Swarn Singh vs State of Punjab

K.C. Puri, J.—This is an appeal directed by the accused-Appellant Swarn Singh against the judgment dated 5.2.2011 passed by Sh. J.S. Bhinder, Special Judge, Ferozepur, vide which the accused has been convicted u/s 21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter after to be referred to as ''the NDPS Act'') and sentence to undergo rigorous imprisonment for six months and to pay fine of ` 2,000/-. In case of default of payment of fine, the accused was to further undergo rigorous imprisonment for 1 month, for having been found in possession of 10 grams of smack.

Briefly stated, the facts of the case of the prosecution are that on 1.7.2007, SI Jaswant Rai alongwith the other police officials was going towards Jhoke Hari Har in connection with patrolling. When the police party reached near brick kiln of Chiman Lal in the area of village Jhoke Hari Har, accused was seen standing on the turning point of the link road. On seeing the police party the accused became nervous and took out one polythene bag from right pocket of his pant and threw the same. On suspicion, he was apprehended. Then SI Jaswant Rai, Investigating Officer of this case checked the polythene thrown by the accused, as a result of which smack was recovered. On weighment it came to be 10 grams. One sample of two grams was separated and its parcel was prepared. The remaining smack was also put in a separate parcel. The both the parcels were duly sealed. The entire case property was taken into possession vide recovery memo. Ruqa was sent to the Police Station for registration of the case against the accused, on the basis of which FIR was registered. From the personal search of the accused, a sum of ` 85/-was recovered. The accused was arrested and grounds of arrest were intimated to him. Rough site plan was prepared and statements of witnesses were recorded. On return to police station, the Investigating Officer produced the accused alongwith case property before ASI / Officiating SHO Des Raj who also affixed his seal on the case property. After receiving the report of Chemical Examiner and completion of investigation, challan was presented against the accused. Charge u/s 21 of the NDPS Act was served upon the accused, to which he pleaded not guilty and claimed trial.

The prosecution, in order to prove its case, examined PW-1 SI Jaswant Rai, PW-2 SI Des Raj, PW-3 ASI Malkiat Singh, PW-4 HC Suraj Parkash and closed the prosecution evidence.

The accused was examined u/s 313 Code of Criminal Procedure and all the incriminating evidence was put to him, to which he denied and claimed that he is innocent and pleaded that he has been falsely implicated in this case In his defence the accused led no evidence.

The trial Court after appraisal of the evidence found the accused guilty u/s 21 of the NDPS Act and sentence him to undergo imprisonment and fine as narrated above.

Feeling dissatisfied with the above said judgment of conviction, accused - Appellant has preferred the present appeal.

Learned Counsel for the Appellant has not challenged the conviction recorded by the trial Court, but has submitted that the Appellant has undergone incarnation for a period of 3 months and 2 days out of substantive sentence of 6 months. It is further contended that the Appellant is facing trial since July 2007 and is not a previous convict nor any other case is pending against him. So, prayer has been made for reduction of sentence.

I have carefully considered the submission and have also gone through the record of the case.

So far as the conviction recorded by the trial Court is concerned, that has not been challenged by the counsel for the Appellant. However, since this is the first appeal, I have gone through the record. The judgment is based upon the factual position. From the perusal of the judgment itself, it is revealed that recovery of 10 grams of smack from the accused-Appellant is dully corroborated by the recovery witnesses. So, the conviction recorded by the trial Court stands affirmed.

Now, reverting to the quantum of sentence, the Appellant is facing trial since July 2007. Recovery from the Appellant is of 10 grams of smack without any licence or permit. As per the conviction slip he is not the previous convict nor any other case is pending against him. He has undergone incarnation for a period of 3 months and 2 days out of substantive sentence of 6 months.

So, in keeping in view all the circumstances, the sentence of the Appellant is reduced to the period already undergone. However, the sentence of fine stands affirmed.

With the above said modification, the appeal stands disposed of.

A copy of the judgment be sent to the trial Court for compliance.