Shida vs State of Punjab

A.S. Nehra, J.

Shida, petitioner was convicted under Section 9 of the Opium Act and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/ or in default of payment of fine to undergo further rigorous imprisonment for a period of three months, on 15.5.1986, by Judicial Magistrate Ist Class, Dasuya. Appeal filed by the petitioner was dismissed by the Sessions Judge, Hoshiarpur, on September 10, 1986. Hence, this revision petition.

In brief, the prosecution case is as fellows:

On 6.3.1984 Joginder Singh ASI along with Jagdish Singh ASI, Inderjit Singh HC and some constables and Ujagar Singh Lambardar was going towards village Mian in a Government Jeep in connection with patrolling. When the police party reached near the road leading to village Gilzian, Shida petitioner was seen coming from the side of that village. He was apprehended on suspicion and his person was searched. On personal search of the petitioner, opium weighing 5 Kilograms was recovered from the bag which he was having on his left shoulder. 10 grams of opium was separated as sample. The sample so separated and the remaining opium were separately sealed into two parcels and taken into possession vide recovery memo Ex. P.A. A case under Section 9 of the Opium Act was got registered against the petitioner in the Police Station. The sample was sent to the Chemical Examiner, who vide his report Ex.PD opined that the sample contained opium.

In support of its case, the prosecution examined Jagdish Singh ASI PW1 and Joginder Singh ASI PW2. Both these witnesses supported the prosecution on case as summarised above.

After recording the prosecution evidence, the learned trial court examined the petitioner under Section 313 of the Code of Criminal Procedure in order to enable him to explain the circumstances appearing against him in the prosecution evidence. However, the allegations of the prosecution were denied and false implication was pleaded.

In defence, the petitioner examined Buta Singh DW1, who proved copy Ex. D1 of an application submitted by him in court.

The learned counsel for the petitioner vehemently argued that the petitioner was allegedly arrested on 6.3.1984; that on that date a case was pending against the petitioner in the court of Judicial Magistrate Ist Class, Dasuya and that the father of the petitioner namely Buta Singh moved an application in the court, copy of which is Ex.D1, stating therein that the petitioner was in the custody of CIA Staff. The learned counsel further submitted that father of the petitioner gave application Ex.D1 proves that the petitioner was already in custody of the police and false case had been registered against him. I have considered the submission made by the learned counsel for the petitioner but I find no force in his contention. No doubt, father of the petitioner moved an application, copy Ex D1, in the court of Judicial Magistrate Ist Class, Dasuya, for exception of the appearance of the petitioner in court on 6.3.1984, but it is not known as to at what time that application had been submitted before the court. The petitioner was arrested by the police on 6.3.1984, in the afternoon. Thus, it is possible that the father of the petitioner came to know of the arrest of the petitioner and in order to create defence for him, he immediately rushed to the courts and moved application Ex.D1. Therefore, on the basis of the application Ex.D1 and in the absence of evidence to prove that this application was filed in the court before the petitioner was apprehended in this case, it is difficult to hold that the petitioner was in the custody of the police before his alleged arrest and that the opium was later on planted upon him and he was falsely involved in this case......... The learned counsel for the petitioner further submitted that the petitioner was involved earlier in a case under Section 379 of the Indian Penal Code; that Joginder Singh ASI was the investigating officer in that case also which is clear from the Judgment Ex.D2; that the petitioner was acquitted in that case; and that in view of this, it can be said that the investigating officer must have been annoyed with the petitioner and he involved the petitioner falsely in this case. I fail to understand as to how these facts can lead to a logical conclusion that the investigation officer was annoyed with the petitioner and he involved him in this case. So, the arguments of the counsel for the petitioner are not tenable and as such are repelled. The learned counsel for the petitioner further submitted that Ujjagar Singh an independent witness was not examined by the prosecution. He submitted that the official witnesses who had been examined in this case had given discrepant statement as according to ASI Jagdish Singh, ASI PW2, the petitioner was apprehended at 3.15 PM. He submitted that this is a material discrepancy which renders the statements of the official witnesses unreliable. The learned counsel further submitted that Jagdish Singh ASI gave evasive replies to all the questions put to him during crossexamination and he could not tell the colour of the clothes worn by the petitioner and the colour of the box in which opium was sealed. In view of this, the learned counsel submitted that the presence of Jagdish Singh ASI at the time of alleged recovery from the petitioner is doubtful and that the statements of Jagdish Singh ASI and Joginder Singh ASI are not worthy of credence and are insufficient to prove the case against the petitioner beyond reasonable doubt. I have given careful consideration to the submissions made by the learned counsel for the petitioner but I find no force in the same. No doubt, Ujaggar Singh, who was an independent witness, has not been examined by the prosecution but the failure of the prosecution to examine him is not material as Ujaggar Singh PW was given up as having been won over by the accused. That being so, the failure on the part of the prosecution to examine him does not in any way render the statements of the official witnesses unreliable. At the most, it can be said that their evidence should be scrutinised with due care and caution. On scanning the evidence of both the official witnesses, I am inclined to hold that their testimony is quite trustworthy. Both the witnesses had no enmity to depose falsely against the petitioner. They have given consistent statements in respect of all material particulars of the case. The contradiction about the time of apprehension of the petitioner in the statements of the two official witnesses pointed out by the counsel for the petitioner is not material as such like minor contradictions could occur in the statements of the witnesses who were examined one year after the occurrence. Similarly, the fact that Jagdish Singh could not tell the colour of the clothes worn by the petitioner and the colour of the box in which opium was sealed, is also immaterial and his presence at the spot cannot be doubted in any way. Thus, there was nothing in the evidence of Jagdish Singh and Joginder Singh P.Ws which can shake their veracity. So, their evidence in my opinion is acceptable and proves the prosecution case against the petitioner beyond all reasonable doubt.

The learned counsel for the petitioner further submitted that the petitioner is entitled to be released on Probation under Section 360 of the Code of Criminal Procedure (in short the Code). The learned counsel for the petitioner has submitted that the petitioner is a first offender; that there is nothing against his character and antecedents on record and that the offence was committed in the year 1984. The learned counsel further submitted that Legislature including the provisions of Sections 360 and 361 of the Code, intended to reform the offenders, where it is possible, by giving them the benefit of probation of Offenders Act; that it is only by giving special reasons under Section 361 of the Code that the benefit of probation can be denied by the court and that the special reasons are to be given by the court with regard to the age, character and antecedents of the offender and the circumstances in which the offender and the circumstances in which the offence was committed.

It is incumbent upon the court to give benefit of probation where the offenders are entitled to it as provided in Section 360 of the Code, unless the courts find that the convicts are incorrigible and cannot be reformed. The object of punishment is not only to be rebutritive but also to be reformative. Keeping in view the aforesaid principles, the petitioner is given one chance to reform himself. Accordingly, the conviction of the petitioner is maintained but his sentence of imprisonment and fine are set aside and it is directed that he be released on his entering into a bond in the sum of Rs. 5000/ with one surety in the like amount to the satisfaction of trial court and to appear and receive sentence when called upon during the period of two years and in the meantime to keep peace and to be of good behaviour. He is further directed to deposit Rs. 5000/ as cost of the proceedings. The revision petition is partly allowed as indicated above.