Virender Singh, J.@mdashAppellant Sikander Singh stands convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short `the Act''), vide impugned judgment of the learned Judge (Special Court) Patiala, dated 3.2.2005.
2. While declining the application for suspension of sentence vide order dated 3.3.2005, this appeal was posted for final (hearing). Trial Court records have also been received.
3. In brief, the case of the prosecution is that on 6.1.2002, ASI Nazir Singh PW-2 of CIA Staff, Barnala along with other police officials was going from link road, Thikriwala to link road Naiwala in his official vehicle for checking the suspected persons. When the police party reached near the drain bridge in the revenue limits of Barnala, the Appellant was seen coming from the opposite direction. He was on cycle, carrying two bags loaded on the cycle. On seeing the police party, he tried to turn towards drain side, but was apprehended. In the meanwhile, one Bhola Singh (independent witness) had also reached there. He (was) joined in the police party. The Appellant disclosed his name as Sikandar. ASI Nazir Singh apprised the Appellant of his right to get the bag searched in the presence of the Gazetted Officer or the Magistrate but he vide memo Exhibit PA opted the bags to be searched in the presence of some Gazetted Officer. DSP Kanwaldip Singh PW-3 was called at the spot. He also gave him the offer to be searched before some other Gazetted Officer or Magistrate. However, the Appellant reposed confidence in him vide memo Exhibit PB, which was signed by him and attested by the police officials and the independent witness. Therefore, the two bags, which were given serial Nos. 1 and 2, were checked. The bags were containing poppy husk. From each bag two samples of 250 gms. each of poppy husk were separated and put into separate parcels. The contents of the each bag when weighed came to 25-1/2 kgs. poppy husk (total 51 kgs.). The entire poppy husk was transferred in the respective bags. All the four samples and two main parcels of poppy husk were sealed by ASI Nazir Singh with his own seal bearing letters `NS''. DSP Kanwaldip Singh also sealed the same with his own seal bearing letters `KS''. All the articles were taken into possession at the spot. Personal search of the Appellant was also conducted. Only some amount was recovered. A ruka was sent to the Police Station, on the basis of which formal FIR was recorded. Memo Exhibit PH with regard to grounds of arrest was also prepared. Report u/s 57 of the Act was also prepared, which was endorsed by DSP, Kanwaldip Singh with his endorsement. Statements of the witnesses were recorded. The case property and the specimen of seal along with the Appellant were produced before Inspector Surinder Singh, SHO of Police Station, Barnala, who after verifying all the facts and investigation sealed the sample and the case property with his own seal bearing letters `SPS''. He also put the impression of his seal on the specimen of seal impression and deposited the case property with MHC Ajaib Singh with all the seals intact. After obtaining the report of the Chemical Examiner and completing the investigation, the Appellant was challaned. He was charged u/s 15 of the Act. As stated above, he now stands convicted. Hence, this appeal.
4. I have heard Mr. R.K. Gupta, learned Counsel for the Appellant as well as the learned State counsel. With their assistance I have also gone through the entire record.
5. Without assailing the impugned judgment on merits and confining his arguments with regard to quantum of sentence only, Mr. Gupta has raised the following two debatable propositions in this case.
6. The first submission made by Mr. Gupta in this case is that the recovery is allegedly effected from two bags carried by the Appellant. The total quantity including the four samples of 250 gms. each, comes to 52 kgs. Mr. Gupta contends that if the weight of the bags is taken out, in that situation the total quantity of the contraband (poppy husk) would certainly come down from 50 kgs. In order to strengthen his arguments, he submits that admittedly the poppy husk has not been weighed without the bag and giving all the allowance to the marginal error, it is bound to be less than 50 kgs. The learned Counsel then submits that in this eventuality, the minimum sentence provided under the Act would not be applicable. In support of his contentions, he relies upon a judgment of this Court rendered in Gurlal and Ors. v. State of Punjab, 2003(3) RCR(Criminal) Page 198. In the aforesaid case, the recovery was of three bags of poppy husk which weighed 53 kgs and it was observed that excluding the weight of bags and giving allowance for the marginal error in weight, the contraband recovered from the Appellant is taken to be 50 kgs. It was then observed that if the recovered contraband is considered as 50 kgs, minimum sentence is not applicable and the appropriate lower sentence should be imposed.
7. On the basis of the aforesaid submissions, the learned Counsel contends that in the instant case also, the recovery is of 52 kgs. of poppy husk from two jute bags and the case of the Appellant is squarely covered by the ratio of Gurlal Singh Singh''s case (supra).
8. The second limb of argument advanced by Mr. Gupta is that from each bag, two samples of 250 gms. of poppy husk were extracted and all the samples along with the main bulk were deposited with the MHC on the date of the alleged recovery. Out of the four samples, two were sent to the FSL for analysis. Mr. Gupta contends that it has not been made clear by the prosecution agency to the effect that each sample of 250 grams was representing one particular bag and the possibility of sending the two samples of contraband extracted from one bag, cannot be ruled out. While drawing my attention to the substantive statement and the affidavits Mr. Gupta states that although the two bags were given serial numbers 1 and 2 at the time of the alleged recovery, but thereafter, the evidence is missing with regard to the samples sent for analysis. He submits that for this reason also it can be said that the recovery allegedly effected from the Appellant comes down to half of it and the case of the Appellant then can be said to be on better pedestal for imposing lower sentence.
9. Mr. Gupta lastly contends that the Appellant by now has undergone three years and three months of actual awarded sentence and in case the minimum sentence is not applicable in this case on account of the aforesaid infirmities, then in that eventuality, Appellant prays for a lenient view with regard to reduction in the quantum of sentence, may be to the period already undergone by him. In the same stress, Mr. Gupta submits that the Appellant deserves the concessional tilt with regard to reduction in the fine.
10. The submissions made by Mr. Gupta are vehemently opposed by the learned State counsel, stating that there is no reason to disbelieve the procedure adopted by the prosecution agency and the recovery allegedly effected from the Appellants falls under `commercial quantity'' being 52 kgs of poppy husk and as such, he does not deserve any concessional tilt with regard to quantum of sentence.
11. I find force in the submissions made by Mr. Gupta.
12. Admittedly, the recovery is from two jute bags, each containing 26 kgs of poppy husk. The total comes to 52 kgs. The other admitted position is that the poppy husk was weighed along with the bags. For the purpose of maintaining the conviction, the weight of bags is not to be included at all. By giving all the allowance to the marginal error in the weighment and including the weight of the bag, in my considered view, the poppy husk allegedly recovered from the Appellant would not exceed 50 kgs. at all. The authority Gurlal Singh v. State of Punjab (supra), relied upon the learned Counsel for the Appellant, comes to the rescue of the Appellant.
13. On the point of weight of contraband, I am doubting the case of the prosecution, yet from another angle. Admittedly, four samples of 250 gms. each are taken from the two bags. To make it more clear, two samples of 250 gms were taken from each bag. As is clear from the statement of ASI Nazir Singh that all the samples were deposited with the MHC along with bulk of poppy husk on the date of recovery itself i.e. 6.1.2002. Exhibit PH tendered by Ajaib Singh, MHC, indicates that on 6.1.2002, SHO of Police Station, Barnala, deposited with him the four samples of 250 gms. each along with two bags of poppy husk containing 25-1/2 kgs each, and out of the same two samples of the poppy husk for the purposes of sending to the Chemical Examiner or analysis, were handed over to Constable Mohinder Singh on 14.1.2002. Similarly, when Constable Mohinder Singh stepped into the witness box as PW-6, he has stated that MHC Ajaib Singh has handed over to him two samples and sealed parcels, which he deposited in the office of Chemical Examiner, Chandigarh on 15.1.2002. The report of the Chemical Examiner, Exhibit PJ, also talks of the receipt of the two samples for analysis. From the aforesaid evidence, it is no-where clear that the two samples, which were sent for analysis were, in fact, the representative samples of one bag, each containing 25-1/2 kgs of poppy husk.
14. In view of what is discussed hereinabove, of the two samples being from one bag only, cannot be ruled out. It is so, then the recovery allegedly effected from the Appellant has to be reduced to just half of the actual quantity now shown by the prosecution.
15. Considering both the above weaknesses, I now safely conclude that the recovery of the contraband allegedly effected from the Appellant is either 50 kgs. of poppy husk or may be even less than that, but certainly it cannot be said to be more than 50 kgs. As having regard to the Legislative change (9 of 2001) minimum sentence is applicable, if recovery is more than 50 kgs. The same is not applicable in the case in hand and the appropriate lower sentence has to be imposed.
16. Keeping in view the entirety of facts, the ends of justice would be adequately met if the substantive sentence is reduced to the period already undergone by the Appellant.
17. Resultantly, while upholding the conviction of the Appellant, the sentence awarded to him is reduced to three years three months (the period already undergone). Similarly, I also reduce the sentence of fine to Rs. 5,000/- only; in default thereof the Appellant shall undergo RI for one month.
18. The net result is that the appeal is dismissed, except with the modification in the quantum of sentence as indicated above.
Appeal dismissed.
