Prem Kumar vs State of Punjab

V.M. Jain, J.

This is a revision petition against the judgment dated 12.5.1988 passed by the Additional Sessions Judge, Ludhiana affirming the judgment and order dated 12.9.1987 passed by the Judicial Magistrate, 1st Class, Jagraon convicting the accusedpetitioner under Section 9 of the Opium Act and sentencing him to undergo RI for 1 year and to pay fine of Rs. 2000/ and in default of payment of fine to undergo further RI for 6 months.

As per the case of the prosecution a police party headed by ASI Piara Singh was going on bycycles in connection with patrol duty and when the police party reached on the canal bridge Saholi, accusedpetitioner, Prem Kumar was found coming from village Saholi side on foot and on suspicion he was apprehended. From his personal search 3 kgs. of opium was recovered from the bag which he was having on his shoulders. 10 grams of opium was taken out from the bulk and thereafter the sample and the bulk were separately sealed and the same were taken into possession by the police. A ruqa was sent to the police station on the basis of which formal FIR under Section 9 of the Opium Act was registered in the police station. Accused petitioner was formally arrested in this case and on return to the police station, the accused was lodged in the police lock up and the case property was deposited with the MHC. After receipt of the report from the Chemical Examiner and completion of the investigation the challan was put in the Court. The learned Magistrate charged the accused under Section 9 of the Opium Act to which charge the accused pleaded not guilty and claimed to be tried. The prosecution led its evidence. Thereafter the statement of the accused under Section 313 Cr.P.C. was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. However, he did not produce any evidence in his defence.

The learned Magistrate after having both sides and after perusing the record, convicted and sentenced the accusedpetitioner vide judgment and order dated 12.9.1987. The appeal filed by the accusedpetitioner was dismissed by the learned Additional Sessions Judge vide judgment dated 12.5.1988. Now the petitioner has filed the present revision petition in this Court.

I have heard the learned, counsel for the parties and have also gone through the record carefully.

The learned counsel appearing for the accusedpetitioner firstly submitted before me that the police had failed to join any independent witness at the time of recovery and there are only official witnesses to prove the recovery of the opium from the possession of the accusedpetitioner. It was submitted that the evidence of official witnesses is discrepant and not worthy of any reliance.

However, I find no force in this submission of the learned counsel for the accusedpetitioner. Merely because the police had failed to join independent witness at the time of recovery, in my opinion, would be no ground to discard the testimony of the official witnesses especially when there is absolutely nothing on record to show that the police officials were in any way inimical towards the accusedpetitioner. In the present case the evidence of PW1 ASI Piara Singh and PW3 Constable Nazar Singh is cogent and convincing with regard to the manner in which the recovery was effected from the possession of the accusedpetitioner Prem Kumar. The discrepancies pointed out in the statements of these witnesses are only minor and such kind of discrepancies are bound to arise in case of truthful witnesses especially when the statements of these witnesses was recorded after more than two years of the recovery.

It was then submitted before me by the learned counsel for the petitioner that in the present case there was delay in sending the samples to the Chemical Examiner. It was submitted that the recovery was effected on 5.8.1984 while the sample was sent on 22.8.1984. Reliance was placed on 1995(3) RCR 316, Khuba Ram alias Khuba v. State of Haryana ; 1997(1) RCR 414, Narain v. State of Haryana ; 1997(1) RCC 147, Ramesh v. State of Haryana. However, I find no force in this submission of the learned counsel for the petitioner. The learned counsel for the petitioner could not point out any prejudice to petitioner on account of delay in sending the sample to the Chemical Examiner for analysis and report. This is especially so when the prosecution has produced the link evidence about the bulk and the sample having been kept safely in the Malkhana during this period. So far as the various authorities relied upon by the learned counsel for the petitioner are concerned, suffice it to say that all these authorities pertain to the cases arising out of the Narcotic Drugs and Psychotropic Substances Act, where minimum sentence provided is 10 years RI and fine of Rs. 1.00 lac. In my opinion, the law laid down in these cases would have no application to the present case under the Opium Act.

It was then submitted by the learned counsel for the petitioner that only 3 kgs. of opium was recovered from the possession of the petitioner on 5.8.1984 and that he faced trial before the learned Magistrate for almost 3 years and thereafter the appeal remained pending before the appellate Court for about 1 year and now for the last about 11 years the present revision petition is pending in this Court. It was further submitted that accused petitioner was not a previous convict and was a first offender and considering the small quantity of opium recovered from his possession, he was entitled to be released on probation. Reliance was placed on 1987(2) RCR 376, Ajmer Singh v. State of Punjab.

In Ajmer Singh''s case (supra), 3.750 kgs. of opium was recovered from the possession of the accused and placing reliance on the law laid down by a Division Bench of this Court in Sushil Kumar v. State of Haryana, 1984(1) RCR 607, the accused was ordered to be released on probation observing that the Division Bench in the reported case had considered the recovery of 4 kgs. or more opium as a large haul which would be special reason for declining benefit of probation to the offender and in other words, in a case of recovery of less than 4 kgs. of opium a convict can be released on probation in the given circumstances.

Taking into consideration the law laid down in the above mentioned authority and further taking into consideration the facts and circumstances of the present case, in my opinion, the ends of justice would be fully met in case accusedpetitioner is released on probation, instead of sending him to jail at this stage.

For the reasons recorded above, while upholding the conviction of the accusedpetitioner under Section 9 of the Opium Act, he is ordered to be released on probation for period of 1 year on his furnishing bond in the sum of Rs. 500/ with one surety in the like amount to the satisfaction of the trial Court, by keeping peace and to be of good behaviour and to receive sentence as and when called upon to do so during the said period of one year. The accusedpetitioner is also directed to pay Rs. 2000/ towards the costs of proceedings. It is further directed that fine of Rs. 2000/, if already paid by the accusedpetitioner shall stand adjusted towards the cost of proceedings. However, if the accusedpetitioner has not paid the fine, he shall be liable to pay Rs. 2000/ towards the costs of proceedings. It is further directed that the accusedpetitioner shall furnish the bonds and shall deposit the costs of proceedings, if not already paid as costs, within a period of 3 months from today before the trial Court. It is further made clear that if the accusedpetitioner fails to furnish the bonds and fails to pay the costs of proceedings, he shall undergo the sentence already imposed upon him by the trial Court.

With the above modification in the order of sentence referred to above, the present revision petition is dismissed.

Revision dismissed.