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2004 DIGILAW 113 (PNJ)

Bachan Singh v. State of Haryana

2004-02-02

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Bachan Singh son of Bakhtawar Singh the appellant herein stands convicted by learned Additional Sessions Judge, Ambala vide judgment dated 14.11.1994 under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred to as the Act) 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 one year. Aggrieved by the impugned judgment of conviction, he has preferred the present appeal. 2. In short, the case of the prosecution is that on 27.11.1992, SI Surjit Singh PW-4, alongwith other police officials was present on bus stop of village Mohra in connection with general patrol duty when he received secret information that a person alongwith a polythene bag in his hand was standing in front of Bata Shoe Factory near village Mohra and that he was having some contraband article in his bag. A raiding party was formed and it reached in front of Bata Shoe Company and over powered the present appellant. In terms of compliance of section 50 of the Act, he served notice Ex. PE but the appellant consented to be searched by a gazetted officer and signed the said notice. He was thereafter taken to the office of Karan Singh DSP Headquarter and on his direction the bag of the appellant was searched. The said bag was containing opium weighing 1500 grams. Two samples of 50 grams each were separated from the recovered material and the remaining opium was put into a separate packet. All the three packets were sealed with the seal impression KS (Karan Singh DSP) and after its use the same was given to DSP Karan Singh. Other legal formalities were also done on the spot. A ruqa was sent for the registration of the formal FIR and consequently formal FIR Ex. PC was registered. After completion of the investigation the present appellant was charged under section 18 of the Act. 3. In order to prove its case the prosecution has examined four witnesses besides placing on record affidavits of Constable Mukesh Kumar Ex. PB and MHC Raghubir Chand Ex. PD. 4. The plea taken by the appellant was of false implication. However, the appellant did not adduce any defence witness. 5. 3. In order to prove its case the prosecution has examined four witnesses besides placing on record affidavits of Constable Mukesh Kumar Ex. PB and MHC Raghubir Chand Ex. PD. 4. The plea taken by the appellant was of false implication. However, the appellant did not adduce any defence witness. 5. After examining the entire evidence, the trial court has convicted and sentenced the appellant as indicated above. 6. I have heard Mr. Pritam Saini, learned counsel for the appellant and Mr. Sanjiv Dahiya, learned State counsel. With their assistance, I have also gone through the records of the case. 7. The main argument advanced by the learned counsel for the appellant is that the notice Ex. PE under section 50 of the Act given to the appellant is partial in nature in so much so that the appellant was not asked as to whether he wanted to get his search effected from a Magistrate as well. My attention has been drawn to the notice Ex. PE in this regard. The learned counsel for the appellant contends that on this basic lacuna alone, the appellant deserves acquittal. 8. Other argument advanced by the learned counsel for the appellant is that the case of the prosecution does not get support from any independent source and as such the alleged recovery becomes doubtful. 9. The third contention raised by the learned counsel for the appellant is that there are certain discrepancies in the statements of the official witnesses which go to the root of the case and speak volumes of the false implication of the present appellant. 10. In the alternative the learned counsel for the appellant has submitted that the allegedly recovery from the appellant was of 1500 grams of opium which according to the amended provisions does not fall under the head "commercial quantity". He then contends that the appellant has already remained in custody for 15 months and as such he deserves a lenient view with regard to quantum of substantive sentence and fine. 11. The learned State counsel, however, has opposed the contention of the learned counsel for the appellant and states that the case of the prosecution is proved to the hilt. 11. The learned State counsel, however, has opposed the contention of the learned counsel for the appellant and states that the case of the prosecution is proved to the hilt. He then contends that there is no reason to disbelieve the official witnesses who would not depose against the appellant and that the recovery was also effected in the presence of Karan Singh DSP PW1, a gazetted officer. The learned State counsel then contends that the appellant otherwise does not deserve any sympathy so far as quantum of sentence or fine is concerned. 12. After hearing the rival contentions of both the sides, I am of the view that the conviction of appellant is well merited. 13. The main argument advanced by the learned counsel for the appellant is repelled having no force in it. Section 50 of the Act is applicable only to the personal search. Contraband recovered from the bag of the appellant does not attract section 50 of the Act at all. In a latest judgment of Honble Apex Court rendered in Rajendra and another v. State of Madhya Pradesh, 2004(1) RCR 349 (SC), their Lordships have held that section 50 of the Act does not extend to search of a vehicle or container or a bag or premises. In the instant case, the recovery is effected from a bag being carried by the appellant and as such section 50 of the Act is not applicable. 14. The other arguments also do not hold water. No doubt, no independent witness has joined in this case by PW4 SI Surjit Singh but this fact by itself has not weaken the case of the prosecution. In the present case after the appellant was apprehended, he was immediately taken to Karan Singh DSP Headquarters in his office at about 5.30 PM and he after verifying all the facts directed that the search be conducted and it is thereafter that opium was recovered from the bag being carried by the appellant. In my considered view, there is no reason to disbelieve the conduct of official witnesses in this regard. 15. No doubt that some minor discrepancies have occurred in the statements of the official witnesses and my attention has also drawn to those discrepancies but in my view these are not of grave nature so as to disbelieve the alleged recovery from the appellant. 16. 15. No doubt that some minor discrepancies have occurred in the statements of the official witnesses and my attention has also drawn to those discrepancies but in my view these are not of grave nature so as to disbelieve the alleged recovery from the appellant. 16. The net result of the aforesaid discussion is that the prosecution has been able to prove its charge agaisnt the appellant beyond any shadow of doubt. 17. So far as quantum of sentence is concerned, I find force in the submissions made by the learned counsel for the appellant. I have perused the order dated 11.12.1995 vide which the substantive sentence of the appellant was suspended. The said order reflects that the appellant had remained in custody for about 15 months. This fact is otherwise not disputed by the learned State counsel. The alleged recovery made from the appellant is of 1500 grams of opium. According to the amended provisions of the Act, the said recovery does not fall under the head commercial quantity. The sentence was imposed upon the appellant on the assumption that he deserves rigorous imprisonment from ten years which was the minimum sentence. Now the law has undergone change and the minimum sentencee which is to be imposed upon the accused would be applicable only to the recovery of contraband which falls under the head commercial quantity. There is otherwise no dispute that the provisions of new Act as substituted by Act No. 9 of 2001 would also be applicable to the appeals although the alleged offences under this Act were committed prior to the amendment. Reference can be made to a Division Bench judgment of this Court reported as Ram Singh v. State of Haryana, 2002(3) RCR 728 (P&H). Keeping in view the alleged recovery effected from the appellant and having regard to the circumstances of the case, the ends of justice would be adequately met if the sentences imposed upon the appellant is reduced to two and a half years from ten years and, the sentence of fine is reduced to Rs. 3000/- and in default of payment of fine, the appellant shall further undergo RI for a period of three months. Ordered accordingly. With the modification in the quantum of sentence as indicated above, the present appeal is hereby dismissed. Let information of this judgment be sent to the concerned quarters. Appeal dismissed.