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2022 DIGILAW 2075 (RAJ)

Gurmej Singh v. State

2022-07-20

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - This Criminal Appeal has been preferred under Section 374 Cr.P.C. has been preferred claiming the following reliefs: "It is, therefore, respectfully prayed that the appeal filed by the appellant may kindly be allowed, the judgment dated 20th of March 1990 passed by the learned Sessions Judge Sri Ganganagar may be set aside and the appellant may be acquitted of all the charges levelled against him" 2. The matter pertains to an incident which occurred in the year 1989 and the present criminal appeal has been pending since the year 1990. 3. Learned counsel for the appellant submits that this Criminal Appeal has been preferred against the impugned judgment, dated 20.03.1990 passed by the learned Sessions Court, Sri Ganganagar in the Sessions Case No. 83/89, in State v. Gurmejsingh, whereby the learned Session Court convicted the appellant for the offence under Section 8 read with Section 15, of the N.D.P.S. Act, 1985, and was sentenced to undergo 10 years R.I. along with a fine of Rs. 1,00,000/-, in default of payment of which he was to undergo further 1 year's R.I. 4. Learned counsel submits that the independent witness does not support the case of the prosecution, and the so called recovery made from the accused cannot be taken to be that of 'powder of the poppy', as the seal which was placed upon such recovery cannot be inferred to be intact. 5. Learned counsel for the appellant further submits that the sample that was taken and subsequently sent for the F.S.L. examination cannot alone form the basis for the conviction of the appellant herein, as there are no witnesses which speak of the fact that the seal was intact upon the sample, of which the total recovery was about 141/2 kgs of doda posht and one small bag contained about 500g of doda posht which was sealed and deposited in the Maalkhana. And that, therefore, the possibility of the said sample being manipulated or tampered with, cannot be wholly ruled out. 6. Learned counsel for the appellant also submits that the investigating officer upon receiving information from the motbir/informant, did not comply with the statutory requirement of informing a higher officer, as required under Section 42(1)(2) of the N.D.P.S. Act, 1985. 7. And that, therefore, the possibility of the said sample being manipulated or tampered with, cannot be wholly ruled out. 6. Learned counsel for the appellant also submits that the investigating officer upon receiving information from the motbir/informant, did not comply with the statutory requirement of informing a higher officer, as required under Section 42(1)(2) of the N.D.P.S. Act, 1985. 7. Learned counsel for the appellant further submits that the learned Court below has incorrectly accepted the justification provided by the investigating officer, that an entry was made by him in the 'roznamcha' to the effect that he informed his higher official when he had come to the concerned police station and that the investigating officer had informed him of the same at the time and made an entry to that effect in his case diary. 8. Learned counsel for the appellants also submits that looking to the non compliance of the statutory requirements as laid down under Sections 42, 50, 52 and 55 of the N.D.P.S Act, the appellant deserves to be acquitted of all the charges levelled against him herein. 9. Learned counsel for the appellant further submits that the sentence so awarded to the appellant was suspended by this Hon'ble Court, vide order dated 09.07.1990. 10. Learned counsel for the appellant also submits that the appellant has undergone custody period of about 4 months out of the total sentence so awarded to him by the learned Court below. 11. Learned counsel for the appellant, however, makes a limited submission that without making any interference on merits/conviction, the sentence awarded to the present appellant may be substituted with the period of sentence already undergone by him. 12. Learned Public Prosecutor opposes, and submits that the learned Court below has passed the impugned judgment after taking into consideration the overall facts and circumstances of the case and the evidences placed on record before it. 13. Heard learned counsel for both the parties and perused the record of the case. 14. This Court observes that the appellant was apprehended by the concerned police authorities on the spot, after a search of the bag he was carrying along with him, was inspected and searched with his consent; and upon which the concerned police officer found the contents of the said bag to be falling within the ambit of the N.D.P.S. Act of 1985, and therefore arrested the appellant. And that, while the appellant did not have a license for the substance, Doda Posht that he was found to be carrying with him, his father had a license for the same. 15. This Court further observes, as is clear from a perusal of the record, that the appellant was caught with about 15 kilograms of the contraband article. And that, if a person has a license for carrying such contraband article, then the permissible limit is 7 kilograms. Furthermore, the motbir witnesses turned hostile and did not support the version of the prosecution. 16. However, this Court also observes that, through witnesses testimony of the concerned officials, the learned Court below was able to satisfy itself about the seal placed on the sample sent for F.S.L. testing as per the due process of the law. 17. This Court, looking into the peculiar facts and circumstances of the case, finds that the sentence imposed by the learned Court below to be excessive. 18. This Court is conscious of the judgments rendered in, Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 and Haripada Das v. State of W.B. (1998) 9 SCC 678 wherein the Hon'ble Apex Court observed as under:- Alister Anthony Pareira (Supra) "There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances." Haripada Das (Supra) "...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone...." 19. In light of the limited prayer made on behalf of the appellant, and keeping in mind the aforementioned precedent laws, the present appeal is partly allowed. In light of the limited prayer made on behalf of the appellant, and keeping in mind the aforementioned precedent laws, the present appeal is partly allowed. Accordingly, while maintaining the appellant's conviction under Section 8 read with Section 15, of the N.D.P.S. Act, 1985 as above, the sentence awarded to him is reduced to the period already undergone by him. The appellant is on bail, in pursuance of the order passed by this Hon'ble Court on 09.07.1990 whereby the sentenced awarded to him was suspended. He need not surrender. His bail bonds stand discharged. All pending applications stand disposed of. Record of the learned below be sent back forthwith.