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2003 DIGILAW 1458 (PNJ)

Ram Sarup v. State of Punjab

2003-10-21

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Ram Sarup appellant herein stands convicted under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred to as the Act) vide judgment dated 13.7.1991 passed by Additional Sessions Judge, Hoshiarpur and has been sentenced to undergo RI for ten years and to pay a fine of Rs. One lac, in default of payment of fine to further undergo RI for three years. Aggrieved by the impugned judgment, he has preferred the present appeal. 2. In short the case of the prosecution is that ASI Ajit Singh PW1 alongwith other police officials was proceeding for patrolling from village Ajnoha towards village Nangal, Thandal, Jalwera, Todarpur and on reaching near the turning of village Todarpur the appellant was seen coming from the side of village Todarpur carrying a gunny bag on his cycle. After seeing the police party he made an attempt to move back but was apprehended on suspicion. ASI Ajit Singh after establishing identity of the appellant apprised him as to whether he wanted to be searched in the presence of a Magistrate or a DSP. The appellant expressed his preference of being searched in the presence of D.S.P. Thereafter Satpal Singh DSP PW3 incidently reached near the place of recovery. The search of the gunny bag was carried out by the prosecution agency leading to the recovery of 40 kgs of poppy husk. A sample of 250 grams was taken out. Sample and the remaining poppy heads were made into separate sealed parcels with the seal bearing letters SS. The gunny bag Ex. P1, cycle Ex. P2 and the sample were taken into possession vide recovery memo Ex. PD and handed over the ASI Ajit Singh for depositing with the Maharrir. On return to police station, Ajit Singh ASI deposited the case property with the seal intact with Ashwani Kumar MHC. On the basis of ruqa Ex.PE sent by ASI Ajit Singh, formal FIR Ex. PE/1 was recorded by Ashwani Kumar MHC. Rough site plan was also prepared at the spot. The samples which were sent to the Chemical Examiner were found to be coarse powder poppy head vide report Ex. PC. 3. After completion of investigation, the appellant was sent for trial. A charge under section 15 of the Act was framed against the appellant. 4. Rough site plan was also prepared at the spot. The samples which were sent to the Chemical Examiner were found to be coarse powder poppy head vide report Ex. PC. 3. After completion of investigation, the appellant was sent for trial. A charge under section 15 of the Act was framed against the appellant. 4. In support of its case, the prosecution has produced ASI Ajit Singh as PW1. He has categorically narrated the entire prosecution case. His statement is corroborated by PW2 HC Malkit Singh. DSP Satpal Singh has been produced as PW3. His evidence is to the effect that he reached at the place of recovery when the appellant was apprehended by the police party and that ASI Ajit Singh had searched the gunny bag in his presence. He also talks of the taking of the sample and other formalities done at the spot including sealing of the parcels with his seal bearing seal SS. 5. The prosecution had also tendered affidavits Ex. PA and PB of Constable Surinder Singh and Ashwani Kumar MHC as well as report of Chemical Examiner Ex.PC. 6. The defence taken up by the appellant as emerges from his statement under section 313 Criminal Procedure Code is of total denial. However, appellant has not adduced any defence. I have heard Mr. T.P.S. Mann, learned counsel for the appellant and Mr. G.S. Hooda, learned Assistant Advocate General, Punjab. With their assistance, I have also gone through the records of the case. 7. The learned counsel for the appellant has raised the following two arguments :- (i) no independent witness has been joined at the time of searching the gunny bag; (ii) there are discrepancies in the statements of the witnesses. 8. Arguments advanced by the learned counsel for the appellant have been vehemently refuted by the learned State counsel. 9. So far as first argument is concerned, it has been submitted by Mr. Mann that the police officials should have made an attempt to associate independent witnesses to inspire confidence in the recovery proceedings but the same has not been done in this case. According to the learned counsel this is itself is sufficient to discard the prosecution case in toto. I do no agree with the submissions made by the learned counsel for the appellant. According to the learned counsel this is itself is sufficient to discard the prosecution case in toto. I do no agree with the submissions made by the learned counsel for the appellant. No doubt, no independent witness was joined in this case but this by itself would not be a ground to throw away the prosecution case. Police officials cannot be doubted like this. The law enjoins the performance of certain duties by them and we cannot doubt their act with suspicion. No material has been brought on record to show that the police officials had any reason or motive to falsely implicate the appellant in this case. All the official witnesses have consistently stated that the appellant was intercepted while he was carrying gunny bag on his cycle containing 40 kgs of poppy husk. When their evidence is quite consistent and free from any doubt, I find no reason to disbelieve the same. The argument advanced by the learned counsel for the appellant in this regard is, thus, repelled. 10. Learned counsel for the appellant at the same time has not been able to point out any material discrepancy or infirmity in the testimony of the official witnesses which would compel the court to see the prosecution case with pinch of salt. No doubt certain minor discrepancies have been crept in the statement of official witnesses but those are not of that serious nature as to discard the case of the prosecution in its entirety. The argument advanced in this regard is also negatived. 11. I am of the considered view that the prosecution has been able to prove its case against the appellant beyond any shadow of doubt. The conviction as recorded by the learned trial court is, thus, confirmed. 12. In the alternative the learned counsel for the appellant has prayed for leniency so far as quantum of sentence is concerned. It has been contended that as per the amended provisions of the Act, as substituted by Act No. 9 of 2001, lesser sentence can be imposed if the contraband does not fall under the head "commercial quantity" and in the light of the Division Bench judgment of this Court rendered in Ram Singh v. State of Haryana, 2002(3) RCC 425, the amended provisions are also applicable to the pending appeals in which the offence was allegedly committed prior to the amendment. It is then contended that in the present case admittedly the quantity of the contraband allegedly recovered fall under the head "non- commercial quantity" and the appellant, thus, deserves the concession of reduction in the quantum of sentence. In support of his case, the learned counsel for the appellant has relied upon judgment of this Court rendered in Mewa Singh v. State of Punjab, Criminal Appeal No. 1041-SB of 2000, decided on 20.12.2002. In the said case the recovery was of 30 kgs of poppy husk and the sentence was reduced from 10 years to two years and sentence of fine was reduced from Rs. one lac to Rs. 2000/-. I find force in the submissions made by the learned counsel for the appellant. Concededly the alleged recovery of contraband does not fall within the head commercial quantity. The present case relates to year 1990. The appellant has already faced the rigour of long 13 years. The judgment rendered in Mewa Singhs case (supra) relied upon by the learned counsel for the appellant is applicable to the present case. In my view the ends of justice would be adequately met if the sentence of ten years already awarded to the appellant is reduced to two and a half years and the sentence of fine is reduced from Rs. one lac to Rs. 5000/-. In default of payment of fine, the appellant shall further undergo RI for three months. It is ordered accordingly. Consequently, the appeal is dismissed with the modification in the quantum of sentence as indicated above. Let intimation of the result be conveyed to the concerned quarters for taking appropriate action according to law. Appeal dismissed.