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2002 DIGILAW 1088 (PNJ)

Bheera v. State Of Haryana

2002-10-18

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. The appellant has been convicted and sentenced under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for allegedly being in possession of 30 kgs. of powdered poppy husk, without any permit or licence on 16.3.1996. 2. The case of prosecution is that a police party headed by ASI Hawa Singh apprehended the accused at the Bus Stand of Salempuri, who was carrying a bag tied on the carrier of his bicycle. The search of the bag was conducted and 30 kgs. of powdered poppy husk was recovered, out of which a sample was taken out, the sample and the residue were sealed in separate parcels, ruqa was sent to the police station on the basis of which formal FIR was registered, recovery memo and rough site plan were prepared and on receipt of report of Chemical Examiner and complying with other legal requirements, the accused was challaned. 3. In support of its case, the prosecution examined ASI Hawa Singh PW-5, HC Ram Kishan PW-4, and other evidence. 4. The accused in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution and pleaded false implication. 5. The trial Court accepted the case of the prosecution and convicted and sentenced the accused. Hence this appeal. 6. Counsel for the appellant contended that there was noncompliance with Sections 50 of the Act. Counsel further contended that the police did not join any independent witness in spite of the fact that independent witnesses were available. Counsel further submitted that there are contradictions in the statements of the witnesses which in the absence of any corroboration from an independent source, assume significance and reflects doubt on the case of the prosecution, especially when the recovery is only of 30 kgs. of poppy husk. 7. Counsel for the State supported the conviction and sentence of the appellant. 8. Having regard to the facts of this case, these contentions cannot be accepted. Evidence of ASI Hawa Singh, the investigating officer, which is corroborated by HC Ram Kishan PW-4, proves the case of the prosecution about the recovery of the contraband from the appellant. Section 50 of the Act is not applicable as the recovery is not from the person. Non-joining of the independent witness is not fatal when the recovery of the contraband stands proved on record by other corborative evidence. Section 50 of the Act is not applicable as the recovery is not from the person. Non-joining of the independent witness is not fatal when the recovery of the contraband stands proved on record by other corborative evidence. Counsel for appellant, could not point any contradiction which may be fatal to the case of the prosecution. I do not find any other infirmity in the case of the prosecution. I, therefore, affirm the conviction of the accused. 9. Coming to question of sentence, there is an amendment in the Act by Act No. 9 of 2001, which has been held to be applicable to pending appeals as well by a Division Bench of this Court. Counsel for the appellant submits that the accused is in custody since the date of his arrest i.e. on 16.3.1996 and has thus undergone more than six and half years including the period after conviction on 10.10.1996. A perusal of the record shows that the accused was convicted on 10.10.1996 and he has not been granted bail thereafter till date. Having regard to quantum of recovery and other circumstances of the case, I am of the view that sentence of imprisonment already suffered by the appellant will met the ends of justice. Therefore, while upholding the conviction, the sentence imprisonment awarded to the appellant is reduced to the period already undergone. Sentence of fine is, however, set off. 10. The appeal party allowed as aforesaid. Appeal allowed.