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2002 DIGILAW 1426 (PNJ)

Chaman Lal v. State Of Punjab

2002-12-20

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Chaman Lal-petitioner has filed the present revision against judgment dated 3.4.1989 passed by the Additional Sessions Judge, Ludhiana upholding the judgment dated 27.11.1987 passed by Sub-Divisional Judicial Magistrate, Jagraon, whereby the petitioner was convicted under Section 9(a) of Opium Act, 1878 (hereinafter referred to as `Act) and sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 700/- and in default of payment of fine to undergo further rigorous imprisonment for one month. 2. Shortly stated the prosecution version is that on 6.12.1984, Head Constable, Haqiqat Singh alongwith HC Pritam Singh, Constables Kuldip Singh and Tarsem Singh was present near the bus stand of village Nanaksar in connection with patrolling. At about 1.00 p.m., the accused was spotted coming carrying a hand bag in his right hand. On seeing the police party, he took a turn towards the back side of room located at the bus stand which aroused the suspicion of the police. He was accordingly apprehended and his search led to the recovery of 4-1/2 kgs. of opium in the bag carried by him. Sample of 10 grams was separated from the opium and, thereafter the sample and remaining opium were made into two separate parcels and sealed with the seal HS and taken into possession vide seizure memo prepared in this regard. Ruqa was transmitted to the police station on the basis of which the case was registered against the petitioner-accused at the police station. On receipt of chemical examiners report Ex.PE and completion of investigation, accused was challaned. Accordingly he was charged under Section 9 of the Act. 3. At the trial, prosecution examined HC-Pritam Singh, PW-1, HC Haqiqat Singh, PW-2, who gave a detailed account as to the interception of accused on 6.12.1984 at 1.00 p.m. in the area of village Nanaksar and recovery of 4-1/2 kgs. of opium from the hand bag carried by the accused. They had also proved their attestation on the recovery memo and memo of search of Ex. PB. HC-Pritam Singh had further stated that on return to the police station, case property was deposited with HMC-Kulwant Singh. Report of Chemical Examiner Ex.PE alongwith affidavits Ex.PF and Ex. PG were also placed on record. They had also proved their attestation on the recovery memo and memo of search of Ex. PB. HC-Pritam Singh had further stated that on return to the police station, case property was deposited with HMC-Kulwant Singh. Report of Chemical Examiner Ex.PE alongwith affidavits Ex.PF and Ex. PG were also placed on record. When examined under Section 313 of the Code of Criminal Procedure (hereinafter referred to as Code), accused rendered a plea of complete denial while taking the stand of false implication. He led no defence. On appraisal of evidence adduced on record, the learned Magistrate accepted the prosecution version and convicted and sentenced the accused as noticed above. Appeal preferred by the petitioner-accused was dismissed by the Additional Sessions Judge, Ludhiana vide order dated 3.4.1989. Hence the present petition. 4. None had appeared on behalf of the petitioner. I heard the State counsel at length. 5. Challenge to the judgments of the Courts below has been made by the petitioner in the grounds of revision petition on two counts. Firstly, that the affidavits tendered by the official witnesses have not been verified in accordance with law and for that reason, these should not be taken into consideration and resultantly, there is no link evidence on record so as to indicate that the sample in question had not been tampered with till it was analysed by the Chemical Examiner. Secondly, that there are material contradictions in the statements of the official witnesses which warrant rejection of their testimony. Lastly, it has been prayed that taking into account quantity of the alleged opium and the total period the petitioner had to face the prosecution, he should have been given the benefit of probation which plea, had been negated on unjustified grounds by the courts below. 6. These submissions have been refuted from the side of the prosecution. From the statement of HC-Haqiqat Singh and Pritam Singh, it is clearly brought on record that when accused was apprehended on 6.12.1984 to 1.00 p.m., he was found carrying 4-1/2 kgs. of opium in the hand bag carried by him. The fact that they are official witnesses and no other person had been associated at the time of recovery proceedings, per se is no ground to discard their statements. of opium in the hand bag carried by him. The fact that they are official witnesses and no other person had been associated at the time of recovery proceedings, per se is no ground to discard their statements. It is unacceptable that such a huge recovery of opium would have been planted against the accused by the Investigating Officer particularly when no animosity of any kind has been alleged by the petitioner against him. 7. The criticism which has been made in the grounds of revision petition is that affidavits Ex.PF and PG do not contain verification required under the law. As already noticed, Ex.PF and PG placed on record had been duly verified and further attested by the Judicial Magistrate, Ist Class, Jagraon. Taking into account the contents of the affidavits as a low and the attestation made before the Magistrate, it cannot be said that verification was not in accordance with the provisions of Section 297 of the Code. Report of Chemical Examiner Ex.PE also proves that the seals were found intact. Thus there is no merit in the stand taken from the side of the petitioner-accused. 8. Adverting to the so-called discrepant statements made by the witnesses, it has been stated by HC-Pritam Singh that police officials had stayed at some place before reaching the place of recovery; that two shops were located at the bus stand, that kacha path is at a distance of 1/2 kilometres; that sample of opium was weighed with the same weighing scale with which the other opium was weighed; that accused was not handcuffed and that seal after use was returned by him after 3/4 days. According to the version of HC-Haqiqat Singh, they had not stayed at any place before reaching the place of recovery; that no shop was located near the place of recovery; that kacha path is located at a distance of 1 furlong; that sample of opium was weighed with small size weighing scale; that accused was handcuffed and that seal after use was returned the next day of the recovery. These discrepancies cannot be termed as material discrepancies which can create a dent on the acceptability of testimony of these witnesses. Such discrepancies are bound to come up when the witnesses are examined after a lapse of time. Therefore the recovery as such cannot be discarded on the basis of these minor discrepancies. 9. These discrepancies cannot be termed as material discrepancies which can create a dent on the acceptability of testimony of these witnesses. Such discrepancies are bound to come up when the witnesses are examined after a lapse of time. Therefore the recovery as such cannot be discarded on the basis of these minor discrepancies. 9. Coming to last submission, taking into account that the petitioner had to undergo the agony of prosecution for a period of more than 21 years, the interest of justices requires that sentence should be reduced. I, therefore, reduce the sentence from rigorous imprisonment for 9 months to rigorous imprisonment for 6 months while maintaining the sentence of fine and also sentence in default of payment of fine. With this modification, the petition is disposed of. Petition disposed of.