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2002 DIGILAW 1307 (PNJ)

Gurdeep Singh v. State Of Haryana

2002-11-27

AMAR DUTT

body2002
Judgment Amar Dutt, J. 1. Gurdeep Singh appellant has filed the present appeal to challenge the conviction and sentence recorded against him on 4.7.1989 by the Additional Sessions Judge, Sirsa. 2. The case against the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") was registered when he was apprehended on 29.2.1988 in the area of village Balasar with 500 grams of opium without a permit or a licence. After apprising the appellant that he has a right to get himself searched before a Gazetted Officer or a Magistrate, he evinced his willingness to have the same conducted by the Sub-Inspector. The requisite samples were taken and the recovered opium as well as the samples were sealed and taken into possession through recovery memo Ex. PA. The seal after use was handed over to Balkar Singh PW. On completion of the investigation, during which the report of the Chemical Examiner Ex. PE was obtained, a challan was put in Court. When the appellant pleaded not guilty to the charge framed against him by the trial Court, the prosecution was called upon to examine the witnesses in support of its case. It produced ASI Jai Dayal PW1, SI Hoshiar Singh PW2 and tendered in evidence the affidavits of HC Dale Singh and Constable Rajinder Singh and the report of the Chemical Examiner Ex. PE. Thereafter the statement of the accused was recorded and he was afforded an opportunity to examine witnesses in his defence. After arguments, the learned Additional Sessions Judge, Sirsa convicted the appellant under Section 18 of the Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000.00. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two years. 3. During the course of arguments, no one put in appearance on behalf of the appellant. With the assistance of the learned Assistant Advocate General, appearing on behalf of the State, I have gone through the record and find that on merits no interference is called for with the view taken by the trial Court. 3. During the course of arguments, no one put in appearance on behalf of the appellant. With the assistance of the learned Assistant Advocate General, appearing on behalf of the State, I have gone through the record and find that on merits no interference is called for with the view taken by the trial Court. However, with regard to the quantum of sentence, this Court will have to bear in mind the fact that the provisions of the Act have since been amended which a Division Bench of this Court has, in Ram Singh v. State of Haryana, 2002(3) RCR 728, held that the amendments would apply to the pending appeals also. Section 18 of the Act presently amended reads as under :- "18. Punishment for contravention in relation to opium poppy and opium :- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable, - (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. (c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees." 4. A perusal of the amendment makes it clear that the Legislature has incorporated therein the provisions to deal with possession of opium in small quantity, in commercial quantity and in any other case, which would cover eventualities where the quantity recovered falls above small and below commercial quantity. According to the Schedule 25 grams of opium and below are indicated as small quantity while the commercial quantity is fixed at 2.5 Kgs. According to the Schedule 25 grams of opium and below are indicated as small quantity while the commercial quantity is fixed at 2.5 Kgs. Thus the quantity recovered from the appellant would fall within clause (c) of Section 18 of the Act, which deals with punishment imposable in any other case. It is in view of this that the sentence imposable on the appellant will have to be fixed between six months and ten years and fine between Rs. 10,000.00 and Rs. 1,00,000.00 as provided in cases of small quantities by sub-clause (a). 5. Taking into consideration the facts and circumstances of the case, I feel that the ends of justice would be sufficiently met in case the sentence of imprisonment for ten years imposed on the appellant by the trial Court is reduced to a period of two years and the sentence of fine is reduced from Rs. 1,00,000.00 to Rs. 20,000.00. In default of payment of fine to undergo further rigorous imprisonment for one year. Ordered accordingly. With the above modification, the appeal fails and is dismissed.