Harbans Singh vs State of Punjab

C. S. Tiwana, J.

This revision on behalf of the Harbans Singh is directed against his conviction under Section 9 of the Opium Act. The sentence awarded by the Judicial Magistrate First Class, Nakodar, by his judgment dated August 20, 1979, was rigorous imprisonment for 11/2 years and the payment of fine Rs. 1000/. The conviction and the sentence were maintained in appeal by the Sessions Judge, Jullundar, by judgment dated October 26, 1979.

When the case previosly came up for hearing before this Court it was pointed out that for consideration of the link evidence the matter stood referred to a Division Bench. The case was ordered to be listed after the decision of the said case. It has since been held in Criminal Revisional No. 64 of 1982 (Bhagwan Das v. State of Punjab) decided on June 22, 1982, that report of the Chemical Examiner has to be read as a whole and if there is a mention therein that the sample up to the time it was examined by him had not been tempered with no further evidence was required to be produced for shwoing that none had tempered with sample. Thus the objection of learned counsel that none from the office of Chemical Examiner has been produced has no merit.

2A. It is alleged against the petitioner that 1500 gms of opium was recovered from his possession at village Talwandi Saghera on October, 12, 1975. The prosecution examined Assistant subInspector Kalha Singh PW 1 and Constable Bir Singh PW 2 in support of its case.

The learned counsel has taken up four arguments. One of them is that the time of recovery having been mentioned as 9.30 A.M. in the chargesheet and the witnesses having told about the time of the recovery as 730 a.m. it should be taken to a circumstance disproving the recovery. First information report Exhibit PB/1 shows on its face that the time of the recovery was 830 a.m. and the time of recording a report in daily diary about the commencement of the first information report was 930. a.m. A ruqa Exhibit PB was sent from the spot. It was recorded after the recovery and some time must have been taken in its preparation. Thus the ruqa written at 830 a.m. was received at the Police station at 9.30 a.m. The Magistrate perhaps saw the time 930 a.m. as occurring on the face of the first information report and noted it in the charge sheet as the time of the recovery. Furthermore, there is no requirement of law that the exact time of the occurrence should be noted in the Chargesheet.

All that is required is that the date on which and the place at which the occurrence took place should be specified. However, it is mentioned in section 212 of the Code of Criminal Procedure that the charge shall contain such particulars as to time and place of alleged offence and the person against whom or the thing in respect of which it is committed as a reasonable to give the accused notice of the matter with which he is charged. The learned counsel wanted to interpret the word "time" so as to show that the time by the hour was required to be given. The word "time" has, however, been mentioned for disclosing to the accused the date of the occurrence. Form No. 32 of the charge in Schedule 2 of the Code of Criminal Procedure further makes the matter clear. The form of the charge is such as to disclose that the accused on or about such and such date, in such and such month, in such and such year and at such and such place committed the offence. If the argument of the learned counsel is accepted as correct, it would mean that the exact time by the hour is required to be mentioned but no date is required to be specified. It has also to be noted that no prejudice has occurred to the accused on account of this fact that time of the occurrence was mentioned as 930 a.m.

The second argument of the learned counsel that Kundan Singh to whom the seal after use had been entrusted was not produced at the trial. All that is required is that the seal should be handed over to an independent person and not that such a person should be produced in Court.

Thirdly it has been urged by the learned counsel that Constable Bir Singh had some enmity with the petitioner and for that reason he was falsely implicated. Constable Bir Singh PW 2 admitted that he had some relationship with Beant singh Talwandi Sanghera. The nature of that relationship was not got clarified. He then said that he did not known whether the petitioner had any dispute about land with Beant Singh. He however, admitted that there was some dispute in which he had tried to get a compromise effected. The statement of Constable Bir Singh as contained in his crossexamination does not establish any direct enmity with the petitioner. The witness can hardly be disbelieved on such facts as brought on record.

Lastly it was urged that by holding that the petitioner was not the first offender he had unjustifiable been denied the benefit of the provisions of the Probation of Offenders Act by the trial Magistrate. It was mentioned by the Magistrate that from the conviction slip shown to him it appeared that the petitioner had previously been convicted of an offence under the Excise Act by Shri B.S. Teji, JudicialMagistrate First Class, Jullundur, on September 28th 1969. The Learned counsel wants to take advantage of this fact that the previous conviction has not been duly proved. It is only in these cases in which on account of a previous conviction, some enhanced punishment is to be awarded to an accused that the previous conviction is required to be proved in a particular manner. For obtaining the benefit of the provisions of the Probation of Offenders Act it is the convict who has to prove that he is the first offender. If he disputed his previous conviction he could have asked for permission for the production of evidence to disprove that fact. He having not taken any steps in this respect it can be presumed that the petitioner is a previous convict.

There is no merit in the present petition and the same is dismissed.