 4 exercising powers under Section 397 read with 401 Cr.P.C. In last, it was submitted by counsel for the petitioners that the incident in question relates to the year 1981 and now it will not be appropriate to remit the petitioners to undergo remaining part of sentence as a period of about 28 years has already been passed. On examination of record, I found that the petitioners have already undergone imprisonment for a period of 46 days. At the time of incident age of accused Sharif Khan was of 24 years and Faiz Khan was of 23 years. Both the accused persons now are at quite advance age and, therefore, it shall not be appropriate to remit them to undergo the remaining sentence of imprisonment. Accordingly, while affirming the conviction of the accused petitioners, I consider it appropriate to modify the sentence awarded by the courts below in the terms that each of the accused petitioners shall be liable for making payment of fine in a terms of Rs.6250/-. Accordingly, this revision petition is allowed in part, conviction of the accused petitioners is affirmed, the sentence of undergoing rigorous imprisonment for the term of two years is reduced to the term of imprisonment already undergone with fine 5 of Rs.6250/- which is required to be deposited by each of the accused before the trial court within a period of three months from today.; In default of payment of fine as above, the accused petitioners shall be liable to undergo the sentence as awarded by the trial court and affirmed by the appellate court. ( GOVIND MATHUR ),J. kkm/ps.