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2002 DIGILAW 1756 (RAJ)

Ram Singh alias Khanna v. State of Rajasthan

2002-10-24

H.R.PANWAR

body2002
JUDGMENT 1. - This criminal revision petition under Section 397/401 Cr.PC. is directed against the judgment and order of conviction dated 16.9.1992 passed by Additional Sessions Judge No. 3, Jodhpur (hereinafter referred to as 'the Appellate Court) in Criminal Appeal No. 3 of 1992, whereby the Appellate Court dismissed the appeal filed by petitioner against his conviction and sentence passed by Munsif and Judicial Magistrate, First class, Phalodi (hereinafter referred to as the trial court) in Criminal Original Case No. 73 of 1978, whereby the trial court found the petitioner guilt for the offence under Section 4/9 of the Opium Act (for short the Act) and convicted and sentenced him to undergo one year rigorous imprisonment. Aggrieved by the judgment impugned passed by the Appellate court, the accused petitioner preferred this revision petition. 2. The petitioner was tried for the offence under Section 4/9 of the Act since repealed on the allegations that on 2.1.1978 PW- 8 Magaram, SHO Police Station Lohawat, alongwith PW- 1 Deep Singh and PW- 2 Hukam Singh went to investigate some criminal case. While they were passing from village Chilla to Jalodha on the way they found the petitioner. His personal search was carried out and he was found in possession of 1.1 Kg Opium without licence. Accordingly, the said Opium was seized vide Exhibit- P1. The petitioner was arrested vide Exhibit- P2. First Information Report Exhibit- P6 was lodged with Police Station Lohawat. After investigation police filed challan against the petitioner in the trial court. In order to prove the case the prosecution examined PW- 1 Deep Singh, PW- 2 Hukam Singh, PW- 3 Man Singh, PW- 4 Bhanwarlal, PW- 5 Tulsidas, PW- 6 Ramlal, PW- 7 Rameshwar Prasad, PW- 8 Mangal Ram, PW- 9 Jai Singh and PW- 10 Ruparam. The prosecution proved seizure memo Exhibit- P1, arrest memo Exhibit- P2, F.I.R. Exhibit- P6, forensic science report analysing alleged contraband recovered from the petitioner vide Exhibit- P9 etc. The accused petitioner made statement under Section 313 Cr.PC. wherein he stated that while he was walking he was caught by the police and a case was prepared against him. On appreciation of the evidence, the trial court reached to the conclusion and found the accused petitioner guilty for the offence under Section 4/9 of the Act and convicted and sentenced him to undergo one year rigorous imprisonment. wherein he stated that while he was walking he was caught by the police and a case was prepared against him. On appreciation of the evidence, the trial court reached to the conclusion and found the accused petitioner guilty for the offence under Section 4/9 of the Act and convicted and sentenced him to undergo one year rigorous imprisonment. The petitioner preferred appeal against the conviction and sentence passed by the trial court. The Appellate Court on re- appreciation of the evidence and material on record reached to the conclusion that the prosecution beyond any manner of doubt and accordingly maintained the conviction and sentence passed by the trial court. 3. I have heard learned counsel for the petitioner and learned Public Prosecutor appearing for the State. Perused the record and order of the trial court as well as of the Appellate Court. 4. Mr. B.N. Kalla learned counsel for the petitioner has not challenged the concurrent finding of both the courts below as well as the petitioners conviction and sentence under Section 4/9 of the Act, which stands well proved by the prosecution evidence produced before the trial court beyond reasonable doubt. The evidence produced by the prosecution is fully consistent with the guilt of the petitioner and, therefore, learned counsel for the petitioner rightly does not challenge. Learned counsel for the petitioner contended that on relevant date of the occurrence i.e. 2.1.1978 the petitioner was 65 years of age and now the petitioner is an old and infirm person of about 89 years of age. The age of the petitioner is evident from the record. He further contended that the occurrence is of 2.1.1978, and about more than 24 years have already elapsed since the date of the occurrence and the petitioner has faced the trial as also litigation for the appeal and the present revision petition. The petitioner had already undergone substantive sentence of about 4 months and, therefore, learned counsel for the petitioner submits that ends of justice would be met if the sentence awarded to the petitioner is reduced to the period already undergone by him. 5. Learned counsel for the petitioner has relied on the judgment of this Court in S.B. Criminal Revision Petition No. 147/992 decided on 20th August, 2002, wherein the accused petitioner was found in possession of Opium weighing 1.250 Kgs, and was convicted under Section 4/9 of the Act. 5. Learned counsel for the petitioner has relied on the judgment of this Court in S.B. Criminal Revision Petition No. 147/992 decided on 20th August, 2002, wherein the accused petitioner was found in possession of Opium weighing 1.250 Kgs, and was convicted under Section 4/9 of the Act. He had already undergone imprisonment for 16 days. In revision, a Co- ordinate Bench of this Court maintained the conviction but reduced the substantive sentence to the sentence which he had already undergone. 6. On the other hand, learned Public Prosecutor has seriously contended that there are no mitigating circumstances in this case. In present case, allegation against the petitioner is that he was found in possession of alleged contraband of Opium weighing 1.1 Kg and, as such, quantum of punishment imposed on him cannot be said to be disproportionate. 7. I have given my thoughtful consideration to the rival submissions made at the bar. 8. The accused petitioner on relevant date of the occurrence was about 65 years of age. The petitioner has been facing trial since 1978 and during the trial and after the decision of the appeal, the petitioner remained in custody for about four months. The petitioner has enough undergone consequences of his deed in facing the investigation, trial of the case and in prosecuting the appeal and this revision. 9. Learned Public Prosecutor did not controvert the age of the petitioner on the relevant date of the occurrence to be less than 65 years as it is evident from the record. Keeping in view the aforesaid mitigating circumstances, in my considered opinion, ends of justice would be secured, if the sentence awarded to the petitioner is reduced to the period of sentence already undergone by him. 10. In the result, this revision petition is partly allowed. The conviction of the petitioner for the offence under Section 4/9 of the Act is maintained but the sentence of imprisonment passed by the trial court and affirmed by the Appellate Court is reduced to the sentence for the period already undergone by the petitioner.Revision Partly allowed. *******