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2010 DIGILAW 746 (PNJ)

Karnail Singh v. State of Punjab

2010-02-01

T.P.S.MANN

body2010
JUDGMENT T.P.S. Mann, J 1. The appellant was tried under Section 15 of the Narcotic Drugs And Psychotropic Substances Act, 1985 for being found in possession of 22½ kgs. of poppy husk. Vide judgment and order dated 7.2.2005, learned Judge, Special Court, Sangrur convicted the appellant for the said offence and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, in default of payment of fine, to undergo further rigorous imprisonment for three months. Aggrieved of the same, the appellant has filed the present appeal. 2. According to the prosecution, on 20.7.2004, ASI Devinder Singh of Police Station Sunam, alongwith other police officials, was going from Khadial on a government vehicle. When the police party reached at the bridge of the drain, then one person was seen sitting in the shade of the tree on the left side of the road on the bank of the drain and open jute bag and plastic mug were lying by his side. On seeing the police party, he tried to slip away, however, he was apprehended on suspicion. When asked, he disclosed his name as Karnail Singh son of Naginder Singh, caste Jat, resident of village Chathe Nanhera. ASI Devinder Singh searched the jute bag belonging to the appellant and found that it was containing poppy husk. Two samples of 250 gms. each, out of the recovered poppy husk, were taken. The remaining poppy husk, when weighed was found to be 22 kgs. Plastic mug was also taken into possession. All the parcels were sealed by ASI Devinder Singh with his seal bearing inscription 'DS' and taken into possession vide separate recovery memo. The seal after use was handed over to HC Jagdev Singh. ASI Devinder Singh then sent a ruqa to Police Station, Sunam, on the basis of which FIR No. 302 dated 20.7.2004 was registered against the appellant under Section 15 of the Act. 3. After completion of the investigation and requisite formalities, the challan was presented against the appellant. He was charged for an offence under Section 15 of the Act to which he pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined PW1 Inspector Harinder Singh, PW2 Narinder Singh, PW3 MHC Mehar Singh, PW4 ASI Devinder Singh and PW5 HC Jagdev Singh. The remaining witnesses were given up as unnecessary. He was charged for an offence under Section 15 of the Act to which he pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined PW1 Inspector Harinder Singh, PW2 Narinder Singh, PW3 MHC Mehar Singh, PW4 ASI Devinder Singh and PW5 HC Jagdev Singh. The remaining witnesses were given up as unnecessary. Report of the Forensic Science Laboratory was also tendered in evidence. 5. When the appellant was examined under Section 313 Cr.P.C., he denied the incriminating evidence appearing against him. He pleaded false implication and claimed that he was innocent. According to him, he was going from village Chajjli to Lehra on scooter. However, he was stopped at a police picket set up in village Chhajli. He showed the affidavit regarding purchase of the scooter. However, there was an altercation between him and ASI Devinder Singh and the latter planted a false case upon him. The appellant, however, did not produce any evidence in defence. 6. As mentioned above, the trial Court believed the prosecution version and convicted and sentenced the appellant. Learned counsel for the appellant has submitted that the appellant could not be in conscious possession of the contraband. According to the prosecution, he was sitting in the shade of a tree, whereas the jute bag and plastic mug were allegedly lying at a distance from him. Therefore, he could not be connected with the contraband. 7. I have gone through the statement of PW4 ASI Devinder Singh, photocopy of which has been produced for perusal by learned counsel for the appellant. In his testimony, ASI Devinder Singh stated that the accused was sitting near the bag which was lying at a distance of one foot from him. This is sufficient indication of the fact that the bag containing the contraband and the mug was in conscious possession of the appellant. There is no evidence that the contraband was lying at a considerable distance from the appellant or that some other persons were also present there. Moreover, on seeing the police party, the appellant tried to run away from the place where the contraband was lying. Under these circumstances, no benefit of argument raised on behalf of the appellant can be given to him. 8. Moreover, on seeing the police party, the appellant tried to run away from the place where the contraband was lying. Under these circumstances, no benefit of argument raised on behalf of the appellant can be given to him. 8. It is further submitted that on letter/request dated 26.7.2004 made by SHO Police Station Sunam, which was, thereafter, forwarded to the Chemical Examiner, Punjab by S.S.P. Sangrur, the date of the FIR was mentioned as 25.7.2004, whereas the FIR was registered on 20.7.2004. Even in its report, the Deputy Chemical Examiner mentioned that it was being issued in pursuance of the letter/request received from S.S.P. Sangrur vide endorsement dated 21.7.2004 whereas such an endorsement was made on 27.7.2004. Therefore, no implicit reliance can be placed upon the report of the Chemical Examiner. 9. I have perused the photocopy of the report of the Chemical Examiner. On the top of the request/letter made by SHO, Police Station, Sunam, he clearly mentioned the date of FIR No. 302 as 20.7.2004. It appears that due to oversight or slip of pen, the date of the FIR was wrongly mentioned as 25.7.2004 in the subsequent portion of the letter/request. Similarly, the date of the endorsement made by Senior Superintendent of Police, Sangrur as noticed by the Chemical Examiner to be 21.7.2004 can be explained. 10. Learned counsel for the appellant also submitted that while forwarding the sample of the contraband to the Chemical Examiner, SHO, Police Station, Sunam did not send the specimen of the seal which had been put on the sample and, therefore, it cannot be said that the sample, so analysed by the Chemical Examiner, belonged to and recovered from the appellant. 11. In its report, the Chemical Examiner clearly stated that the seals of the exhibit were intact on arrival and tallied with the specimen seal sent. In such a situation, it cannot be said that the specimen seal had not been sent by SHO, Police Sation, Sunam. 12. Finally, it is submitted that the alleged recovery from the appellant was effected on 20.7.2004. He remained in custody through out the trial of the case which culminated on 7.2.2005. It was only on 1.3.2005 that he was ordered to be released on bail during the pendency of the appeal when his sentence was suspended. 12. Finally, it is submitted that the alleged recovery from the appellant was effected on 20.7.2004. He remained in custody through out the trial of the case which culminated on 7.2.2005. It was only on 1.3.2005 that he was ordered to be released on bail during the pendency of the appeal when his sentence was suspended. He has, thus, undergone a substantive sentence of about 7½ months out of the sentence of two years imposed upon him. The appellant is not a previous convict. He is a poor person and sole bread winner for his family. Sending him behind the bars, once again, so as to serve the remaining sentence of imprisonment, would bring hardship to his family. Therefore, the sentence of imprisonment be reduced to that already undergone by him. 13. Learned State counsel has opposed the prayer regarding reduction of the sentence by submitting that the appellant was found in possession of 22½ kgs. of poppy husk and, therefore, no leniency should be shown to him. 14. The appellant has been facing the agony of criminal prosecution since July, 2004. Out of the sentence of two years imposed upon him, he has already undergone a substantive sentence of about 7½ months. He is claiming to be a first offender and a poor person. His entire family is said to be dependent upon him. Under these circumstances, this Court is of the view that ends of justice would be best met if the sentence of imprisonment imposed upon the appellant is reduced to that already undergone by him. 15. Resultantly, conviction of the appellant under Section 15 of the Narcotic Drugs And Psychotropic Substances Act, 1985 is maintained. His sentence of imprisonment is reduced to that already undergone by him. However, the sentence of fine, alongwith its default clause, is maintained. The appeal is, accordingly, disposed of. Appeal disposed of.