Tarsem Chand vs State of Haryana

S.S. Dewan, J.

For having been in possession of a massive haul of 20 Kgs. of opium, the petitioner was charged under section 9 of the Opium Act before the SubDivisional Judicial Magistrate, Mansa. Finding him guilty thereunder, he was convicted and a deterrent sentence of two years rigorous imprisonment and a fine of Rs. 2,000/ was imposed on him. On appeal, the learned Additional Sessions Judge, Bhatinda, in exhautive judgment has upheld his conviction and sentence, hence the revision.

It is unnecessary to recount the facts. The prosecution case primarily rests on the unimpeached testimony of Mukhtiar Singh Assistant Sub Inspector PW 1 Rattan Singh Sub Inspector PW 2, Meer Singh Constable PW 3 and Bant Singh Assistant Moharrir Head Constable PW 4. When examined under section 313, Criminal Procedure Code, the petitioner denied the prosecution allegations and pleaded false implication in the case. He, However, examined two witnesses in defence.

The salient feature of the case is that admittedly the prosecution witnesses have not the least animus against the petitioner. There appears to be not a hint or explanation on the side of the petitioner as to why he was falsely implicated in this case. Faced with the uphill task of challengingt the conviction on merits within the confines of revisional jurisdiction, Mr. Bali has very fairly conceded that he was unable to do so. The only question agitated before me was that the case property had not been produced in teh Court and according to him there was no entry in Register No. 19 regarding the despatch of the case property to the Court nor there was signature of anybody regarding the despatch of the case property and in such circumstances, the case of the prosecution was not free from doubt. This contention does credit to the ingenuity to the learned counsel for the petitioner but does not seem to bear the scrutiny of a close logical analysis. This contention seems to be wholly unfounded. The case property was produced in the Court and exhibited, the, The prosecution witnesses firmly identified the case property and there appears to be no infirmity this identification. There is no doubt that it was the duty of the police to make an entry in Register No. 19 regarding the despatch of the case property to the Court but if it was not done inadvertently, no prejudice is shown to have beden caused to the petitioner and he cannot claim the vitiation of his conviction. Almost in similar circumstances, a Division Bench of this Court in Balraj Singh v. The State of Punjab 1982 C.C. Cases 204 (P&H) observed in the following terms :

"That in case of innocent or inadvertent nonproduction of the case property material prejudice is to be shown by the accused in order to claim the vitiation of the conviction. No abstract or absolute rule that "no case property, no conviction" can possibly be raised to the pedestal of a rule of law, because this by itself is likely to occasion a failure of justice. As has been said earlier, the substantial issues in a criminal trial like the proof and punishment of crime should not be convderted into a plaything of tecknicalities."

The trial Court expressly adverted to the question of sentencne that the huge quantity of contraband plainly showed that it was meant for trading and smuggling therein. It was also noticed that the economic nature of the offence and its effect on the society in general do not warrant the application of the provisions of probation of Offenders Act. The appellate Court has also taken the same view. I am unable to take a contrary view to the valid exercise of discretion by the Courts below. A large haul of opium recovered from the petitioner would leave no manner of doubt that he was engaged in the n efarious trade of smuggling of opium. There is, however, marginal scope for reduction in the sentence keeping in view the fact that the occurrence took place as far back as 1980. I accordingly reduce his sentence of imprisonment to one year but impose a fine of Rs. 3,000/ on him in addition to the fine imposed by the trial Court as I feel that it will meet the ends of justice. In case of default of payment of fine, he shall suffer further rigorous imprisonment for one year.

With this modification in the sentence, the revision petition fails and is accordingly dismissed.