Wakil Chand vs State of Punjab

P.K. Jain, J.—This revision is directed against the judgment dated May 14, 1996, passed by the Additional Sessions Judge, Mansa, whereby the conviction and sentence of the petitioner for an offence u/s 9 of the Opium Act, recorded by the Judicial Magistrate, Mansa, by his judgment and order dated January 20, 1995, have been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 250/-, and in default of payment of fine to undergo further simple imprisonment for one month.

The necessary facts for the disposal of his revision are that on July 7,1985 S.I. Jarnail Singh of Police Station Boha, along with his other associates, was on patrolling duty. Near the drain bridge of village Ganda Khurd the petitioner was sighted while coming from the opposite side having a bag in his left hand. On seeing the police party, he tried to slip towards the left but was over powered. On conducting the search of the bag, opium weighing 4 Kgs. was recovered. A sample weighing 20 gms. was separated. The sample as well as the remaining contents were converted into two separate parcels and sealed with the seal of ''JS''. Ruqa Exhibit PB was sent to the Police Station, on the basis of which formal FIR Exhibit PB/1 was recorded. Sample parcel was sent to the Chemical Examiner and the report Exhibit PD was received. After completing the investigation a charge-sheet was submitted to the Court.

A charge u/s 9 of the Opium Act was framed against the petitioner, which he denied and claimed trial. In support of its case, the prosecution examined 3 witnesses including Subeg Singh, Ex.-Sarpanch. In his statement recorded u/s 313 of the Code of Criminal Procedure, the petitioner denied the allegations of the prosecution and pleaded false implication. He examined 2 witnesses in his defence.

On an appraisal of the evidence on the record, the trial Magistrate found the petitioner to be guilty u/s 9 of the Act, and convicted and sentenced him as stated above. Feeling aggrieved, the petitioner challenged his conviction and sentence by way of appeal which did not find favour with the Additional Sessions Judge, Mansa, and (he same was dismissed by the impugned judgment. Hence this revision.

It may be stated that since there was a concurrent finding of facts recorded by the two Courts below, in no illegality or irregularity could be pointed out at the motion hearing, the learned counsel for the petitioner confined his revision to the quantum of sentence imposed upon the petitioner. Notice of motion was accordingly issued to the Slate.

I have heard the learned counsel for the parties and have perused the record.

Shri C. M. Munjal, Advocate, learned counsel for the petitioner, has argued that the petitioner is not a previous convict; that the case was registered against the petitioner on 7-7-1985 and he was convicted by the trial Court on 20-1-1995, which conviction was confirmed by the appellate Court on 14-5-1996. According to the learned counsel, the petitioner has already undergone the agony of a criminal trial for a period of more than 10 years. Thus, the learned counsel has urged that the petitioner may be released on probation. In support of this plea, reliance has been placed upon two judgments of this Court rendered in Balbir Singh v. State of Punjab (1990) 2 RCR 231, and Crl. Revision No. 942 of 1995, Pal Singh v. State of Punjab, decided on 1-2-1996.

On the other hand, Shri Ramanjit Singh, learned Assistant A. G. Punjab, has argued that the petitioner was found to be in possession of 4 kgs. of opium which in itself goes to show that the petitioner was indulging in illicit traffic of narcotics and he should not be dealt with leniently by releasing him on probation. It has been argued by the learned A.A.G., that the sentence imposed upon the petitioner does not call for any interference.

I have given my careful thought to the respective arguments advanced at the Bar.

From a bare perusal of the judgments of the two Courts below, it is evident that the case against the petitioner was registered on 7-7-1985, the charge-sheet was filed in the Court on 22-12-1990. In other words, the fate of the petitioner was hanging fire with the police for a long period of 5 years. Then the petitioner faced the criminal trial before the Judicial Magistrate till 20-1-1995 i.e. for about four years. He also faced the appellate proceedings for about 1 1/2 years, in other words, the petitioner faced the agony of criminal proceedings for a long period of more than 10 years.

In Chander Bhan v. State of Haryana (1996) 1 RCR 125, I had the occasion to consider the effect of an inordinate delay in concluding the trial against an accused person qua the sentence to be imposed upon him. in para 7 of the judgment, it was observed as under:-

"Now it cannot be disputed that the right to speedy and expeditious trial is one of the most valuable and cherished right guaranteed under the Constitution. Fundamental rights were not a teasing illusions to be mocked at. These were meant to be enforced and made a reality. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. This is how, the Court shall understand this right and have gone to the extent of quashing the prosecution after such inordinate delay in concluding the trial of an accused keeping in view the facts and circumstances of the case. Keeping a person in suspended animation for 10 years or more without any reason at all cannot be with the spirit of the procedure established by law. It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution by this Court in the exercise of its extraordinary jurisdiction."

This view finds affirmation in a decision of the apex Court in Braham Dass Vs. State of Himachal Pradesh, and two other judgments of this Court rendered in Nand Lal v. State of Haryana (1994) 1 RCR 160. The present case is fully covered by the views expressed by me earlier in Chander Bhan''s case 1996 1 RCR 125 (supra) duly supported by the authority of the apex Court and the earlier decisions of this Court. It is also not disputed that the petitioner has also undergone a part of the sentence imposed upon him.

In Balbir Singh''s case 1990 (2) RCR 231 (supra) the petitioner was found to be in possession of 5 Kgs. and 500 gins, of opium. The petitioner in that case faced the ordeal of trial for about 5 years, in these circumstances, the petitioner was ordered to be released on probation. Similar view was expressed in Pal Singh''s case (supra).

For the reasons mentioned above, this revision succeeds in part. The conviction of the petitioner for the offence u/s 9 of the Opium Act is hereby affirmed. The sentence of imprisonment imposed upon the petitioner is hereby suspended and he is directed to be released on probation for a period of one year'' on his furnishing a requisite bond in the sum of Rs. 5000/- with one surety in the like amount to the satisfaction of the trial Court undertaking to keep the peace and be of good behaviour for the abovesaid period and to appear to receive the sentence when called upon to do so in the meantime. The fine imposed upon the petitioner is converted into litigation expenses payable to the State.