Mewa Singh @ Bhola vs State of Punjab

Rajan Gupta, J.—This is an appeal against the judgment of conviction and order of sentence dated 6th December, 2010, delivered by Special Court, Sangrur. The trial court after recording the prosecution evidence, came to the conclusion that the accused/Appellant was guilty of possession of contraband (i.e. 500 grams of opium). He was convicted u/s 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo RI for one year and to pay a fine of Rs. 2000/-, in default whereof to further undergo RI for two months.

Feeling aggrieved against the judgment of the trial court, the Appellant has approached this Court through the instant appeal.

Learned Counsel for the Appellant states that he is limiting his prayer only to the extent of reduction in the sentence awarded and does not assail the judgment of conviction. Learned Counsel has submitted that the Appellant is a poor man and sole bread winner of his family. According to him, in the present case the quantity of opium recovered from the possession of the Appellant is much below the commercial quantity and out of the total awarded sentence of one year, by now he has undergone 03 months and 25 days. Learned Counsel, therefore, prays that keeping in view the fact that he is a poor man and has to support his family and the quantity of contraband recovered from him is below the commercial quantity, the sentence be reduced to the period already undergone by him.

Learned State counsel has placed on record a reply by way of affidavit dated 2nd February, 2011 of the Superintendent, District Jail, Sangrur, according to which the Appellant had undergone 03 months and 08 days of sentence as on 25.1.2011. He submits that in case conviction of the Appellant is maintained, the court may reduce the sentence as deemed appropriate in the circumstances of the case.

I have heard learned Counsel for both the parties.

Briefly, the prosecution case runs thus:

On 5th February, 2005, SI Gurcharan Singh, was leading a police patrolling party from village Rasalgarh Chhana to Deh Kalan and had gone 100 yards ahead of railway crossing in the area of Deh Kalan, when the accused (Appellant herein) was noticed by the said police party carrying a bag in his right hand. On seeing the policy party, he got nervous and tried to beat retreat. He was apprehended by the police. At that time, one Nirmal Singh came there and was joined in his party by the I.O. S.I. Gurcharan Singh intimated the accused/Appellant regarding his suspicion that he was carrying some intoxicant in the bag and he wanted to search him. He also apprised the accused of his right to opt for being searched by him or in the presence of a Gazetted Officer or a Magistrate. Vide his statement Ex.P1, the accused/Appellant opted for being searched in the presence of a Gazetted Officer. Then, on the request of the Investigating Officer, DSP Narinder Kaushal reached at the spot. In the presence of the DSP, search of bag of the accused/ Appellant was conducted and opium wrapped in a glazed paper was recovered. S.I. drew two samples of 10 grams each and put them into two small size containers and on weighment, remaining opium came out to be 480 grams. The same were sealed separately. The entire case property was taken into police possession. After completion of investigation and on receipt of report of chemical examiner Ex.PX, the accused was sent up for trial.

Finding a prima facie case u/s 18 of the NDPS Act, charge sheet was framed against the accused/Appellant to which he pleaded not guilty and claimed trial.

To substantiate its case against the accused/Appellant the prosecution examined as many as seven witnesses.

The statement of accused u/s 313 Code of Criminal Procedure was recorded, wherein the incriminating evidence available on record was put to him. He refuted the incriminating circumstances and pleaded false implication. However, he did not produce any evidence in his defence.

On the basis of the evidence on record, the learned trial court held the Appellant guilty of the charge framed against him and sentenced him as already indicated above.

On a perusal of the impugned judgment of the court below, I am of the considered view that the trial court has rightly appreciated the evidence on record while holding the Appellant guilty of the charge framed against him. There is no infirmity or illegality in the findings given by the court below. The conviction of the Appellant is, thus, affirmed.

Even counsel for the Appellant, during the course of argument, has not assailed the judgment of conviction. He has, however, pleaded for reduction in the quantum of sentence on the ground that the Appellant is poor person and main bread winner of his family.

Keeping in view facts and circumstances of the case, as also the fact that the Appellant is a poor man and sole bread winner of the family, I deem it fit to reduce his substantive sentence to five months R.I. The fine imposed by the trial court is, however, enhanced from Rs. 2000/-to Rs. 10,000/-. Ordered accordingly.

The fine be deposited within three months from the date of receipt of certified copy of this order. However, in case fine aforesaid is not deposited within the stipulated period, the modification in quantum of sentence shall stand withdrawn and the Appellant shall undergo the remaining period of sentence as awarded by the trial court.

Except with the modification in the quantum of sentence and fine, as indicated hereinabove, the appeal stands dismissed.