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2014 DIGILAW 1 (PNJ)

Joginder Singh v. State of Punjab

2014-01-03

RITU BAHRI

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Ritu Bahri, J. The present appeal is directed against the judgment dated 20.04.2001, passed by the Judge Special Court, Patiala whereby the accused-appellant was sentenced to undergone minimum sentence of 10 years with fine of Rs. 1 lac and in default of payment of fine to further undergo R.I. for two years, for the offence punishable under Section 18 of the NDPS Act. The facts, in brief are that on 22.09.1999, S.I. Krishan Kumar, Incharge Divn. No. 4, Patiala along with other police officials was present at Lahori Gate, near Mall road, Patiala in vehicle Allwyn Nissar for patrolling. On receiving secret information, S.I. Krishan Kumar sent ruqa Ex. PB to the police station, on the basis of which formal F.I.R. was registered by ASI Gurbaj Singh. The police party then proceeded towards Jujhar Nagar and when they reached near bus stand, Harnam Singh @ Mihan, an independent witness met them and was also joined. When they reached at the bandh of Jujhar Nagar, accused Joginder Singh was seen standing there having a jhola in his right hand. On seeing the police party, he tried to slip back, but on suspicion, he was apprehended. On giving option by S.I. Krishan Kumar with regard to search, the accused replied that he may be searched in the presence of Gazetted Officer. His consent memo (Ex PC) was recorded, which was signed by the accused and attested by ASI Tejinder Singh and Haryana Singh P.W. A wireless message was sent to S.P. City, who arrived at the spot and gave option to the accused and recorded his consent memo Ex. PD. On his instructions, S.I. Krishan Kumar took the search of his jhola carried by the accused, which found to contain opium wrapped in a glazed paper. The accused failed to produce any valid permit or licence for the possession of the opium. The sample of 20 grams each were separated and put in to small dabbi tin and made into parcels. The residue opium when weighed was found to be 660 gms, which was put in another dabba tine. Samples and dabba tin was sealed with the seal bearing impression KK of S.I. Krishan Kumar and GS of SP Gurpreet Singh Gill. Sample seal (Ex P2) was prepared. The seal after use was handed over to HC Gurmail Singh and that of SP Gurpreet Sing was retained. Samples and dabba tin was sealed with the seal bearing impression KK of S.I. Krishan Kumar and GS of SP Gurpreet Singh Gill. Sample seal (Ex P2) was prepared. The seal after use was handed over to HC Gurmail Singh and that of SP Gurpreet Sing was retained. The entire case property was taken into possession vide memo Ex. PE. The accused was arrested vide. Site plan Ex. PH was prepared. The case property along with accused was produced before Inspector Rajwinder Singh. 2. After getting the report from the Chemical Examiner, challan was presented against the accused and thereafter, he was charged under Section 18 of the NDPS Act vide order dated 17.01.2000 to which he pleaded not guilty and claimed trial. 3. In support of its case, prosecution examined Rajwinder Singh P.W. 1, HC Bhupinder Singh P.W. 2, S.I. Krishan Kumar P.W. 3, ASI Tejinder Singh P.W. 4, C. Jaswinder Singh P.W. 5 and SP Gurpreet Singh Gill P.W. 6. 4. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the prosecution allegations and stated the he is innocent. He has led no evidence in his defence. 5. The trial Court after going through the depositions of the witnesses, has convicted the accused as mentioned above. 6. The defence counsel has argued that the prosecution rests on the testimonial of only official witnesses and there is no independent corroboration to their testimonies. Harnam Singh the only independent witness joined with the police party, has not been produced and has been given up on the ground that he has been won over by the accused. The trial Court has concluded that merely on the ground that the witnesses are only official witness, the accused cannot be acquitted of the charges framed against him. There is no allegation that the police party had any enmity against the accused. All the official witnesses stood the testimony of cross examination and nothing adverse came in their evidence. The argument of learned defence counsel that there was noncompliance of Section 50 and 57 of the NDPS Act did not cause any prejudice or miscarriage of justice, therefore, no benefit was given to the accused. 7. The argument of learned defence counsel that the seal after use was handed over to HC Gurmail Singh, casts serious doubt and suspicion about the prosecution case. 7. The argument of learned defence counsel that the seal after use was handed over to HC Gurmail Singh, casts serious doubt and suspicion about the prosecution case. To deal with this argument, lower Appellate Court has relied upon a judgment Parlad vs. State of Haryana, 1998 (4) RCR (Crl) 875 wherein it has been held as under:- 18. The handing over of the seal to an independent witness is only a rule of caution so that chances of tampering with incriminating articles may not be there on the part of the police or the investigating agency, which has the vast powers under the Act. 8. Learned counsel for the respondent has argued that amendment was carried out by government notification dated 20.04.2001 whereby the contravention of quantity lesser than the commercial quantity to impose a punishment which may extend to 10 years. The recovery in the present case is 700 grams of opium which is less than the commercial quantity which is 2.5 kg of opium as per entry No. 92 of the NDPS Act. Hence, even after the amendment in the year 2001, the punishment can extend upto 10 years. 9. A Division Bench of this Court in a case of Ram Singh vs. State of Haryana, 2002(3) RCR Cri. 728, has considered Section 41(1) of the NDPS Act and held that the amendment which was made on 20.03.2001 will be applicable to the pending appeals. Subsequently, it was followed by this Court in cases of Vir Bhan vs. The State of Haryana, 2003 (1) RCR (Cri.) 327, Gurdeep Singh vs. State of Haryana, 2003 (2) R.C.R. Cri. 820 and Mukhtiar Singh vs. State of Punjab, 2011 (5) RCR (Crl) 610. 10. In the present case, the appellant has already undergone 02 years 08 months and 02 days in custody up to 14.07.2013. Till date, he has undergone more than 03 years in custody. He is not facing any other trial. 11. Keeping in view the above submissions made by the learned counsel for the appellant, it is a fit case where the sentence qua imprisonment is liable to be reduced to already undergone by the appellant. The revision is dismissed. However, the conviction of the appellant under Section 18 of the NDPS Act is maintained and the sentence qua the imprisonment of the appellant is reduced to the period already undergone by him.