Jagdish @ Desa vs State of Punjab

C. A.S. Nehra, J.

Petition was convicted under Section 9 of the Opium Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay of fine of Rs. 200/ and in default of payment of fine, he was ordered to further undergo rigorous imprisonment for two months on March, 20, 1985 by the Judicial Magistrate ISI Class, Barnala. The appeal filed by the petitioner was dismissed on May 21, 1986 by the Additional Sessions Judge, Barnala. Hence, this Revision Petition.

Briefly stated the facts giving rise to this revision are as under :

On January 1, 1982, Des Raj, Head Constable, alongwith other police party, was going from the side of village Badra towards Kakeke on the canal inspection road on patrol duty and as the police party reached near the Burji No. 39190, they saw the petitioner crossing the bridge of the canal. On seeing the police party, the petitioner got confused and tried to retreat. The petitioner was intercepted and on his personal search, the police recovered bag Ex. P3, carried by the petitioner on his left shoulder and the investigator recovered 5 kgs of opium wrapped in a glazed paper. From the bag, 10 Grams of opium were taken for sample which was sealed separately, whereas the remaining opium was sealed in tin Ex. P2. The parcels were sealed with the chit signed by Constable Bant Singh. Specimen of the seal, Ex. P1 was kept separately by the investigator. Recovery Memo Ex. PA was prepared and the same was attested by the witnesses. Ruwa Ex. PC was sent to the Police Station where FIR Ex. PC/1 was registered Site plan Ex. PD was prepared and the case property was deposited with AMHC Charanjit Singh, with seals intact.

In order to prove its case, the prosecution has examined Bant Singh, Constable, PW1, Des Raj, Head Constable, PW2 and the affidavits Ex. PF and Ex PG and report of the chemical examiner Ex. PE were tendered in evidence.

On close of the prosecution evidence, the statement of the accused under Section 313 Criminal Procedure Code was recorded. All the circumstances and the evidence were put to the accused. He has denied the allegations of the prosecution and has stated that he is running a Karyana shop in his village and on 31.12.1981, at about 6.00 P.M. Des Raj, Head Constable came to his shop and demanded a bottle of liquor. On his refusal, he was given beatings and was taken to the police station in the presence of Niranjan Singh, Baldev Singh and Dali Singh and was falsely implicated in this case. The accused has examined in his defence Pritam Singh, Constable, DW1, Kundan Singh, DW2, Sukhchain Singh DW3, Niranjan Singh DW4 and has closed his defence evidence.

Learned counsel for the petitioner has submitted that the petitioner is innocent; that he was arrested by the Police a day before the alleged day of recovery; that there was some altercation between the Head Constable and the petitioner, on the refusal of the petitioner to offer liquor to the Head Constable and that the petitioner was falsely involved in this case on the next day by the Head Constable. He has further submitted that the opium in question was not recovered from the petitioner and the same has been planted upon the petitioner by the Head Constable. He has further submitted that this version of the petitioner finds mention in the bail application which was filed on January 5, 1985. The learned counsel has submitted that the statements made by the witnesses in defence should not be discarded and the same should be due weight.

I find myself unable to agree with the learned counsel for the petitioner. The witnesses examined by the petitioner in his defence are residents of his own village and they admittedly did not make any complaint to any higher authority about the false involvement of the petitioner in this case and the members of the Panchayat also did not record any resolution in this respect in the proceeding book of the Panchayat. The respectables of the village would have hardly remained silent in this respect in case they had found any of their covillagers arrested without any basis. So, the defence version in the present circumstances cannot be accepted.

Learned counsel for the petitioner further submitted that Bant Singh, one of the prosecution witnesses, was declared hostile and his statement should be rejected as a whole and consequently, the statement of other witness Des Raj, Head Constable being without corroboration should not be accepted. Permission was taken by the prosecution to crossexamine Constable Bant Singh only in respect of the fact that the accused had not attested the recovery memo Ex. PA and that it was not Des Raj, Head Constable, but it was Constable Bhagwan Singh who attested the recovery memo Ex. PA. On crossexamination, Bant Singh Constable, PW1 stated that the constable Bhagwan Singh, and he attested the memo Ex. PA. The name of Jagdish Raj was mentioned by Constable Bant Singh under the impression that the petitioner might have also thumb marked that documents because some other documents like memo relating to personal search were also signed by the petitioner at the time of investigation. Bant Singh, Constable, PW1 in his examinationinchief has stated that Constable Bhagwan Singh was accompanying the policy party on the date of the recovery and it was mere slip of tongue that he stated in his examinationinchief that Des Raj, PW2 attested the memo Ex. PA as a witness. So, the point in respect of which Bant Singh Constable was declared hostile is quite insignificant, and there is no reason to take out the entire statement of Bant Singh, Constable PW1 from consideration. His testimony does corroborate the statement of Des Raj PW2.

Learned counsel for the petitioner submitted that there are material discrepancies in the statements of the witnesses in respect of enquiring about the Sarpanch in the village, about the time at which the writing work was started by the Head Constable, about the time at which the statement of Bant Singh, Constable was recorded and about the verification of any papers relating to any person at village Badra. The discrepancies pointed out by the learned counsel for the petitioner are quit minor and the same do not relate to material particulars of recovery effected from the petitioner and the learned lower Courts have duly considered the several same have been rightly ignored. The prosecution story stands fully established on record by the testimony of Des Raj, Head Constable, PW2 which finds corroboration from the testimony of Bant Singh, Constable PW1. It is immaterial that no independent person was examined by the prosecution in this case because no such person could be joined by the police party who were on patrol duty. The link evidence is complete in view of the affidavits Ex. PF and Ex. PA and the chemical examiner''s report Ex. PE.

In view of the abovementioned discussion, I do not find any reason to interfere with the conviction.

On the question of sentence, Mr. S.G. Dhillon, learned counsel for the petitioner, has contended that the trial Court was unnecessarily swayed in imposing a severe punishment because of the reason that there was an entry of previous conviction against the petitioner. It is submitted that the previous conviction of an accused person has to be proved under the law as prescribed under Section 298 of the Code of Criminal Procedure, which was not done by the trial Court. It is further submitted that a mere reference to a chit containing a note regarding previous conviction, does not tantamount to proof of the previous conviction. Section 298 of the Code of Criminal Procedure reads as under :

"298. Previous conviction or acquittal how proved. In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force

(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order,

(b) in case of a conviction, either by a certificate signed by the officer incharge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to identity of the accused person with the person so convicted or acquitted."

The contention is quite sound. The circumstances of the previous conviction against the petitioner shall not, therefore, be taken into consideration for the purpose of imposing punishment upon him.

The next contention of the learned counsel for counsel for the petitioner is that the occurrence is dated 1.1.1982 that the petitioner was tried by trial Court for more than 21/2 years; that the revision petition was admitted on 19.6.1986; that the petitioner was granted bail and that, therefore, it would not be conducive to the moral health of the petitioner to send him back to the prison to undergo unexpired portion of the sentence and, in that process, to be in the company of hardened criminals. I am inclined to agree with the learned counsel for the petitioner in this behalf. Accordingly, instead of sentencing the petitioner to a term of imprisonment and fine, it is ordered that he shall be released on probation of good conduct subject to his furnishing the necessary bond in the sum of Rs. 5000/ with one surety in the like amount, to the satisfaction of the trial Court, and to appear and receive sentence when called upon during a period of one year and in the meantime to keep the peace and be of good behaviour.

During this period of one year, the petitioner shall also remain under the supervision of the Probation Officer concerned.

With the above modification in the sentence, the revision petition is disposed of accordingly.