Pal Singh vs State of Punjab

P.K. Jain, J.—This revision is directed against the judgment dated 23-11-1995, passed by the Additional Sessions Judge, Mansa, whereby the conviction and sentence of the petitioner for an offence u/s 9 of the Opium Act, recorded by judgment dated 8-2-1992, by the Judicial Magistrate, Mansa, has been confirmed. The petitioner has been sentenced to undergo1 rigorous imprisonment for a period one year and to pay a fine of Rs. 200/-, and in default of payment of fine to undergo further rigorous imprisonment for two months.

The facts giving rise to this revision are that on 23-6-1985 at about 5.30 p.m. a police party, holding Nakabandi on Jawaharke Road, within the jurisdiction of Police Station, Mansa, sighted the petitioner carrying a gunny bag on his head. Suspicion having arisen, the petitioner was detained. On conducting search of the bag 10.5 kgs. of opium was recovered. A sample of 10 gms. was separated. On receipt of the report of the Chemical Examiner and after completing the investigation a charge-sheet u/s 9 of the Opium Act was filed against the petitioner.

In support of its case, the prosecution examined two witnesses i.e. ASI, Lai Singh as PW 1 and H.C. Magdur Singh as PW 2. In his examination u/s 313 of the Cr.P.C, the petitioner denied the allegations of the prosecution and pleaded his innocence and false implication. He examined two witnesses in his defence.

After accepting the case of the prosecution to have been proved beyond doubt and disbelieving the defence version, the Judicial Magistrate, Mansa, convicted and sentenced the petitioner as stated above. His appeal against conviction and sentence did not find favour with the Additional Sessions Judge. Hence this revision.

Mr. A.P.S. Deol, Advocate, learned counsel for the petitioner has not assailed, and rightly so, the order of conviction recorded by the Judicial Magistrate against the petitioner and confirmed by the Additional Sessions Judge in appeal. The learned counsel has confined his argument only to the question of sentence.

It has been argued by the learned counsel that the petitioner was of the age of 161/2 or 171/2 years of age at the time of commission of the offence, that he is not a previous convict and is a milkman by profession. It has also been pointed out by the learned counsel that the petitioner has already undergone the agony of a long trial for a period of 10 years. In these circumstances, it has been urged that the petitioner should be released on probation. Reliance has been placed upon a judgment of this Court rendered in Sikander Khan v. The State of Punjab (1986) 1 RCR 208.

On the other hand, Mr. I.P.S. Sidhu, learned Assistant A.G., Punjab, has argued that keeping in view the heavy recovery of the opium, a deterrent punishment is required to be imposed and such a convict ought not to be dealt with leniently by releasing him on probation.

I have considered the respective arguments advanced at the Bar. The admitted facts are that the petitioner was below the age of 18 years when the charge in this case was framed against him by the Judicial Magistrate. He is not a previous convict nor any past criminal history has been pointed out either by the trial Court or the appellate Court in their respective judgments. He is a milkman by profession. It also cannot be disputed that the prosecution against the petitioner was launched in December 1985 and the petitioner has already undergone the agony of a criminal trial for a long period of 10 years. The petitioner is at present undergoing sentence imposed upon him in this case:

The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction towards the community setting in those cases where it is compatible with the other objectives of sentencing. Other things being equal the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and a typical environment of an institution of confinement. Some offenders like the petitioner, are not dangerous criminals but are weak character who have surrendered to temptations or, through misfortune, have been brought within the .. operations of the police and the Courts.

The present offence has been committed by the petitioner at a time when the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been enacted. The said Act was enacted to curb and eradicate the evil of abuse of narcotic drugs and illicit traffic therein so much so that breath-taking deterrent minimum punishments have been prescribed for those found guilty. But at the same time, the Legislature, in its widsom, kept in mind the human angle also and made a specific provision for dealing with a convict under the age of 18 years for an offence under that Act. In other words the rehabilitatory purpose is still recognised under the current legislation covering the offence in question also.

In Sikander Khan''s case 1986 1 RCR 208 (supra) the petitioner was a convict for a similar offence having been found in possession of 20 kgs. of opium. His age was about 22/23 years, Keeping in view the facts and circumstances a single Bench of this .Court ordered the release of the petitioner on probation. I have already detailed the antecedents, character and the profession of the petitioner. It appears that he was a carrier in respect of this narcotic for someone. Therefore, it would be just and proper if the petitioner is released on probation.

While parting, I cannot help expressing my surprise to the fact that why in such a case the offence is not investigated to its logical extent. We know that the opium is not a sky produce, falling as rain and landing straightway in the hands or at the place of someone. It is an earthly product and passes through hand to hand through various persons at different places. The investigating agency must know the persons from whose possession this substance is found is the only one of the links and there are other linkers round about him. Despite this common placed facts, for the reasons best known to the investigating agency in many cases no serious efforts are made or at least has come to my notice to detect and unearth the crime from its grass-root. Catching hold of a person found in possession of a narcotic substance in itself is not enough. To achieve laudable object of the law it is advisable to investigate further and make efforts to know the origin thereof.

In the result, this revision is allowed in part. The conviction of the petitioner u/s 9 of the Opium Act is hereby affirmed. The sentence of imprisonment imposed upon the petitioner is hereby suspended and he is ordered to be released on probation on his furnishing a bond in the sum of Rs. 5000/- with one surety in the like amount to the satisfaction of the trial Court undertaking to keep the peace and be of good behaviour for a period of two years and to appear to receive the sentence when called upon to do so in the meantime. However, the fine imposed upon him is converted into litigation expenses payable to the State.