Major Singh vs State of Punjab

M.L. Singhal, J.

Major Singhpetitioner herein was convicted under Section 9 of the Opium Act and sentenced to undergo rigorous imprisonment for two years and fine of Rs. 5,000/ or in default to further undergo rigorous imprisonment for six months by Judicial Magistrate Ist Class, Moga vide order dated 22.12.1986 in case FIR No. 282 dated 11.10.1983 under Section 9 of the Opium Act of Police Station, Mehna. His appeal to the Court of Session also failed.

Aggrieved from the order dated 3.9.1987 passed by the learned Sessions Judge, Faridkot dismissing his appeal namely criminal appeal No. 3 of 1987 and maintaining the conviction and sentence passed upon him by Judicial Magistrate Ist Class, Moga petitioner has knocked the door of this Court through this criminal revision. This criminal revision is the offshoot of the following facts :

On 11.10.1983 SI Gurtej Singh, ASI Lachhman Singh, HC Din Dayal, and constables Jalaur Singh, Gurpiar Singh and Balwinder Singh were going towards Kokri Phula Singh from Village Mehna in connection with patrolling. When the police party reached near the seepage drain bridge of Village Kokri Phula Singh, Major Singh accused was sighted coming towards police party with a gunny bag on his head. At the sight of the police party he tried to swerve back. It aroused suspicion in the mind of SI Gurtej Singh (SHO Police Station, Mehna) who apprehended the accused. Accused disclosed his name as Major Singh son of Malkiat Singh of village Ajitwal. SI Gurtej Singh effected the personal search of Major Singh after giving his own personal search to him. That gunny bag was found to contain opium weighing 10 kgs, wrapped in a glazed paper. Out of the recovered opium 20 grams was taken out as sample. Opium taken out as sample was put in a small tin box which was made into a sealed parcel. The remaining opium wrapped in glazed paper was put in a tin (pipa) which was similarly sealed. Both the sealed parcels containing opium were taken into possession vide memo Ex.PA attested by ASI Lachhman Singh and HC Din Dayal PWs. Visual site plan Ex.PD was prepared at the spot. Ruqa Ex.PC was sent to the Police Station for the registration of case against the accused on the basis of which case was registered against the accused vide formal FIR Ex.PC/1 under Section 9 of the Opium Act. On return to the Police Station SI Gurtej Singh deposited the sealed parcel containing opium with AMHC Surjit Singh at Police Station, Mehna. Sample parcel was sent to the Chemical Examiner for chemical examination. Chemical Examiner vide report Ex.PE found that the contents were opium. After investigation, Major Singh was challaned under section 9 of the Opium Act.

At the conclusion of the trial, Judicial Magistrate Ist Class, Moga sentenced the accused to undergo rigorous imprisonment for two years and to pay fine of Rs. 5,000/ or in default to further undergo rigorous imprisonment for six months vide order dated 22.12.1986.

Accused''s appeal to the Court of Session met failure. Learned Sessions Judge vide order dated 3.9.1987 dismissed the appeal, maintained the conviction and sentence recorded against him by the learned Magistrate.

Major Singh''s failure in two courts below has not dampened his spirits. He has as yet knocked the door of this Court through this criminal revision.

It has been submitted by the learned counsel for the petitioner that ASI Lachhman Singh PW.1 and SI Gurtej Singh PW.2 are discrepant with each other and it would not be safe to hold the accused liable for the possession of opium in the face of those discrepancies. ASI Lachhman Singh has stated that there was bajra crop in the neighbouring fields. SI Gurtej Singh PW.2 has stated that there was jawar crop in the fields towards north of the seepage drain bridge. On the other side there was moong crop while on the one side there was jawar crop. ASI Lachhman Singh has stated that there was no jawar crop at all. SI Gurtej Singh PW.2 has stated that at the time of recovery there was neither day time nor night time. It was dawn time. At that time visibility was going up to a distance of 10/15 karams. ASI Lachhman Singh PW1 has stated that accused was apprehended at about 6.00 A.M. Drafting of ruqa was over at 8.10 A.M. Ruqa was drafted after the recovery of the opium, separation of sample, converting the sample and the remaining opium into parcels and weighing them, preparation of recovery memo, jamatalashi memo and rough site plan. All this business must have taken two/two and a half hours. In the month of October at 5.30/6.00 A.M. there is no sunrise and sun rises after 5.30/6.00 A.M. in October. I do not see SI Gurtej Singh and ASI Lachhman Singh are discrepant with each other so far as time of apprehension of the accused is concerned.

As regards, whether there was or there was no jawar crop lying sown in the neighbourhood of the place of recovery, suffice it to say, recovery took place on 11.10.1993 (1983 ?) while the witnesses were examined in 2/1985. This was not the only case detected by SI Gurtej Singh and ASI Lachhman Singh between that interval. Such discrepancy is, therefore, prone to occur if the witnesses are examined after some lapse of time of the recovery. Minor discrepancies are an index of the witnesses being truthful. If minor discrepancies are not there, that would mean that the witnesses are tutored witnesses.

It has next been submitted by the learned counsel for the petitioner that the petitioner was a servant with Jasmail Singh. Jasmail Singh was a smuggler of opium. At the time of raid of the residential house of Jasmail Singh, Jasmail Singh succeeded in evading his arrest but he was arrested and opium was planted on the petitioner being servant of Jasmail Singh.

Learned counsel for the petitioner sought to draw sustenance from the statement of Surjit Singh DW3, who was member panchayat/lambardar of the village during those days. He stated that about one and three/fourth years ago at about 6.00 A.M. house of Jasmail Singh was raided. Jasmail Singh ran away. His house is at a distance of 4/5 houses of the house of Jasmail Singh. Two bags containing opium were recovered from the house of Jasmail Singh. Major Singh was apprehended. They asked the Thanedar as to why Major Singh had been apprehended. Thanedar replied that they would let him off if Jasmail Singh was produced before them. Surjit Singh DW.3 cannot be believed as no resolution was passed by the Panchayat saying that Major Singh had been falsely implicated. No complaint was sent to the higher authorities regarding false implication of Major Singh.

It has next been submitted that the affidavits do not conduce to the provisions of the High Court Rules and JUDGMENTs and therefore they should be ruled out and if they are ruled out there is no evidence that the substance recovered was sent to the Chemical Examiner and the same was not tampered with when the same was with MHC at the Police Station or on the way when the same was sent to the Chemical Examiner per constable Ranjodh Singh. He drew my attention to Gurnam Singh v. State of Punjab, 1992(1) Recent C.R. 39 , Harjit Singh v. State of Haryana, 1987(2) Recent C.R. 217 and Balbir Singh v. State of Punjab, 1991(3) Recent C.R. 69 .

It has been submitted that in affidavits it has not been specified that which part of the affidavits is correct according to knowledge or which part is correct according to belief. Suffice it to say, these affidavits were tendered into evidence in the presence of the counsel for the petitioner (accused) in the Court of the Magistrate. Counsel for the petitioner (accused) did not subject the deponents to any crossexamination. Further learned counsel has not been able to point out any prejudice to the petitioneraccused if it is not mentioned which part of the affidavits is correct according to knowledge or which part of affidavits is correct according to belief.

In my opinion, learned Magistrate justifiably found the charge proved against the accused and convicted him. Learned Sessions Judge, justifiably maintained his conviction.

Faced with this position, learned counsel for the petitioner submitted that petitioner (accused) was a first offender. He was 22/23 years and was thus on the threshold of life and that he was not previous convict. Further this case has been hanging on his head for the last 12 years. Therefore, ends of justice would be sufficiently met if he is released on probation of good conduct and granted one opportunity to reform himself and be a virtuous man. In support of his submission he has drawn my attention to Amar Singh v. State of Punjab, 1992(1) Recent C.R. 138 , Bhajan Singh v. State of Punjab, 1985(1) Recent C.R. 394 and Bhola Singh v. State of Punjab, 1987(1) Recent C.R. 336 . Suffice it to say the provisions of the Probation of Offenders Act, 1958 should not be brought into play in this case as opium recovered from the possession of the accused weighs 10 kgs. Accused appears to be a smuggler of opium. Opium is a grave intoxicant. Opium eating affects human life. If such people are dealt with leniency and allowed the benefit of the provisions of the said Act, we will be a nation of opium eaters. Recognising the fact that opium eating is affecting the vitals of human life, the legislature has enacted legislation known as the Narcotic Drugs & Psychotropic Substances Act, 1985, which provides minimum punishment of 10 years imprisonment and fine of Rs. One lac for possession of opium, charas, poppy husk etc. We have to effectuate the intention of the legislature and not to frustrate it.

Keeping, however, in view that this case has been hanging fire on the head of the accused for the last 10/12 years, I think some leniency should be shown to the accused in the matter of sentence. So, the sentence imposed upon the petitioner is slashed to rigorous imprisonment for six months and fine of Rs. 5,000/ or in default to undergo further rigorous imprisonment for three months. Revision is accepted to the extent indicated above.

Revision accepted.