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2003 DIGILAW 175 (PNJ)

Hartej Singh v. State of Punjab

2003-01-29

SWATANTER KUMAR

body2003
JUDGMENT Swatanter Kumar, J. (Oral) - This appeal is directed against the judgment of conviction and order of sentence passed by the learned Sessions Judge, Ropar, both dated 6.7.1990, vide which the present appellant was found guilty of offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and convicted him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac. In default thereof, to further suffer rigorous imprisonment for five years. 2. The case of the prosecution is that Harbans Singh, ASI, who was examined as PW. 5, accompanied by Mohinderpal Singh, Head Constable and other police official were on routine patrolling when they noticed that the accused walking carrying a plastic bag in his hand. After seeing the vehicle of the police party, he at once turned towards village Dumna. However, he was apprehended. In terms of the provisions of the Act, he was required to carry the personal search of the accused in presence of a Gazetted Officer or a Magistrate. The accused stated that he had full faith in the ASI and he could search him. The A.S.I. then conducted the search in the Jhola On search of he was found carrying opium weighing one kg. wrapped in plastic bag. Out of this, 5 grams of opium was separated as sample and put into dabi tin and sealed with the seal of H.S. The accused could not show any permit to possess the said opium. Accordingly, ruqa exhibit PA was sent to the Police station and F.I.R. was registered. After receipt of the report of the Chemical Examiner Ex. PF, challan was submitted. The learned Magistrate committed the accused to the court of Sessions to face trial. Learned trial court framed a charge under section 18 of the Act. 3. The prosecution examined as many as five witnesses (PW. 1 to PW. 5) in support of its case. In the statement under section 313 of the Criminal Procedure Code, the accused denied the allegation and claimed that he has been falsely implicated in the case. One DW was also produced in his defence by the accused. 4. Learned counsel appearing for the appellant, firstly contended that there was violation of provisions section 50 of the Act. In the statement under section 313 of the Criminal Procedure Code, the accused denied the allegation and claimed that he has been falsely implicated in the case. One DW was also produced in his defence by the accused. 4. Learned counsel appearing for the appellant, firstly contended that there was violation of provisions section 50 of the Act. He also contended that the prosecution has not been able to bring home the guilt satisfying the basic ingredients for conviction under the above referred provisions of the Act. The only independent witness Balwinder Singh was also not examined. However, without touching the merit of these contentions, learned counsel for the appellant primarily submitted that he does not press his afore-noticed contentions though they have material bearing on the case of the prosecution, but would argue and be permitted to press submissions in regard to quantum of sentence only. 5. Learned counsel for the State, on the other hand, submits that the prosecution has been able to prove its case beyond any reasonable doubt. Non-examination of independent witness did not vitiate the case of the prosecution insofar as the prosecution has been able to establish his case by leading cogent evidence supported by chemical examiner. As such, no liberal view need to be taken in favour of the accused as he was carrying heavy quantity of opium. 6. As already noticed, the only argument raised by the counsel for the appellant is in relation to the quantum of punishment. It is argued that in view of the various amendments made to the provisions of the Act, particularly in section 18 of the Act, a liberal view may be taken in regard to imposition of punishment upon the accused. The Legislative scheme which apparently is projected under the amended provisions of section 18 of the Act, is primarily based on activity of the accused in relation to the contravention, quantity involved and other attendant circumstances, as postulated under various provisions of this Act. Under clause (a) of section 18 of the Act, punishment is related to small quantity whereas under clause (b) commercial quantity as specified in the notification issued under the provisions of the Act, is the foundation for the imposition of the punishment. Clause (c) is related to any other case. Under clause (a) of section 18 of the Act, punishment is related to small quantity whereas under clause (b) commercial quantity as specified in the notification issued under the provisions of the Act, is the foundation for the imposition of the punishment. Clause (c) is related to any other case. If the case does not fall either of the clauses (a) and (b), then it has to be dealt with and punished in terms of clause (c), where rigorous imprisonment may be extended to 10 years with fine which may extend to one lac rupees to a person who in contravention to any provisions of the Act or any rule or order made thereunder or conditions of licence granted, does any of the act specified in the section. The quantum of quantity has been specified in the notification issued by the Ministry of Finance Department of Revenue on 16th July, 1996 in exercise of the power conferred by clauses (viia) and (xxiiia) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 7. In the present case, we are concerned with the contraband known as opium. Entry 92 specifies the quantity which will fall under the respective clauses of section 18 in relation to opium. Small quantity is 25 grams while commercial quantity would be 2.5 Kgs and above. Only 1 Kg opium is alleged to have been recovered from the possession of the accused, as such, the case would fall under clause (c) of section 18 of the Act. Certainly the Legislature has vested discretion in the court to impose such punishment which may extend to 10 years imprisonment and a fine which may extend to Rs. 1 lac. The court would have to examine the facts and circumstances of each case and proceed to impose punishment, if the accused is found guilty in accordance with the settled principle of law. Carriage of one kg. opium is not a commercial quantity in terms of the provisions of the Act. The Legislature in its wisdom has amended the law obviously to make punishment directly relatable to the quantity of the contraband found in possession of a person, amongst other circumstances, quantity of the contraband is one of the main pertinent consideration before the Court. The Court would be called upon to examine amongst others activities of the accused, his involvement in similar offences and other attendant circumstances. The Court would be called upon to examine amongst others activities of the accused, his involvement in similar offences and other attendant circumstances. However, in the present case, the accused was carrying only 1 kgs. of opium, he was not involved in any other such offence prior or after the registration of the present F.I.R. The accused has been on bail since July 1990 and has not mis-used his liberty particularly by indulging in the activities of the present kind. In these circumstances, it will be proper and in consonance with the legislative approach of the statute that somewhat liberal view be taken in regard to quantum of punishment. 8. Another argument that was raised on behalf of the State is that the accused had been found guilty, convicted and even the appeal was filed prior to the date of amendment, as such, the accused is not entitled to the benefits of any of the amended provisions. 9. This argument need not detain this court any longer as this question is no more res-interga and stands settled by the Division Bench Judgment of this Court in case of Ram Singh v. State of Haryana, 2002(3) Recent Criminal Reports (Criminal) 728 (DB), where their Lordships, while relying upon the judgments of the Honble Supreme Court, held as under :- "18. Thus appeal being rehearing of the entire case and is pending before the Court would be entitled to the benefit of amending Act No. 9 of 2001. As mentioned above the exclusion of benefit of liberalise provisions of the Act as substituted by Act No. 9 of 2001 to cases pending in appeal is without any intelligible differentia and without having any reasonable nexus with the object to be achieved, therefore, we hereby strike down the proviso and issue a writ in the nature of mandamus directing that the proviso to sub-section (1) of Section 41 of the Act No. 9 of 2001 "provided that nothing in the section shall apply to the cases pending in appeal" shall not be given effect to being violative of Article 14 of the Constitution of India being a classification without any reasonable nexus with the object to be achieved. Consequently, it is held that Act No. 9 of 2001 shall be applicable to all cases pending before the Courts or under investigation at the commencement of the said Act and shall be disposed of in accordance with the provisions of the principal Act as amended by Act No. 9 of 2001 irrespective of the fact whether such cases are pending in appeal or before the trial court." 10. Having heard learned counsel for the parties at some length and perused the evidence on record, I am of the considered view that the accused deserves certain liberal attitude in regard to quantum of punishment and accordingly, I reduce the sentence awarded to the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs. 10,000/-. In default thereof, to further suffer rigorous imprisonment for six months. The appeal is accordingly disposed of Order accordingly.