Mohammad Bhoora vs State of Punjab

Jasbir Singh, J.—In FIR No. 38 dated 2.4.2004, the appellant and his co-accused Kallu were named as accused. It was allegation against them, that on 2.4.2004, in the area of village Neelon Kalan, District Ludhiana, they were found in possession of 25 bags of poppy husk, weighing 41 Kgs. each, without any permit or licence. They were prosecuted for committing an offence u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ''the Act). Vide judgment and order dated 22.9.2008, the appellant accused was convicted for commission of the above offence and he was sentenced to undergo rigorous imprisonment for a period of 13 years and to pay a fine of Rs. two lakhs. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for two years. Hence, this appeal. It is necessary to mention here that during trial co-accused Kallu was declared a proclaimed offender.

The trial Judge has noted following facts regarding case of the prosecution:-

Briefly stated, the facts of the prosecution case as brought out in the testimony of prosecution witnesses are that on 2.4.2004, Inspector Sawinder Singh alongwith ASI Charanjit Singh, ASI Kulwant Singh and other police officials while boarded in Government Jeep bearing registration No. PB 25 6798, which was being driven by C. Paramjit Singh was holding nake on the metalled road leading from village Sheelon Kalan to village Doburjji in the area of village Sheelon Kalan for checking of vehicles and suspected persons. At about 11.45 A.M. A truck was seen coming from the side of village Doburji, PS Payal which was being driven by its driver with one clean shaven person was sitting by his side. When the truck came near them, Inspector got it stopped and asked the names and antecedents of the truck driver and his companion. The truck driver disclosed his name as Kallu S/o Jasin alias Yamin, Caste Mohammedan, R/o Multania Kastuara, PS Deogan, Distt. Saharanpur (UP) and the person who was sitting by his side disclosed his name as Mohammad Bhoora S/o Mohd. Daulat, Caste Teli, R/o Mohalla Gulam Maulian Mangoh, PS Mangoh, Distt. Saharanpur (UP) now residing at Bhola Colony, PS Division No. 7, Ludhiana. The truck was bearing registration No. UMS 8622. Then, Inspector questioned the accused why they had come to this side (place of recovery) though they belong to UP but they failed to give any satisfactory reply. In the meantime, PW Karam Pal Singh son of Ram Kishan, Caste Ramdassia, R/o village Doburji, PS Payal, Distt. Ludhiana, came at the spot on a bi-cycle and he was joined in the police party. In the presence of PW Karam Pal Singh and other police officials, Inspector told both the accused that he suspected poppy husk in the gunny bags lying in the special partition between the body and driver seat of the truck, with their mouth stitched with string and that he (Inspector Swainder Singh) was posted as SHO PS Dehlon and he wanted to conduct search of said bags and also offered them that if they so desired, some Gazetted Officer or Magistrate could be called. As the accused reposed no confidence in the SI, he recorded their disconsent statement Ex.PA, which was thumb marked by both the accused and attested by PW Karam Pal Singh and official witnesses. Then, he requested Sh. Jatinder Singh Khehra, DSP Dhaka through wireless set to come up on the spot. After sometime, DSP Jatinder Singh Khehra along with his gunman reached at the spot in his gypsy bearing registration No. PB 12 D 0038 and in the presence of police party disclosed his identity to the accused and asked both the accused that he wanted to search the truck in question by unloading the same and in case they wanted to get the truck searched from some Gazetted Officer or Magistrate they could do so. At this, both the accused reposed confidence in him and got ready for search of the truck. At this, DSP recorded the consent statement Ex.PB of both the accused, which they thumb marked. The same was also attested by the aforesaid witnesses. Then DSP directed SI Swinder Singh for search of truck after getting the same unloaded. SI Swinder Singh got the truck unloaded with the help of police party and 25 gunny bags, mouth of which were stitched with jute string, were recovered. Then, Inspector searched all the 25 gunny bags one by one and found each of them containing poppy husk, he took out two samples of 100 grams of poppy husk from each bag and converted the same into parcels. Remaining poppy husk in 25 gunny bags came to be 10 quintals, 25 Kgs. i.e. 41 Kgs. from each bag on weighment. Then he retransferred the material into the recovered gunny bags and converted the same into bulk parcels numbering 1 to 25. Thereafter, SI sealed the bulk parcels and the sample parcels with his seal bearing impression ''SS'', whereas DSP also sealed the bulk parcels and the sample parcels with his seal bearing impression ''JSK''. Sample of seal was also prepared and after use, SI entrusted his seal to ASI Charanjit Singh, whereas DSP kept his seal with him. Thereafter, he took bulk parcels and the sample parcels alongwith truck, string and tarpaulin into police possession vide recovery memo Ex.PD, which was attested by aforesaid witnesses and the DSP. Then SI sent ruqa Ex.PE to police station through C-II Dilbagh Singh for registration of the case against the accused on the basis of which formal FIR Ex.PE/1 was recorded by ASI Karamjit Singh. On personal search of the accused Kally, currency notes worth Rs. 360/-and one mobile phone and from personal search of accused Mohd. Bhoora, currency notes worth Rs. 20/-were recovered and these articles were taken into possession vide jama-talashi memo Ex.PF. Aforesaid truck was the ownership of Mohd. Khurshid S/o latif Mohd.. R/o Gujjarwara, Mangoh, Distt. Saharanpur (UP) and the same alongwith its route permit and driving licence of accused Kally were taken into possession vide memo Ex.PG. Memo of grounds of arrest of both the accused Ex.PH was prepared. Information regarding arrest of accused Kally and Mohd. Bhoora was sent to SHO PS Deogan, Distt. Saharanpur (UP) and to SHO, PS Division No. 7, Ludhaina, respectively, through wireless questy copy of which is Ex.PJ for further intimating the same to the family members of the accused. Rought site plan of place of recovery Ex.PK was also prepared. Special report was also sent to senior police officers from the spot. Statements of witnesses were recorded.

It is also case of the prosecution that after the recovery, the contraband and the accused were produced before ASI Karamjit Singh, who verified the facts and sealed the case property with the seal bearing impression "KS". Thereafter, the case property and the samples were deposited with MHC Tarsem Lal. On 3.4.2004 both the accused, the samples and the case property were produced before Additional Chief Judicial Magistrate, Ludhiana, in compliance to the provisions of Section 52A of the Act. Order passed by the above officer was brought on record as Ex.PL/1. The said parcels were sent for analysis to the Forensic Science Laboratory and on receipt of report, the challan was presented in Court for trial.

The appellants were charge-sheeted to which they pleaded not guilty and claimed trial.

The prosecution produced oral as well as documentary evidence to prove its case.

The statement of accused-appellant was recorded u/s 313 Cr.P.C. Incriminating material existed on record, was put to him, which he denied and claimed false implication. He also led evidence in defence.

The trial Judge, on perusal of evidence, found the accused-appellant guilty and he was convicted and sentenced vide judgment and order dated 22.9.2008, as found mentioned in earlier part of this order.

At the time of arguments, counsel for the accused-appellant Mr. KDS Sandhu, Advocate, addressed arguments only qua quantum of sentence awarded to the appellant-accused. By stating that the appellant-accused is not a previous convict, he is a poor man and only bread winner of the family, it was prayed that minimum sentence be awarded to him. The prayer made, has been opposed by the State counsel, by stating that quantum of recovery was very heavy, it was prayed that the prayer made by the appellant-accused be rejected.

After hearing counsel for the parties, this Court is of the opinion that the prayer made by the appellant deserves consideration. There is nothing on record to show that the appellant is a previous convict and when he was convicted by the court below. It was forcefully stated that the appellant-accused is a poor man, has four children, three daughers were of marriagable age, he is the sole bread winner of the family. Nothing has been shown to us to the contrary. Taking not of above facts, we partly allow this appeal. Conviction awarded to the appellant-accused is upheld. However, order dated 22.9.2008, awarding sentence to the appellant-accused, is modified and his sentence of imprisonment is reduced from thirteen years to ten years. Fine is reduced from Rs. 2 lakhs (Rs.Two lakhs) to Rs. One lakh. It is further ordered that in case of default of payment of fine, the appellant-accused shall further undergo rigorous imprisonment for six months. With above modification in the order of sentence, this appeal stands disposed of.