Nazir Singh vs State of Punjab

V.S. Aggarwal, J.—Petitioner Nazir Singh is aggrieved by the judgment passed by the learned Additional Sessions Judge, Bhatinda, dated 3rd February, 1993. By virtue of the impugned judgment passed by the learned Additional Sessions Judge, Appeal filed by the petitioner against the judgment and order of sentence passed by the Judicial Magistrate 1st Class, Mansa dated 8th June, 1991, was dismissed.

The brief facts are that on 2nd January 1994, ASI Bakhshish Singh accompanied by Head Constable Surjit Singh and two constables were patrolling the area. When the Police was turning towards the village on the passage, the petitioner met them per chance. He was nervous which led to the suspicion. On search of bag of the petitioner, 4 Kgs. of opium was recovered. 10 Grams, of opium was taken as sample. The sample and the rest of the opium with Jhola were put into different parcels, which were sealed with the seal of A.S.I. The seal was handed over to H. C. Surjit Singh. Ruga was sent to the Police Station, on the basis of which formal F.I.R. was recorded. The Investigating Officer prepared the rough site plan. The sample and the rest of the opium was deposited in the Malkhana. On 4th January, 1984, the sample was sent to the Chemical Examiner. On receipt of the report that it was opium, Challan against the petitioner/accused was filed.

Both the Courts below held that the prosecution has successfully proved its case beyond all reasonable doubts. The petitioner was sentenced to undergo R. I. for 1 1/2 years, and a fine of Rs. 500/-. In default of payment of fine he was to undergo further R. I. for one month.

On 20th April 1993, notice was issued to the State only regarding sentence. Learned counsel for the petitioner urged that he has to submit his arguments even on the merit challenging the findings of the Courts below holding the petitioner guilty of the office punishable u/s 9 of the Opium Act. Since revision petition was admitted only regarding sentence awarded, there is no just ground for the petitioner to challenge the other findings of the learned Additional Sessions Judge, Bhatinda.

The learned counsel submitted that in view of the facts of the case, the petitioner may be released on probation of good conduct. In support of his arguments he referred to a number of precedents. In this regard, the submission made by the learned counsel for the petitioner relying on other precedents indeed will not be appropriate. We know from the decision of the Supreme Court in a case of The State of Orissa Vs. Sudhansu Sekhar Misra and Others, , that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein. The Supreme Court approved that Earl of Halsbury LC said in Quinn. v. Leathem 1901 AC 495 which reads (at page 651 of AIR) :-

"Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have every often said before, that every judgment must be read dis-applicable to the particular facts proved, or assumed to be proved, since the! generality of the expression which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such! expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."

In the case of Municipal Corporation of Delhi Vs. Gurnam Kaur, , it was again held (at page 42):-

"It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as ''law'' applies to the principle of a case, its ratio decidendi. The only thing in a Judge''s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiterdicta and are not authoritative. The task of finding the principle is fraud with difficulty because without an investigation into the facts as in the present case it could not be assumed whether a similar direction must or ought to be made as a measure of social justice."

These observations show that a decision is an authority on a question of law and not on question of fact. A case cannot be an authority on the point of facts. Each case has to be examined in the light of the circumstances that exist in it. The precedents, therefore, is a judicial decision which contain, in itself the principle.

On the face of the aforesaid, the precedents quoted by the learned counsel for the petitioner, can be looked into.

Reference to the case of Mool Chand v. State of Punjab 1985 (2) Cha L R 667, will not help the petitioner. In the stated case, learned Sessions Judge had released the accused on probation u/s 4 of the Probation of Offenders Act. When the dispute came before the High Court, there were no controversy about the releasing of the accused/petitioner in that case on probation; The order was not up set. On these facts, the judgment mentioned above is not at all applicable.

Similarly, in the case Court on its own Motion v. Sajjan Singh, reported as 1987 (1) R Cri. R 648, it was the learned Sessions Judge, who released the accused on probation. It was found by this Court that there was no ground to interfere.

In a like manner, in the case of Sharafat Ali v. State of Haryana, reported as 1978 Cha L R (P&H) 294, benefit of Offenders Act was given keeping in view that the accused was of 21 years of age. It is not so in this case because it was admitted that He was above 30 years of age.

At the risk of repetition, it has to be mentioned that giving the benefits of Section 4 of the Probation of Offenders Act in a Particular case does not imply that all persons-accused of the similar offence will automatically be given the benefit of the same provision. One cannot lose the sight of totality of facts. When illegal traffic in such substance is organised in such manner, the structure of the society could not be allowed to crumble. More so when these substances are the health hazard.

For these reasons, the petition being without merit, fails and is dismissed. The petitioner should surrender. His bail bonds be cancelled forthwith.