Sukhwinder Singh vs State of Punjab

Naresh Kumar Sanghi, J.—Challenge in this criminal appeal is to the judgment of conviction and the order of sentence dated 23.7.2003, passed by the learned Special Judge, Fatehgarh Sahib, whereby the appellant, Sukhwinder Singh, aged about 22 years, was held guilty for the offence punishable u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ''the NDPS Act'') and ordered to undergo rigorous imprisonment for ten years, besides payment of fine of Rs. 1,00,000/- and in default thereof to undergo further rigorous imprisonment for one year.

At the very outset, learned counsel for the appellant submits that he does not challenge the conviction of the appellant u/s 18 of the NDPS Act, however, he submits that 1 Kg. of opium was allegedly recovered from the appellant on 25.4.2000 and the judgment of conviction and the order of sentence was passed on 23.7.2003; in the meantime in the year 2001, the NDPS Act was amended and the quantity of 21/2 Kgs. of opium was declared as ''non-commercial''; as per Appendix-I appended to the NDPS Act, the punishment of the appellant could be rigorous imprisonment up to ten years and he could be burdened with a fine up to Rs. 1,00,000/- only; and that the learned Trial Court had not considered the amendment in the NDPS Act carried in the year 2001 and presumed that the quantity of 1 Kg. of opium so recovered from the appellant, would fall within the ambit of ''commercial'' quantity, therefore, the appellant was awarded maximum sentence of rigorous imprisonment for ten years besides fine of Rs. 1,00,000/-. In view of his submissions, learned counsel for the appellant prays that 1 Kg. of opium allegedly recovered from the dickey of the scooter of the appellant would be of ''non-commercial'' quantity and, as such, he could be awarded the maximum sentence of imprisonment up to ten years besides payment of fine of Rs. 1,00,000/-. He further submits that the appellant is neither required nor involved in any other case relating to the NDPS Act; he is also not a previous convict; he has already suffered the agony of the trial and the appeal for more than 14 years; and that he has also suffered incarceration for more than two years, therefore, his substantive sentence and the amount of fine be reduced.

Learned counsel for the State very fairly concedes that the opium so recovered from the appellant would attract the provision of ''non-commercial'' quantity and, as such, the maximum sentence up to ten years could be awarded and not the minimum rigorous imprisonment for ten years. He further admits that the fine could also be imposed up to Rs. 1,00,000/- and not the minimum Rs. 1,00,000/-. He further admits that the learned Trial court has wrongly taken the view that the opium allegedly recovered from the appellant would attract the provision of ''commercial'' quantity. However, he submits that the appellant has been ordered to undergo rigorous imprisonment for ten years, besides payment of fine of Rs. 1,00,000/- and in default thereof to undergo further rigorous imprisonment for one year, therefore, the substantive sentence and the order of fine passed by the learned Trial Court was within its jurisdiction.

I have heard learned counsel for the parties and with their able assistance gone through the material available on record.

It is true that the learned counsel for the appellant has proposed not to challenge the conviction of the appellant, however, to satisfy the conscience of this court, the material available on record has been re-appraised.

According to the prosecution case, a police party headed by ASI Pritam Singh (PW5) was on patrolling for detection of crime and in the meantime, the appellant on his scooter emerged at the place where the police party was present. ASI Pritam Singh (PW5) suspected contraband in possession of the appellant and, as such, a notice u/s 50 of the NDPS Act was served upon him. In response thereto, the appellant opted to be searched in the presence of a Gazetted officer. A wireless message was flashed and Shri Paramjit Singh Khera (PW3), Deputy Superintendent of Police (Headquarters), Fatehgarh Sahib, reached the spot. He (PW3) also apprised the appellant with regard to the search and the appellant reposed faith in the DSP and offered the search of the scooter in his (DSP) presence. ASI Pritam Singh (PW5) was directed to effect the search of the dickey of the scooter and he found opium, wrapped in a plastic paper. Two samples of 10 grams each were drawn and on weighment the residue opium was found to be 980 grams. The samples and the residue opium were sealed in separate parcels, which were duly sealed with the seals of ASI Pritam Singh (PW5) and DSP Paramjit Singh Khera (PW3). After completion of the formalities and recording of the statements of the witnesses in terms of Section 161, Cr.P.C., the appellant was arrested. A police memo was sent to the police station for registration of a case. On return to the police station, the appellant, the witnesses and the case property were produced before Inspector Bhula Singh, who verified the facts of the case from ASI Pritam Singh, the appellants as well as the witnesses and affixed his own seal on the samples and the parcel containing the residue opium. Under the direction of the Station House Officer, the case property was deposited with the Moharrir Head Constable. On 26.4.2000, ASI Pritam Singh produced the case property before the learned Area Judicial Magistrate and thereafter the said case property was again deposited with the Moharrir Head Constable. After receipt of the report from the Chemical Examiner (Ex. P6), the charge-sheet (report u/s 173, Cr.P.C.) was presented in the Court by SHO Sukhdev Singh. A copy of the report u/s 173, Cr.P.C., and copies of the documents accompanying the said report, were supplied to the appellant free of costs in terms of Section 207, Cr.P.C.

Finding a prima facie case, the appellant was charge-sheeted for commission of the offence punishable u/s 18 of the NDPS Act, vide order dated 11.8.2000, to which he pleaded not guilty and claimed trial.

In order to substantiate its allegations, the prosecution examined MHC Satpal Singh (PW1), Constable Ram Chand (PW2), DSP Paramjit Singh Khera (PW3), ASI Sikander Pal Singh (PW4) and ASI Pritam Singh (PW5). PW Sukhwinder Singh, Ex-Sarpanch, was given up being won over by the appellant.

After completion of the prosecution evidence, the statement of the appellant in terms of Section 313, Cr.P.C., was recorded in which he denied all the incriminating evidence and circumstances appearing against him and pleaded innocence.

In the defence evidence, the appellant examined Sukhwinder Singh, Ex-Sarpanch, as DW1 who inter alia denied his presence on the spot where the prosecution alleged to have effected the recovery of the contraband from the appellant in his (DW1) presence.

After perusing the depositions of the prosecution witnesses, the statement of the appellant and the deposition of DW1 Sukhwinder Singh, Ex-Sarpanch, this Court is of the considered opinion that the prosecution has been able to prove the guilt of the accused beyond the shadow of reasonable doubt and, as such, the finding of guilt recorded by the learned Trial Court is well based and no interference is called for by this Court.

However, there is substance in the submission of the learned counsel for the appellant that 1 Kg. opium recovered from the appellant on 25.4.2000 would attract the provisions of ''noncommercial'' quantity as per the amendment carried out in the NDPS Act in the year 2001. Appendix-I appended to the NDPS Act would clearly spell out that the case of the appellant would attract the provision of ''non-commercial'' quantity. For the sake of convenience, the relevant extract of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (9 Of 2001) is reproduced below:-

Application of this Act to pending cases.-

(1) Notwithstanding anything contained in subsection (2) of section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence:

Provided that nothing in this section shall apply to cases pending in appeal.

(2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence, which would not have been so punishable if this Act has not come into force.

After perusal of the amendment carried out in the year 2001, it is very much clear that 1 Kg. of opium recovered from the appellant would attract the provision of ''non-commercial'' quantity and, as such, he could be awarded the maximum sentence of ten years besides payment of fine up to Rs. 1,00,000/-.

In the considered opinion of this Court, the extreme penalty is not called for in the present case in view of the fact that the appellant is neither required nor involved in any other case. He is not a previous convict. Only 1 Kg. of opium was recovered from him and he has already faced the agony of the trial and the appeal for 14 years. As per learned counsel for the appellant at the time of commission of the offence, he was around 22 years old. He is a married person and has family to maintain.

Learned counsel for the State has produced the affidavit of the Superintendent, Maximum Security Jail, Nabha, showing the period of incarceration suffered by the appellant, which is taken on record. Perusal of the above affidavit reveals that the appellant has suffered incarceration for 2 years, 1 month and 22 days.

As a sequel to the above discussion, the substantive sentence of the appellant is reduced to the period already undergone by him. The amount of fine is reduced to Rs. 50,000/-. In default of payment of fine, the appellant shall undergo further rigorous imprisonment for nine months.

With the above modification in the order of sentence and fine, the present appeal is partly allowed.