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2014 DIGILAW 1788 (PNJ)

Hoshiar Singh v. State of Haryana

2014-12-22

DARSHAN SINGH

body2014
Darshan Singh, J. 1. The present appeal has been preferred against the judgment dated 12.11.2002 vide which accused-appellant Hoshiar Singh has been held guilty and convicted for the offence punishable under Section 18 Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter to be referred as 'Act') and order of sentence of the same date, vide which he has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. The brief facts of the prosecution case are that on 20.05.1999, ASI Hardev Singh, Police Station, Garhi along with other police officials was on patrolling duty and was present in the area of village Pipaltha near Gurudwara. In the meantime one person was seen coming from Ujjana path. On seeing the police party, he tried to retrace. On suspicion, he was apprehended and on interrogation he disclosed his identity as Hoshiar Singh, the present appellant. ASI Hardev Singh suspected narcotic substance in his possession and he served the accused with a notice under Section 50 of the Act Ex. PF giving him an option of search in the presence of a Gazetted officer or a Magistrate. The accused vide reply Ex. PF/1 reposed faith in ASI Hardev Singh who carried out the search and opium wrapped in a polythene was recovered from right pocket of his trouser. Out of which 10 gms was separated out as sample and residue on weighment came to 340 gms. The sample parcel and residue were separately sealed with seal bearing impression 'HS'. The case property was taken into possession vide memo Ex. PG. The Investigating Officer sent ruqa Ex. PC to the police station. On the basis of which, formal FIR Ex. PC/1 was registered. The Investigating Officer also prepared the rough site plan Ex. PH. Thereafter, ASI Hardev Singh produced the case property along with accused witnesses before SI Balbir Singh, SHO, who affixed his seal on sample and the remainder parcel and entrusted the same to ASI Hardev Singh, who deposited the case property with MHC in intact condition. Sample parcel was sent to FSL Madhuban, Karnal for examination and on completion of the investigation, the report under Section 173 Code of Criminal Procedure (for short 'Cr.P.C') was presented. 2. Sample parcel was sent to FSL Madhuban, Karnal for examination and on completion of the investigation, the report under Section 173 Code of Criminal Procedure (for short 'Cr.P.C') was presented. 2. The appellant was charge sheeted for the offence punishable under Section 18 of the Act, to which he pleaded not guilty and claimed trial. 3. In order to substantiate its case, the prosecution examined as many as six witnesses. 4. When accused-appellant examined under Section 313 Cr.P.C., he pleaded that the prosecution witnesses are interested with the success of the case and he has been falsely implicated. 5. On appreciating the evidence on record and the contentions raised by learned counsel for the parties, the learned Judge, Special Court, Jind held guilty and convicted the appellant for offence punishable under Section 18 of the Act and was awarded the sentence as mentioned in the upper part of the judgment. 6. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred. 7. I have heard Mr. K.S. Dhaliwal learned counsel for the appellant, Mr. Deepak Bura, learned Assistant A.G., Haryana and have carefully gone through the record of the case. 8. At the very outset, learned counsel for the appellant pleaded that he does not challenge the conviction of the appellant, however, he has only assailed the order on the quantum of sentence. He pleaded that accused appellant is a poor person. He was below 20 years of age at the time of commission of the offence. He was bachelor and having old parents. He has faced the agony of trial for the last more than fifteen years. He is not a previous convict. The sentence awarded by the learned trial Court is very harsh and disproportionate. He further contended that appellant has already undergone about ten months of sentence, which is a quite long period. Thus, the sentence of the appellant may be reduced to the already undergone. He also prayed for reduction in the amount of fine. 9. On the other hand, learned State counsel has contended that 350 gms of opium has been recovered from the possession of appellant. The sentence awarded by learned trial Court is just and proper and does not call for any interference by this Court. 10. I have duly considered the aforesaid contentions. 11. 9. On the other hand, learned State counsel has contended that 350 gms of opium has been recovered from the possession of appellant. The sentence awarded by learned trial Court is just and proper and does not call for any interference by this Court. 10. I have duly considered the aforesaid contentions. 11. As mentioned above, learned counsel for the appellant has not challenged the conviction of appellant recorded by the learned trial Court. The present appeal has only been contested on the quantum of sentence. Even, then it becomes duty of this Court to determine the legality of the conviction recorded by the learned trial Court. 12. As per the prosecution version, the accused appellant was apprehended by PW-6 ASI Hardev Singh on the basis of suspicion in the presence of his fellow police officials. The notice under Section 50 of the Act was served upon him. He reposed faith/confidence in the Investigation Officer. So, his search was carried out and 350 gms of opium was recovered from his possession. 10 gms of opium was separated as sample. Separate sealed parcels of the samples and remainder of opium were prepared and were taken into possession. 13. PW-6 SI Hardev Singh has deposed in detail in support of the prosecution version. He has categorically deposed about the apprehension of accused on the basis of suspicion and the service of notice upon him under Section 50 of the Act. The search of accused which led to the recovery of 350 gms of opium from his possession and the subsequent proceedings. The version of PW-6 SI Hardev Singh on the point of recovery has been fully corroborated from the testimony of PW-5 HC Darbara Singh. The accused along with case property and the witnesses was produced before PW-3 SI Bablir Singh, the then SHO, Police Station, Garhi. He also sealed the case property. His testimony further corroborates the prosecution case. The chain of link evidence is also complete. The testimonies of the aforesaid witnesses are consistent and does not suffer from any material contradiction or discrepancy. Thus, I do not find any illegality in the conviction of the appellant recorded by the learned trial Court. 14. However, I found considerable substance in the contentions raised by learned counsel for the appellant on the quantum of sentence. The testimonies of the aforesaid witnesses are consistent and does not suffer from any material contradiction or discrepancy. Thus, I do not find any illegality in the conviction of the appellant recorded by the learned trial Court. 14. However, I found considerable substance in the contentions raised by learned counsel for the appellant on the quantum of sentence. The learned trial Court has recorded the statement of appellant on the quantum of sentence, which shows that at the time of conviction he was about twenty years of age. So, on the date of occurrence, appellant was below twenty one years of age. Even as per the record of police available on the file, the appellant is not a previous convict. Appellant has deposed in his statement on the quantum of sentence recorded by the learned trial Court that he had old parents to look after and is a poor man. The appellant is facing the agony of this litigation since February 1999 i.e. for the last more than fifteen years. So, he has faced the highly protracted trial. 15. The custody certificate of the accused-appellant, shows that accused-appellant has already undergone the substantiative sentence of about ten months, which is quite sufficient period keeping in view the quantity of opium recovered from the possession of appellant and his antecedents. Appellant has also been ordered to pay a fine of Rs. 5000/-. In view of the fact that appellant was a young man below twenty one years of age and was a poor person, he deserves the leniency in the matter of fine also. 16. Thus, keeping in view of my aforesaid discussion, the conviction of appellant recorded by learned trial Court for the offence punishable under Section 18 of the Act is hereby confirmed. However, the sentence awarded to the appellant by the learned trial Court is hereby modified. He is sentenced to the imprisonment already undergone by him and is also ordered to pay a fine of Rs. 2500/-. The appellant will deposit the fine with the learned trial Court within a period of one month from today, failing which he will undergo simple imprisonment for a period of two months. With this modification in the sentence, there is no merits in the appeal and the same is hereby dismissed.