Criminal Appeal No. 235-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 235-SB of 2003 Date of decision : November 03, 2011 Fateh Singh ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms Malkiat Mann, Advocate, for the appellant Mr. RS Rawat, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Fateh Singh has filed this appeal to assail his conviction and sentence ordered by learned Additional Sessions Judge-cum- Judge, Special Court, Barnala vide judgment and order dated 16.1.2003 thereby convicting the accused-appellant under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and sentencing him to undergo rigorous imprisonment for two years and to pay fine of Rs 20,000/- and in default thereof, to undergo further rigorous imprisonment for three months. Prosecution case in brief is that on 6.4.2000, police party headed by Inspector Surinder Pal Singh was going from Barnala to village Criminal Appeal No. 235-SB of 2003 -2- Sekhwan Patti for patrolling. Near drain bridge, the accused was seen coming on the bank of drain from eastern side carrying a plastic bag on his head. On seeing the police party, the accused became nervous and tried to retreat. He was apprehended on suspicion. He was to be searched on suspicion of some contraband substance. He was informed of his right to be searched in the presence of Gazetted Officer or Magistrate. The accused desired to be searched in the presence of Gazetted Officer. Accordingly by sending wireless message, DSP Balwant Singh was called to the spot. The accused gave consent for search in the presence of Balwant Singh DSP, on being asked if he wanted search in the presence of Magistrate or Gazetted Officer. Thereupon bag of the accused was searched. It was found to contain poppy husk. Out of it, two samples of poppy husk weighing 250 grams each were separated. The remaining poppy husk weighed 7 kgs. 500 grams. The samples and the remaining poppy husk were sealed in separate parcels and were seized by the police. FIR was got registered by sending ruqa to the Police Station. Rough site plan of the place of recovery was prepared. Statements of witnesses were recorded. Accused was arrested. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under section 15 of the Act. Charge under section 15 of the Act was framed against the accused. He pleaded not guilty and claimed trial. Criminal Appeal No. 235-SB of 2003 -3- In support of its case, the prosecution examined five witnesses. ASI Palwinder Singh, PW1, Inspector Surinder Pal Singh, PW2 and DSP Balwant Singh, PW5 have broadly stated according to the prosecution version about recovery of 8 kgs poppy husk from the accused. Surinder Pal Singh also stated about investigation of the case conducted by him. Constable Parmjit Singh, PW3 and Head Constable Avtar Singh, PW4 tendered their affidavits in evidence being formal witnesses. Accused in his examination under section 313 Cr.P.C . denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he was apprehended from his village by the police in the presence of Bachan Singh Lamberdar and Balwinder Singh and nothing was recovered from him. In defence, the accused examined Bachan Singh, DW1. He stated that the accused was apprehended by the police and no incriminating article was recovered from him in his presence. Learned Additional Sessions Judge-cum-Judge, Special Court Barnala vide impugned judgment and order dated 16.1.2003 convicted and sentenced the accused as already recorded hereinbefore. Feeling dissatisfied, the convict has filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Criminal Appeal No. 235-SB of 2003 -4- All the prosecution witnesses have fully supported the prosecution case. Their statements could not be impeached in cross- examination. ASI Palwinder Singh, PW1, Inspector Surinder Pal Singh, PW2 and DSP Balwant Singh, PW5 have categorically deposed about recovery of 8 kgs poppy husk from the possession of the accused. Their statements inspire confidence. They had no enmity with the accused. There is no reason why they would implicate the accused in false case or would depose falsely against him. No suggestion was even put to these witnesses in their cross-examinations in this regard. Even the accused in his statement under section 313 Cr.P.C. has not alleged any ground for his false implication. Consequently, there is no reason to discard the statements of aforesaid material witnesses. Prosecution evidence is, thus, sufficient to prove the guilt of the accused beyond reasonable doubt. Even counsel for the appellant did not assail the conviction of the accused. It is manifest that the conviction of the accused is well founded. Accordingly, impugned judgment of conviction is affirmed. As regards quantum of sentence, counsel for the appellant prayed for reduction in sentence submitting that the occurrence took place more than 11 years ago. Prayer for reduction in sentence has been opposed by learned State counsel. I have carefully considered the matter. Perusal of the custody Criminal Appeal No. 235-SB of 2003 -5- certificate filed today in Court by learned State counsel reveals that the accused appellant has already remained in custody in this case for 7 months 13 days. At this distant time after expiry of more than 10 years from the date of occurrence, it would not be desirable to send the accused again to jail. The quantity of poppy husk recovered from the accused is also not very large. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if the sentence of imprisonment imposed on the appellant by the trial court is reduced to the period already undergone by him in custody and fine amount is reduced to Rs 10,000/- while maintaining the sentence of imprisonment for three months in default of payment of fine. It is ordered accordingly. With reduction in sentence as aforesaid, the instant appeal stands disposed of accordingly. ( L.N. Mittal ) November 03, 2011 Judge 'dalbir'