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2012 DIGILAW 841 (PNJ)

Surinder Singh v. State of Punjab

2012-07-03

RAMESHWAR SINGH MALIK

body2012
JUDGMENT Rameshwar Singh Malik, J. The present appeal is directed against the impugned judgment of conviction and order of sentence of even date, i.e., 28.10.2011 passed by learned Special Judge, Shaheed Bhagat Singh Nagar (Nawanshahr) arising out of FIR No.39 dated 10.3.2008 registered under Section 15 of NDPS Act at Police Station Banga, whereby the appellant was convicted for having in his conscious possession 15 Kg. of poppy husk without any licence or permit and he was accordingly sentenced for one year rigorous imprisonment and to pay fine of Rs.5,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for two months. The facts of the case, in brief, which emerge from the record of the case are that on 10.3.2008, ASI Dilbagh Singh was on patrolling duty along with other police officials, in connection with checking of suspicious persons. In government vehicle bearing No. PB-12G-9050, they were going towards Village Kamam through Banga to Jhingra and Village Herian. The vehicle was being driven by Constable Saudagar Singh. When the police party reached ahead of Gurudwara Herian, one person was found coming from the side of Village Kamam on katcha path. He was carrying a plastic bag on his head. On seeing the police party, he got perplexed and tried to turn back. On suspicion, he was apprehended by the Investigating Officer with the help of other members of the police party. On asking, he disclosed his name as Surinder singh son of Des Raj resident of Village Herian, Police Station Banga. The Investigating Officer disclosed his name, rank and posting to the accused and apprised him that he was suspected to carry some intoxicant in the plastic bag and his search was to be conducted. The Investigating Officer apprised the accused of his legal right to get the search conducted in presence of some Gazetted Officer or a Magistrate. However, the accused reposed confidence in ASI Dilbagh Singh. Efforts were made to join some public witness for the purpose of investigation but nobody was ready. Consent of the accused was recorded, which was duly attested by the witnesses. Thereafter, the search of the bag was conducted and poppy husk was found therein. 250 Grams of poppy husk was separated from the recovered contraband, as sample and its parcel was prepared. The remaining poppy husk, on weighing was found to be 14 Kg. 750 grams. Consent of the accused was recorded, which was duly attested by the witnesses. Thereafter, the search of the bag was conducted and poppy husk was found therein. 250 Grams of poppy husk was separated from the recovered contraband, as sample and its parcel was prepared. The remaining poppy husk, on weighing was found to be 14 Kg. 750 grams. The poppy husk was put into the same bag and its parcel was prepared. Both the parcels were sealed by the Investigating Officer with his seal bearing impression `DS'. Specimen seal impression was prepared separately. The seal after its use was handed over to Head Constable Nirmal Singh. The case property was taken into police possession vide separate recovery memo. The accused could not produce any licence or permit to keep 15 Kgs. of poppy husk in his conscious possession. Ruqa was sent to the Police Station for registration of the First Information Report (for short, `the FIR'). On the basis of the ruqa, the FIR was registered against the accused. Rough site plan on the place of recovery was prepared. Investigation was conducted and after conclusion thereof, report under Section 173 Cr.P.C, along with report of Chemical Examiner, was presented to the learned Court of competent jurisdiction. After perusal of the report under Section 173 Cr.P.C and other documents on the record, a prima-facie case was found to be made out against the accused. Accordingly, he was charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The accused pleaded not guilty and he claimed trial. In order to prove its case, the prosecution examined ASI Lakhvir Singh as PW1, who has prepared the challan against the accused. MHC Jarnail Singh was examined as PW2, who tendered into evidence his duly sworn affidavit as Ex.PA. SI Rupinderjit Singh was examined as PW3, who duly proved on record the form No.29, Ex.PA, specimen seal impression Ex.PB and entrustment memo Ex.PC. HC Mehma Singh was examined as PW4, who tendered into evidence his duly sworn affidavit as Ex.P4/A. Identification memo Ex.PA was proved by HC Ashok Kumar, who was examined as PW5. SI Rupinderjit Singh was examined as PW3, who duly proved on record the form No.29, Ex.PA, specimen seal impression Ex.PB and entrustment memo Ex.PC. HC Mehma Singh was examined as PW4, who tendered into evidence his duly sworn affidavit as Ex.P4/A. Identification memo Ex.PA was proved by HC Ashok Kumar, who was examined as PW5. SI Dilbagh Singh was examined as PW6, who proved on record the consent statement as Ex.PW5/A, specimen seal impression as Ex.PJ/1, recovery memo as Ex.PW5/B, ruqa Ex.PW5/C, FIR Ex.PW5/D, rough site plan Ex.PW5/G, arrest memo Ex.PW5/G, personal search memo Ex.PW5/H, application for seeking remand as Ex.PW5/J and report of the Chemical Examiner as Ex.PW1/J. Nirmal Singh ASI was examined as PW7, who also proved the aforesaid documents and corroborated the version of PW6 SI Dilbagh Singh. Thereafter, the learned Additional Public Prosecutor made a statement before the Court for closing the prosecution evidence. On closing of its evidence by the prosecution, the statement of the accused was recorded under Section 313 Cr.P.C wherein he denied the allegations levelled against him. Although he stated that he would lead his defence evidence but he did not examine any witness. After hearing the learned counsel for the parties and going through the records of the case, the learned trial Court, vide its judgment of conviction and order of sentence of even date, i.e., 28.10.2011, convicted the appellant and sentenced him for one year RI and to pay a fine of Rs.5,000/-. In default of payment of fine, the appellant was ordered to further undergo RI for two months. Feeling aggrieved against the above said impugned judgment of conviction and order of sentence, the appellant has filed the instant appeal before this Court. Learned counsel for the appellant, at the very outset, fairly states that he does not intend to press this appeal on merits, instead, he submits that since the appellant has already undergone the actual sentence for about nine months out of total sentence of one year RI, this Court may consider to reduce his sentence suitably. Learned counsel for the appellant further submits that as a matter of fact, the appellant was an addict and has been treated in the De-addiction Centre in the government hospital. After having medical treatment, the appellant is no more an addict. Learned counsel for the appellant further submits that as a matter of fact, the appellant was an addict and has been treated in the De-addiction Centre in the government hospital. After having medical treatment, the appellant is no more an addict. Thus, learned counsel for the appellant would contend that in the given circumstances of the present case, the appellant deserves to be treated leniently so far as the sentence part is concerned. Learned State Counsel also fairly states that so far as medical treatment of the appellant in De-addiction Centre is concerned, the same is not denied. On the other hand, learned State Counsel submits that since the appellant had been found involved in number of FIRs and that too, under the NDPS Act, he does not deserve any leniency for the reduction of his sentence. Faced with the above-said situation, learned counsel for the appellant refers to the order dated 14.2.2011 passed by this Court in Crl. Misc. No. M-215 of 2011 filed by the appellant vide which he was granted bail so as to enable him to undergo medical treatment in the de-addiction centre. The order passed by this Court on 14.2.2011 reads as under:- “The petitioner seeks regular bail in a case registered against him on 31.07.2010 for the offence under Section 18 of the NDPS Act at Police Station Chajjii, District Sangrur. The petitioner was apprehended in the case with 2 Kgs. 500 Grams opium. As per Chemical Examiner's report 3.3% of morphine was detected in 3 Grams of sample that was taken. The morphine contents, in the recovered contraband, comes to 82.5 Grams, which, it is submitted, is less than commercial quantity. On the last date of hearing, learned counsel for the State has submitted that the petitioner was involved in five other cases out of which four were under the NDPS Act. It may be noticed that FIR No.65 dated 01.08.1990 stands registered at Police Station Gari shankar of the offence under Section 25 of the Arms Act. In the said case, learned counsel for the petitioner submits that the petitioner has been acquitted. In FIR No.185 dated 31.07.2002 registered at Police Station Banga under Section 21 of the Act, the petitioner was apprehended with 25 Grams of smack. Vide order dated 19.04.2004, he was sentenced to 1½ months of imprisonment; besides, pay a fine of Rs.500/- as he was a first offender. In FIR No.185 dated 31.07.2002 registered at Police Station Banga under Section 21 of the Act, the petitioner was apprehended with 25 Grams of smack. Vide order dated 19.04.2004, he was sentenced to 1½ months of imprisonment; besides, pay a fine of Rs.500/- as he was a first offender. In FIR No.9 dated 21.01.2007, it is submitted that the petitioner was found in possession of 5 Grams of smack. In the said case, the petitioner made a confession and he was held guilty for the offence under Section 21 of the NDPS Act vide order dated 16.03.2007. He was sentenced to undergo rigorous imprisonment for one month; besides, pay a fine of Rs.1500/-vide order dated 16.03.2007. In FIR No.147 dated 19.06.2007 registered at Police Station Banga for the offence under Section 15 of the NDPS Act, the petitioner was apprehended with 2 Kgs of poppy husk. The petitioner made a confession and the learned Judge, Special Court, Nawanshahar, vide order dated 02.04.2009, observed that the petitioner has saved the precious time of the Court and he was sentenced to undergo rigorous imprisonment for the period already undergone by him; besides pay a fine of Rs.3000/- under Section 15 of the NDPS Act. In FIR No.39 dated 10.03.2008 registered at police station Banga for the offence under Section 15 of the NDPS, the petitioner is facing trial. Learned counsel for the petitioner submits that the petitioner in fact is an addict and only small quantity has been recovered from him. It is submitted that the petitioner is ready to undergo medical treatment for de-addiction from a hospital or an institute maintained or recognized by Government or a local authority in terms of Section 64-A of the NDPS Act. In the facts and circumstances, it would be just and expedient if the petitioner is released on bail and sent to the concerned medical authority so as to enable the petitioner to undergo treatment for de-addiction. Accordingly, the petitioner on his furnishing personal bond and two heavy sureties to the satisfaction of the learned Chief Judicial Magistrate, Sangrur, shall be admitted to bail. The petitioner shall appear before the Civil Surgeon, Nawanshahar for the purpose of de-addiction who shall examine the petitioner and refer him to undergo medical treatment for de-addiction from a hospital or an institute maintained or recognized by Government or a local authority. The petitioner shall appear before the Civil Surgeon, Nawanshahar for the purpose of de-addiction who shall examine the petitioner and refer him to undergo medical treatment for de-addiction from a hospital or an institute maintained or recognized by Government or a local authority. The petitioner to appear before the Civil Surgeon, Nawanshahar on 28.02.2011. The petitioner shall inform the trial Court as to the steps being taken by him from time to time for his de-addiction.” So far as the factual aspect regarding the medical treatment given to the appellant in De-addiction Centre of the government hospital is concerned, the same has gone unrebutted. In this view of the matter, once the appellant is no more an addict, this Court is of the considered opinion that it is just and expedient that the appellant be given a chance to lead a normal life as a responsible citizen. So far as the other cases which were registered against him, are concerned, the recovery has been found of negligible quantity which shows that the appellant had been using the contraband for his personal use only. It is also an undisputed fact that the appellant had undergone about nine months of actual sentence out of total sentence of one year RI. Having heard learned counsel for the parties and after going through the record of the case, this Court is of the considered opinion that the appellant deserves to be treated leniently so far as sentence is concerned. The Hon'ble Supreme Court in 2006(4) R.C.R. (Criminal) 645 titled as “R. Soundarajan v. Seed Inspector, Coimbatore and another” observed as under:- “26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during pendency of these appeals and they are now not required to surrender. The appellants were released by this Court during pendency of these appeals and they are now not required to surrender. The fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment.” In another case titled as “Umrao Singh v. State of Haryana, 1981 AIR (SC) 1723,” the Hon'ble Supreme Court observed as under:- “After hearing counsel for the parties, we are satisfied that this is a case falling under the proviso of Section 16(1)(a)(i) and therefore, for adequate and special reasons, the sentence lower than the minimum prescribed could be awarded. The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/ petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents. 2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith. 3. The appeal is disposed of accordingly.” Reverting back to the facts of the present case, this Court vide its order dated 14.2.2011, reproduced above, recorded the relevant details of the case, which also include the mitigating circumstances. After giving thoughtful consideration to the contentions raised and keeping in view the peculiar fact situation of the present case, this Court is of the considered opinion that the ends of justice would be adequately met, if the sentence of the appellant is reduced to the period already undergone by him. In view of the totality of facts and circumstances of this case noted above, coupled with the reasons aforementioned, while upholding the conviction of the appellant, his sentence is ordered to be reduced to the period already undergone by him. The appeal is dismissed subject to the abovesaid modification in sentence. The appellant is directed to be set at liberty forthwith if he is not required in any other case.