CRA No.1401-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1401-SB of 2001 Date of Decision: November 16, 2010 Amar Singh alias Amra .......Appellant Versus State of Punjab .......Respondent **** CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Deepak Sabharwal, Advocate, for the appellant. Mr. J S Bhullar, AAG, Punjab. **** JITENDRA CHAUHAN, J. 1. The appellant-Amar Singh has come in appeal against the judgment and order dated 31.08.2001 (hereinafter as ‘impugned judgment’) passed by the learned Special Court (N.D. & P.S.) Patiala (hereinafter as ‘trial Court’), whereby he has been convicted for the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) in case FIR No.82 dated 18.3.1998 registered at Police Station, Samana, and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for a period of six months. CRA No.1401-SB of 2001 -2- 2. Briefly stating, the facts of the present case are that on 18.3.1998, a police party headed by ASI Jarnail Singh, apprehended the accused on the suspicion that he was carrying some contraband in the white bag kept on his head. On being searched, 17.5 Kgs. of poppy husk was recovered from his possession which he was keeping without any permit or licence thereof. Two samples of 250 grams each were separated and prepared into parcels. The remaining contraband was put back in the same bag which was also prepared into parcel. The parcels were sealed and ruqa was sent to the Police Station on the basis of which, formal FIR was recorded. 3. On completion of the investigation and on the basis of report of the chemical examiner, challan against the accused was presented and charge under Section 15 of the Act was framed to which the accused pleaded not guilty and claimed trial. 4. In order to substantiate its case, the prosecution examined as many as six witnesses, viz., C. Raghbir Singh No.24 as PW1; MHC Gurmail Singh No.1763 as PW2; ASI Mohinder Singh as PW3; HC Ajaib Singh as PW4; ASI Jarnail Singh as PW5; and Inspector Devinder Singh as PW6. 5. When examined under Section 313 Cr.P.C. the accused denied entire incriminating evidence appearing against him in the prosecution case and pleaded false implication. In his defence, he examined one Ram Singh as DW1. 6. The learned trial Court, after hearing both the parties, convicted and sentenced the accused-appellant for the offence and term as indicated at the outset of this judgment. CRA No.1401-SB of 2001 -3- 7. Feeling aggrieved therefrom, the present appeal has been preferred which was admitted by this Court on 23.01.2002. 8. Primarily, the case of the appellant through his counsel, inter alia, is that there is no compliance of Section 50 of the Act; the offer made to the appellant was defective; and the ASI, who apprehended the appellant, was not competent to investigate the matter. 9. Learned counsel for the appellant has further argued that Ram Singh, the only independent witness, has not been examined in the instant case. The said Ram Singh was examined as DW1. He has made a categorical statement that no recovery of any contraband was effected in his presence. The stand of the appellant, when examined under Section 313 Cr.P.C. is that he was picked up from his house and has been falsely roped-in in the instant case. Furthermore, no special report was sent to the Ilaqa Magistrate. 10. On the other hand, learned counsel for the State submits that the question of non-compliance of Section 50 of the Act does not arise inasmuch as it was not the case of personal search and as such, provisions of Section 50 are not attracted in the instant case. During the recovery, the seals were affixed. As per the FSL report, the substance was found to be contraband, therefore, the case of the prosecution is fully proved against the appellant. 11. I have heard learned counsel for the parties and perused the record. 12. The main contention of learned counsel for the appellant is that there is no compliance of Section 50 of the Act. The only independent witness of the recovery, i.e., Ram Singh, has not been CRA No.1401-SB of 2001 -4- examined, rather he appeared as DW1 and made a specific statement that no recovery was effected in his presence. 13. It was a chance recovery. There is no contradiction in the statements of the prosecution witnesses. After the recovery was effected, the seal was affixed and the same was found to be intact. As per the FSL report, the seized material was found to be contraband. As the recovery was not effected from the personal search of the appellant, Section 50 of the Act does not come into play. Moreover, in the absence of any allegation of mala fide against the appellant, no adverse inference can be drawn for not examining the independent witnesses. There is no other infirmity in the case of the prosecution. 14. In the circumstances, the conviction of the accused is upheld. Now, coming to the question of sentence, there is an amendment in the Act by the Act No.9 of 2001 which is applicable to the present appeals as well, in view of Basheer @ N.P. Basheer V. State of Kerala, 2004(2) J.T. 299, wherein Hon’ble the Supreme Court has observed as under:- “23. Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the Trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of CRA No.1401-SB of 2001 -5- reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2.10.2001, but the appeal is filed after 2.10.2001, it cannot be said that the appeal was pending as on the date of the coming into force of the Amending Act, and the amendment would be applicable even in such cases. The observations of this Court in Nallamilli’s case (supra) would apply to such a case. The possibility of such a fortuitous case would not be strong enough reason to attract the wrath of Article 14 and is constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14.” 15. As per the custody certificate dated 22.4.2003, the appellant has undergone 01 year 09 months and 23 days. 16. Keeping in view the quantum of recovery and other circumstances of the case, I am of the view that reduction in the sentence of imprisonment to the period already undergone by the accused will meet the ends of justice. 17. Consequently, while upholding the conviction of the accused, the sentence his of imprisonment is reduced to the period already undergone and the sentence of fine is reduced to Rs.5,000/-, CRA No.1401-SB of 2001 -6- however, in default of payment of fine, the accused shall further undergo rigorous imprisonment for a period of one year. 18. Accordingly, the present appeal is partly allowed as indicated above. 16.11.2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter : Yes / No