Baldev Singh, J.@mdashSurjit Singh son of Surain Singh resident of village Mehar Khewa in the jurisdiction of Police Station Sadar Fazilka, District Ferozepur, has filed this revision petition against the impugned judgment dated July 5,1990, passed by Sh. Gurdev Singh, the then Additional Sessions Judge, Ferozepur, vide which the judgment and sentence order, both dated July 10,1989, passed by Shri Dharam Singh, the then Judicial Magistrate 1st Class, Fazilka, were upheld and he was convicted u/s 9 of the Opium Act, 1878 (hereinafter referred to as ''the Act'') and was sentenced to undergo rigorous imprisonment for two and a half years (thirty months) and to pay fine of Rs.300/- and in default of payment of fine to undergo further rigorous imprisonment for two months.
2. The facts of the prosecution case are that on November 11,1984, Sub-Inspector Kanwarjit Singh alongwith Head Constable Roor Singh and other police officials was travelling in a government jeep for holding ''nakabandi'' in the area of Village Mauzam. Head Constable Inder Singh and other Border Security Force Jawans met them on the way and they were joined in the party. Ultimately, ''Nakabandi'' was made in the area of Village Mauzam. At about 2 in the morning, Surjit Singh (accused-petitioner) came from the side of Pakistan after having crossed river Sutlej. He was intercepted at the place of ''nakabandi''. He was found carrying a gunny bag on his head, which contained opium wrapped in a glazed paper. 10 grams opium was taken out as a sample. It was sealed into a parcel. The remaining bulk of the opium was weighed on the spot and was found 29 kilograms and 990 grams. It was separately sealed into a parcel by Sub-Inspector Kanwarjit Singh with the seal bearing impression of letters ''KSS''. The sample parcel and the parcel containing the bulk of opium were taken into possession vide recovery memo Exhibit P.A. Sample seal was prepared. The seal after use was given to Head Constable Inder Singh. From further search of the accused-petitioner, Rs.30/- were recovered. These were separately taken into possession vide recovery memo Exhibit P.B. Ruqa (Exhibit P.C.) was sent, whereupon this case was registered in Police Station Sadar Fazilka. The case property was deposited in the ''Malkhana''. Thereafter, the sample was sent for analysis and vide report of the Chemical Examiner, it was found to be opium. Thereafter, the challan was put in against the accused-petitioner.
3. He was tried for the offence punishable u/s 9 of the Act.
4. The prosecution, at the trial, had examined five witnesses, namely, PW-1 Inspector Kanwarjit Singh, PW-2 Head Constable Roor Singh, PW-3 Constable Kartar Singh, PW-4 Constable Pala Singh and PW-5 Head Constable Mohinder Singh.
5. The accused-petitioner in his statement recorded u/s 313 of the Code of Criminal Procedure stated that he was implicated in this false case. No opium was recovered from him. He was also involved in a case u/s 3 of the Passport Act. He was acquitted in that case. He produced copy of judgment dated August 19, 1988 (Exhibit D. A.). He did not, however, produce any other evidence.
6. The trial Court found the prosecution case as proved beyond every reasonable doubt. So, it convicted the accused-petitioner u/s 9 of the Act and sentenced him to undergo rigorous imprisonment for two and a half years and to pay fine of Rs.300/- and in default of payment of fine to undergo further rigorous imprisonment for two months.
7. The accused-petitioner had filed appeal. The same was dismissed vide judgment dated July 5,1990 and the conviction and sentence order passed by the trial Court were affirmed.
8. Aggrieved by both the judgments of the trial Court and of the lower appellate Court dated July 10,1989 and July 5,1990, respectively, he has filed this revision petition.
9. The Ld. counsel for the petitioner argued that the link evidence in this case is missing. Exhibit P. W.4/A is an affidavit of deceased Assistant Moharrir Head Constable Gurmit Singh. He allegedly kept the case property with him before it was sent to the office of the Chemical Examiner. He was not examined and in the absence of his testimony, it was not proved beyond doubt that the case property remained intact during the time it remained in his custody. PW-4 Constable Pala Singh simply recognized the signatures of Assistant Moharrir Head Constable Gurmit Singh on the affidavit. He was examined only to fill up the lacuna in the prosecution evidence. The petitioner was seriously prejudiced as he could not avail opportunity to cross-examine Assistant Moharrir Head'' Constable Gurmit Singh. This aspect of the case has been dealt with in para No.8 of the impugned judgment of the lower appellate Court dated July 5, 1990. PW-5 Mohinder Singh deposed that in the'' Malkhana'' register No. 19 there is an entry of the case property along with sample of this case on November 11,1984. It is mentioned in it that Kartar Singh had taken the sample parcel on November 28,1984 and deposited the same in the office of the Chemical Examiner. PW-4 Pala Singh produced on record affidavit of Assistant Moharrir Head" Constable Gurmit Singh from whom said Kartar Singh had taken the sample. Affidavit (Exhibit PW 4/A) of Assistant Moharrir Head
Constable Gurmit Singh is duly attested and there is no infirmity in it. Assistant Moharrir Head Constable Gurmit Singh had died after swearing his affidavit. It is clear from the affidavit (Exhibit P.W.4/A) that Kanwarjit Singh had deposited the case property with seals intact on November 11,1984 with Assistant Moharrir Head Constable Gurmit Singh. PW-3 Kartar Singh had deposed that he had taken the sample on November 28, 1984 from Gurmit Singh and had deposited the same in the office of the Chemical Examiner. The lower appellate Court, after a thorough discussion on the point, determined that all the documentary evidence which was available with the prosecution, had been produce3d on the record and the petitioner was not entitled for any benefit on account of death of Assistant Moharrir Head Constable Gurmit Singh. Therefore, the contention of the Ld. counsel for the petitioner that the link evidence in this case was missing, should be repelled. The approach of the lower appellate Court is legal. No prejudice is caused to the petitioner.
10. The Ld. counsel for the petitioner argued that no independent witness was joined in this case, despite the fact that there was ample opportunity for doing so. The alleged recovery was effected at night time. No one was available who could be joined. So far as nonjoinder of any independent witness is concerned the recovery is not rendered doubtful. There are no discrepancies in the testimonies of the official witnesses. These cannot be discarded merely because of their official status. They are as good witnesses as any other person may be. From their evidence, the factum of the recovery is proved beyond reasonable doubt.
11. There is no merit in this revision petition. The conviction of the petitioner u/s 9 of the Act is maintained.
12. The Ld. counsel for the petitioner submitted that he is facing the agony of this case since November 11,1984. He was poor labourer and was aged about 20 years at the time of recovery. He was the sole bread earner of the family So, lenient view may be taken regarding sentence.
13. In the case of State of Punjab v. Tota Singh, 2004(1) RCR Cri 663, 14 kilograms opium was recovered from the appellant. At the time of the recovery, he was aged about 20 years. He was convicted u/s 9 of the Act and was sentenced to undergo rigorous imprisonment for one year and to pay Rs.500/- as fine. He had filed appeal which was allowed by the lower appellate Court on July 16,1990. Thereafter, the State of Punjab had filed appeal in this Court. The acquittal was set aside. However, the sentence was reduced to already undergone (three weeks). In the case of Karnail Singh v. State of Punjab, 2000(2) RCR(Cri) 351, the recovery was 82 kilograms of opium. The petitioner was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for two months. His appeal against the judgment of conviction was dismissed. Thereafter, he had filed revision petition. The incident was of October 15, 1982. The sentence was reduced to already undergone i.e. one and a half months. The amount of fine was enhanced from Rs.500/- to Rs.3,000/-. In the case of Iqbal Singh v. Slate of Punjab, 1994(2) Recent Criminal Reports 388, the recovery was of 20 kilograms of opium and 5 gold biscuits on January 30,1993. The recovery of gold was dropped by the custom Authorities. It was held that there was no ground to acquit the petitioner under the Act. A regular trial was held and he was found guilty. He had faced litigation for about 11 years. The sentence was reduced to already undergone.
14. In this case, the petitioner was aged about 20 years on November 11, 1984 when the recovery was effected from him. He is facing the proceedings for the last more than 20 years. He has suffered financially during this period. He has already undergone incarceration for 95 days. The sentence is reduced to already undergone. The amount of fine is enhanced from Rs.300/- to Rs.10,000/-. Fine of Rs.300/-.was deposited in the trial Court. For realisation of remaining amount of fine, warrants of recovery be sent to the Chief Judicial Magistrate, Ferozepur.
The revision petition stands disposed of accordingly.
