Bishamber Dayal vs State of Haryana

S.S. Sodhi, J.

The challenge in revision here is to the order of the Sessions Judge. Narnual remanding the case for a fresh adjudication by the trial Magistrate.

The case against the petitionerBishambar Dayal is that on September 9, 1980, he was found in possession of 1500 grams of opium in the waiting room of railway station, Narnaul. It is in respect of this recovery that he was charged and convicted for an offence under Section 9 of the Opium Act and sentenced to one year''s rigorous imprisonment and a fine of Rs. 2000/.

On appeal, it was the finding of the Sessions Judge that the affidavit exhibit PF, which was a material piece of evidence to link the taking of the sample from the police station to the Chemical Examiner, Karnal, had not been put to the petitioner while recording his statement under Section 313 of the Code of Criminal Procedure, 1973. The conviction and sentence of the petitioner was accordingly set aside and the case was sent back to the trial Magistrate for fresh decision according to law.

It was the contention of Mr. N.K. Kholsa, counsel for the petitioner that keeping in view the agony of a prolonged trial that the petitioner has already undergone, the impugned order directing retiral was clearly prejudicial to the petitioner and in the interests of justice, it would be just and proper that the proceedings against him be brought to an end and he be acquitted of the offence charged. In support, the counsel cited a number of authorities where on account of the accused having undergone a long trial, the order for fresh trial was set aside.

In dealing with the contention raised, it must at the very outset be observed that each case has to be considered on its own facts. NO hard and fast rule can be laid down in this behalf. There is, of course, inherent in a prolonged trial, expense, tension and harassment for an accused which the court must keep in view while considering whether or not the case deserves to be remanded. In deciding this matter, the nature and gravity of the offence charged against the petitioner must indeed have an important bearing.

The case here involves the recovery of 11/2 kiloram of opium. The legislature, as is now well known has taken a very serious view of the menace of drugs and in view thereof has enacted the Narcotic Drugs and Psychotropic Substances Act, 1985, where punishments for being in possession of drugs have been considerably enhanced. The minimum punishment thereunder for possession of opium being ten years'' rigorous imprisonment and a fine of Rs. 1,00,000/. In this view of the matter it is clearly not a fit case to warrant interference with the impugned order remanding the case for trial in accordance with law, particularly when the defect noticed by the appellate Court was on the face of it, of a merely formal or technical nature. The fact that the petitioner has been subjected to prolonged trial would no doubt be taken into account by the trial Court in considering the appropriate sentence to be awarded, if the petitioner is convicted of the offence charged.

This revision petition is accordingly hereby dismissed.