Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 611 (PNJ)

Bhim Singh @ Bhima v. State Of Haryana

2009-03-27

KANWALJIT SINGH AHLUWALIA

body2009
Judgment Kanwaljit Singh Ahluwalia, J. 1. Present appeal has been preferred by Bhim Singh @ Bhima. He has been convicted and sentenced by the Court of Special Judge, Panipat under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1.00 lakh, in default of payment of fine to further undergo rigorous imprisonment for 2-1/2 years. 2. Appellant was nominated as accused in case FIR No. 7 dated 12.01.2004 registered at Police Station Sadar Panipat, under Section 18 of the NDPS Act. A Rukka (Ex.PG) was sent by PW-4 Inspector Dilbagh Singh to Police Station Sadar Panipat for registration of case. In the rukka, it was stated that PW-4 Inspector Dilbagh Singh, along with his companion officials, was present in the area of Pepsi Chowk, G.T. Road, Badoli for patrolling and holding Nakabandi. One person, on seeing the police party, stepped backward and due to suspicion, he was apprehended at the spot. The man disclosed his name to be Bhim Singh and a notice under Section 50 of the NDPS Act was served upon him. He was carrying a bag in his right hand. A consent memo of the accused was recorded, wherein he agreed that he wanted to get himself searched before a Gazetted Officer. A message was sent to DSP on Wireless. Om Parkash Narwal, DSP Panipat came at the spot. Search was conducted and 2 kg opium was recovered from the appellant. Prosecution examined Head Constable Om Parkash as PW-1. He had tendered his affidavit (Ex.PA). He had proceeded from the Police Station to Panipat at 11.40 p.m. for delivery of special report to II- laqua Magistrate, Superintendent of Police and Deputy Superintendent of Police. Head Constable Rajinder Singh also tendered his affidavit (Ex.PC). Case property was deposited with him. He further stated that the sample was sent to the Forensic Science Laboratory on 19th January, 2004. He was examined to prove link evidence. Inspector Satbir Singh appeared as P.W-3. He stated that he was posted as SI/ SHO of Police Station Sadar Panipat. Inspector Dilbagh Singh had produced case property and the sample parcel before him. Dilbagh Singh inspector appeared as PW-4. He deposed regarding search, seizure and recovery. PW-5 Hukam Singh SI was examined to corroborate the testimony of PW-4 Inspector Dilbagh Singh. He stated that he was posted as SI/ SHO of Police Station Sadar Panipat. Inspector Dilbagh Singh had produced case property and the sample parcel before him. Dilbagh Singh inspector appeared as PW-4. He deposed regarding search, seizure and recovery. PW-5 Hukam Singh SI was examined to corroborate the testimony of PW-4 Inspector Dilbagh Singh. PW-6 Head Constable Krishan Chand stated that on 19th January. 2004, samples were handed over to him to deposit in the FSL, Madhuban. During the period the when samples remained in his possession, they were not tampered. DSP O.P. Narwal appeared as PW-7. He deposed regarding giving of notice under Section 50 of the NDPS Act to the appellant and consequent recovery. Thereafter, all incriminating evidence was put to the accused and his statement under Section 313 Cr.P.C. was recorded. Thereafter, appellant, in defence, examined Prern Singh DW-1 and Jaipal DW-2. They deposed regarding false implication of the appellant. 3. Mr. Sailender Singh appearing for the appellant has submitted that in the present case, as per prosecution, sample of opium drawn for sending to FSL, Madhuban was 50 gms, but when the sample reached the Laboratory it was found to be 70 gms. This, according to the counsel, is fata! to the prosecution case. It has further been submitted that sample was drawn on 12th January, 2004, whereas the sample was sent to the Laboratory on 19th January, 2004. Therefore, it cannot be ruled out that sample of somebody else was sent to the Laboratory. 4. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana appearing for the State has submitted that police officials are not inimical to the appellant and requisite weighing scales of accuracy are not available with the investigating agency. Therefore, error in the weight of the sample can occur. He has further submitted that delay in sending the sample can be ground to plead prejudice to the accused, but in itself, cannot be ground of acquittal, until accused is able to show that prejudice has occurred. 5. Before this Court could give serious thoughtful consideration to these arguments, Mr.Sailender Singh has stated that he will not assail conviction of the appellant, but will make an alternative prayer. 5. Before this Court could give serious thoughtful consideration to these arguments, Mr.Sailender Singh has stated that he will not assail conviction of the appellant, but will make an alternative prayer. He has stated that as per the table attached, after amendment in October, 2001 to Sub Clause (viia) and (xxiiia) of Section 2 of the NDPS Act, distinction in commercial quantity and less than commercial quantity has been made in the Act itself. He stated that entry No. 92 prescribes small and commercial quantity of opium. It is stated that 25 gms is a small quantity and 2.5 kg is a commercial quantity. Therefore, it has been canvassed before me that recovery of 2 kg of opium falls with non commercial quantity and therefore, maximum sentence prescribed can extend upto ten years and a fine of Rs. 1.00 lakh. 6. Counsel for the appellant has submitted that the trial Court has awarded maximum sentence. It has also been submitted that the Court has not taken the mitigating circumstances into consideration. 7. I find merit in this contention. 8. Mr. S.S. Mor, Senior DAG Haryana has submitted that once conviction is maintained, he will not seriously contest the quantum of sentence, as the same is discretion of the Court. 9. In the present case, recovery was effected from the appellant in January 2004. Appellant has already suffered a protracted trial of five years. Mr. Sailender Singh has stated that appellant has large family to support and he is a poor person. 10. Taking into consideration the submissions made by counsel for the appellant, sentence awarded upon the appellant is reduced from ten years to 3-1/2 years. Sentence of fine is also reduced from Rs. 1.00 lakh to Rs. 40,000/-. In case fine is not deposited, appellant will further undergo rigorous imprisonment for six months. With these modifications in the sentence, present appeal is disposed off.