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2000 DIGILAW 378 (PNJ)

Rajinder Kumar v. State of Punjab

2000-04-04

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - This is a criminal revision and has been directed against the judgment dated 17.9.1987 passed by Additional Sessions Judge, Amritsar, who, while maintaining the conviction of the petitioner, in the interest of justice, reduced his substantive sentence from 2-1/2 years to 1-1/2 years. However, the fine was increased from Rs. 500/- to Rs. 2,000/-. In default of payment of fine, the petitioner was directed to undergo R.I. for a period of 6 months. 2. The brief facts of the case are that on the night intervening 31.8.1982/1.9.1982, a police party headed by H.C. Tarlok Singh was on patrol duty and at about 7.00 a.m. apprehended the petitioner on suspicion in the area of Khalsa Kohlu Factory near Gian Ashram School, Amritsar on a bicycle. From the personal search of the petitioner a gunny bag was found which was tied with a rubber tube and it contained 25 Kgs. of opium. The Head Constable separated 20 grams of opium as a sample in a small tin and made a sealed parcel thereof. The remaining opium was separately sealed in a drummi Ex. P- 1. The entire case property was taken into possession vide recovery memo Ex. PA. The bicycle was also taken into possession. The petitioner could not produce any licence or permit for the possession of opium. Resultantly, ruqa Ex. PC was sent to the police station on the basis of which formal FIR Ex. PC/1 was recorded by Inspector Kulwant Singh. The Investigating Officer also prepared rough site plan Ex. PD of the place of recovery. He recorded the statements of the witnesses, formally arrested the petitioner and on return to the police station the case property along with sample with seals intact was deposited with the MHC Kishan Chand. The sample of the opium was sent to the office of Chemical Examiner, who declared the contents as opium. On completion of the investigation, the petitioner was challaned in the Court of Area Magistrate, which supplied the copies of documents to the petitioner. 3. In support of its case the prosecution examined HC Tarlok Singh and HC Didar Singh, PW-1 and PW-2 respectively and also tendered into evidence report of the Chemical Examiner Ex. PE besides the affidavits of formal witnesses Ex. PF and Ex. PG. 4. 3. In support of its case the prosecution examined HC Tarlok Singh and HC Didar Singh, PW-1 and PW-2 respectively and also tendered into evidence report of the Chemical Examiner Ex. PE besides the affidavits of formal witnesses Ex. PF and Ex. PG. 4. On the closure of prosecution evidence, statement of the petitioner under Section 313 Criminal Procedure Code was recorded and all the incriminating circumstances appearing in the prosecution evidence were put to him. The petitioner denied those circumstances and pleaded himself to be innocent. When called upon to enter into his defence, the petitioner examined Constable Santokh Singh as PW-1, his father Walaiti Ram DW-2, Sat Pal Ahlmad DW-3 and Ajaib Singh constable DW-4. 5. The learned Magistrate vide judgment and order dated 24.2.1987 convicted the petitioner under Section 9(a) of the Opium Act and sentenced him to undergo RI for a period of 2-1/2 years and to pay a fine of Rs. 500/-. In default of payment of fine the petitioner was directed to undergo further R.I. for 2 months. 6. Aggrieved by the judgment and order of the trial Court, the petitioner filed the appeal in the Court of Additional Sessions Judge, Amritsar, who vide judgment dated 17.9.1987 maintained the conviction of the petitioner under Section 9(a) of the Opium Act, but reduced his substantive sentence from 2-1/2 years to 1-1/2 years. However, the fine was increased from Rs. 500/- to Rs. 2,000/-. 7. Aggrieved by the judgment of the first Appellate Court, the present revision, which I am disposing of with the assistant rendered by the learned counsel for the State. I have also gone through the grounds of revision. 8. The first point which I would like to deal in this revision is as to whether it is obligatory on the part of the prosecution to examine an independent witness when such witness has not been joined by the prosecution in spite of the fact that recovery has been effected from a public place, and the answer of this Court is in the negative. It is not always necessary on the part of the prosecution to avail the services of an independent witness. At the most, it is an omission on the part of the Investigating Officer. It is not always necessary on the part of the prosecution to avail the services of an independent witness. At the most, it is an omission on the part of the Investigating Officer. It is the settled principle of law that the conviction can be based on the statements of the police officials and their statements are considered at par with the independent witness. Only the rule of prudence before acting upon the statements of the police officials is that these should be corroborated. In this case the prosecution has examined Investigating Officer HC Tarlok Singh, whose statement has also been corroborated by HC Didar Singh. No animus has been suggested by the petitioner in the grounds of revision and it is also not believable that HC Tarlok Singh will plant a huge recovery of 25 Kgs. of opium from his personal resources. 9. The next submission which emerges from the grounds of revision is that the affidavits of formal witnesses have not been verified as required under Section 297(2) Criminal Procedure Code It is not stated in the affidavits as to which paras have been sworn as per belief and which paras have been sworn from the knowledge derived by them. This submission is not acceptable to this Court. I have seen the verification. The deponents namely Constable Mukhtiar Singh and MHC Kishan Chand have deposed that the contents of the affidavits are correct as per their knowledge and belief and nothing has been concealed or mistaken. There is a verification of Judicial Magistrate Ist Class, Amritsar, who had certified that the contents of the affidavits were read over and explained to the deponents, who were identified by Dharam Pal. Nothing was required to be stated on the part of the deponents as to which para is correct according to their information and believed to be correct. In this view of the matter, I do not see any infirmity in the verification of the affidavits. Thus, there is no merit in the said ground of revision. 10. It was then submitted in the grounds of revision that the statement of the petitioner under Section 313 Criminal Procedure Code has not been recorded in a proper manner. According to the prosecution, the recovery was effected on 1.9.1982, whereas the date of occurrence has been put as 31.8.1982. 10. It was then submitted in the grounds of revision that the statement of the petitioner under Section 313 Criminal Procedure Code has not been recorded in a proper manner. According to the prosecution, the recovery was effected on 1.9.1982, whereas the date of occurrence has been put as 31.8.1982. This ground too, in my opinion, does not hold any water as the story of the prosecution was that on the night intervening 31.8.1982/1.9.1982, the recovery was effected. No doubt, the recovery is dated 1.9.1982 at 7.00 a.m. But I have gone through the statements of the witnesses, who have categorically deposed that the recovery was effected on 1.9.1982. No prejudice has been caused to the petitioner. The entire evidence has been recorded in his presence. Even the defence witnesses examined by the petitioner also speak of 1.9.1982. 11. The last submission of the petitioner is that the sentence awarded to him is very excessive and especially with the passage of time a lenient view should be taken as he is suffering the agonies of the criminal proceedings since 1982. To this extent this Court is inclined to accept the prayer of the petitioner. This Court is of the opinion that the interest of justice requires that with the passage of time the substantive sentence of the petitioner can be reduced considerably. The same stands reduced to six months. The imposition of fine is, however, maintained. If the petitioner does not pay the fine, he shall undergo further R.I. for 15 days. With this further modification in the matter of sentence, the revision fails and is hereby dismissed. 12. The decision of this revision be communicated to the Chief Judicial Magistrate, Amritsar so that the petitioner may be taken into custody in order to serve the remaining sentence. Revision dismissed.