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2016 DIGILAW 997 (RAJ)

Sajjan Singh v. State of Rajasthan

2016-07-14

GOVERDHAN BARDHAR

body2016
JUDGMENT 1. - This criminal revision petition has been filed under Section 397/401 Cr.P.C. against the judgment and order dated 26.9.1996 passed by District and Sessions Judge, Pratapgarh (Camp Chittorgarh) (for short "the Appellate Court") in Criminal Appeal No. 10/1996 whereby the learned appellate partly allowed the appeal filed by the accused-petitioner and reduced the sentence awarded by the Munsiff and Judicial Magistrate, First Class, Kapasan, District Chittorgarh by his judgment and order dated 16.6.1987, from three years rigorous imprisonment to one year rigorous imprisonment and maintained the amount of fine. The Appellate Court further reduced the sentence awarded by the Trial Court in default of payment of fine from six months' rigorous imprisonment to three months' rigorous imprisonment. 2. Brief facts of the case are that on the information of Informant, on 1.3.1978 D.S.P, Kapasan checked Bus No. RRM 7304 which was going from Chittor to Nathdwara. On checking, he recovered 5.1 Kg opium from the possession of the accused-petitioner in a block ragazine bag, who was sitting on seat No. 31. Two samples of 30 gm each were taken for chemical testing and remaining substance was sealed. After completion of investigation, challan was filed against the accused-petitioner. On 5.3.1980 the Trial Court, after hearing, framed charge for the offence under Section 4/9 of Opium Act against the accused-petitioner to which he denied and claimed trial. To substantiate the charges, the prosecution examined 11 witnesses and exhibited documents. The accused-petitioner in his statement under Section 313 CR.P.C. denied the allegation levelled against him. He did not lead any evidence in defence. 3. At the conclusion of the trial, the learned Trial Court vide judgment and order dated 16.6.1987 convicted the accused-petitioner for the aforesaid offence and sentenced him for three years' rigorous imprisonment and imposed a fine of Rs. 1,000/- and in default of payment of fine further directed to undergo six months' rigorous imprisonment. Being aggrieved by the same, the accused-petitioner preferred an appeal, which was partly allowed by the Appellate Court by its judgment dated 16.6.1987. By the said judgment the Appellate Court reduced the sentence awarded by the Trial Court from three years rigorous imprisonment to one year's rigorous imprisonment. The Appellate Court further reduced the sentence awarded in default of payment of fine from six month's rigorous imprisonment to three month's rigorous imprisonment. Hence, this revision. 4. Mr. By the said judgment the Appellate Court reduced the sentence awarded by the Trial Court from three years rigorous imprisonment to one year's rigorous imprisonment. The Appellate Court further reduced the sentence awarded in default of payment of fine from six month's rigorous imprisonment to three month's rigorous imprisonment. Hence, this revision. 4. Mr. N.K. Rastogi, appearing for the accused-petitioner has argued that it is significant from the perusal of the evidence that the prosecution evidence is contradictory regarding possession of the opium and the prosecution has failed to prove the conscious and exclusive possession. The prosecution has not produced the person who brought the sample from Police Station to S.P. Office. No copy of the Malkhana has been produced in this case. PW-10 has stated to this extent that there is no Malkhana register and he is not in a position to say on what number the Malkhana of this case was entered. The seal by which the sample was sealed also not put in the Malkhana register. It is submitted that no separate seal impression memo prepared on the spot by which the samples were sealed. Neither the seal impression memo produced before the Court nor sent to the F.S.L. separately. There is a complete missing of link evidence and the F.S.L. report related to this is doubtful and not admissible against the petitioner. It is further argued that the F.S.L. report has not been exhibited in this case and also not put to accused in his statement recorded under Section 313 Cr.P.C. and thus the F.S.L. report is not of importance and does not connect the petitioner with the offence. In absence of the F.S.L. report, it is not possible to say that the alleged seized substance was Opium. Merely smelling and testing is not a conclusive proof to say opium. In absence of the chemical analysis, there is also a material discrepancy in the date of taking out of the sample from the Malkhana. PW-10 has stated that the sample was handed over to Bhupal Singh after a month of its deposit and it is contradictory to statement of PW-11. There is no evidence of PW-10 that he deposited the separate seal impression memo in the Malkhana or he handed over to Shri Bhupal Singh, who has not been examined in this case. PW-10 has stated that the sample was handed over to Bhupal Singh after a month of its deposit and it is contradictory to statement of PW-11. There is no evidence of PW-10 that he deposited the separate seal impression memo in the Malkhana or he handed over to Shri Bhupal Singh, who has not been examined in this case. In the circumstances, it has been prayed that the accused-petitioner may be acquired for the aforesaid offence. In the alternative, it has been submitted that the incident is of 1.3.1978 and considering the facts and circumstances of the case, the sentence awarded to the accused-petitioner may be reduced to the period already undergone by him. 5. On the other hand, the learned Public Prosecutor has supported the order of conviction passed by the Courts below and argued that in this case 5.1 k.g. opium was recovered from the possession of the petitioner. The learned Public Prosecutor submitted that neither there is any occasion to interfere with the concurrent findings and the sentence awarded to the accused-petitioner by the learned Courts below nor any compassion or sympathy is called for in the said case. 6. I have perused the evidence of the prosecution as well as defence and the judgments passed by both the Trial Courts regarding conviction of the accused petitioner. 7. The accused-petitioner in his statement under Section 313 Cr.P.C. did not deny that he was not travelling in the bus. The prosecution witnesses namely Gambhir Singh (PW-1), Mahaveer Singh (PW-2), Bhaira (PW-3), Kailash Singh (PW-4) and Rustam Khan (PW-5) have stated that on seat No. 31, the accused-Sajjan Singh was sitting and he was having a black bag. The bag was searched in which contraband opium 5.1 kg was recovered from the possession of the petitioner. It is pertinent to note that in this matter it is not the case of the accused-petitioner that what was recovered was not opium. He had taken up to believe that nothing was recovered from him. the judgment of the Appellate Court is based on the judgment of the Apex Court in the case of Baidyanath Mishra v. State of Orissa, 1967 SC Decision 1651 where in has been observed that people by smell and sight could identify opium and there was not need for chemical examination. the judgment of the Appellate Court is based on the judgment of the Apex Court in the case of Baidyanath Mishra v. State of Orissa, 1967 SC Decision 1651 where in has been observed that people by smell and sight could identify opium and there was not need for chemical examination. The Trial Court as well as the Appellate Court have found the testimony of the prosecution witnesses reliable and rightly so. Opium has a characteristic appearance and characteristic scent and unless it is diluted or manipulated, anyone can say that it is opium, which it could be said of all articles like petrol, kerosene, turpentine etc. It is not the case of the defence that recovered article was not opium, therefore without chemical examination it could not be held that the article seized was opium. I do not find any cogent reason to disbelieve the testimony of the prosecution witnesses. The prosecution has succeeded in proving the recovery of contraband opium form the exclusive and conscious possession of the petitioner. The concurrent findings of the Courts below do not warrant any interference. 8. Now, coming to the question regarding sentence, it is true that the incident is of the year 1978 and the petitioner is facing agony and trauma of protracted trial since then and the Opium Act has been repealed. Therefore while considering this and taking into consideration the age of the accused-petitioner, who is now about 65 years, while taking a lenient view, this Court deems it proper that the ends of justice would be met if the sentence awarded by the Appellate Court is reduced to the sentence already undergone by the accused-petitioner and the fine is enhanced. 9. In view of above, the revision petition is partly allowed. So far as the conviction is concerned, the same is maintained. However, the sentence awarded to the accused-petitioner is reduced to the sentence already undergone by him and the fine amount is enhanced from Rs. 1,000/- to Rs. 3,000/- to be deposited within a period of 90 days from today. If the amount of fine is not deposited within the stipulated period, then the petitioner will have to undergo three months' rigorous imprisonment.The record of both the Courts below be sent back with a copy of this order.Revision partly allowed. *******