Punjab-Haryana High Court
Bashir Mohammad vs State Of Haryana on 21 April, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 1086-SB of 2002 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 1086-SB of 2002
Date of Decision: 21.4.2009
Bashir Mohammad
...Petitioner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. ,Sandeep Gahlawat, Advocate
Amicus Curiae for the petitioner.
Mr. S.S. Mor, Senior Deputy Advocate
General, Haryana, for the State.
Kanwaljit Singh Ahluwalia, J. (Oral)
Appellant Bashir Mohammad was convicted and sentenced by the Court of Special Judge, Panchkula, to undergo seven years rigorous imprisonment and a fine of Rs.70,000/- under Section 20(B) of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as "the Act") read with the provisions of Section 31 of the Act. In default of payment of fine, it was ordered that appellant shall undergo rigorous imprisonment for one year.
This appeal was filed in the year 2002. On various occasions nobody had caused appearance for the appellant, therefore, Mr. Sandeep Gahlawat, Advocate, was appointed as Amicus Curiae.
Case of the prosecution is that on 21.5.2001, Dilpazir Singh, Criminal Appeal No. 1086-SB of 2002 2 Inspector, Central Investigating Agency, Panchkula, along with his companion police officials was present in the market of Sector 7 at Panchkula. A secret information was received that the appellant Bashir Mohammad indulge in sale of charas and on that day he would be coming along with contraband article. Police party arranged holding of naka at Tawa Chowk. AT 4.45 P.M. accused was seen coming and was apprehended. From his possession 750 grams of charas was recovered. Due procedure regarding search, seizure, giving of option under Section 50 of the Act and recovery was followed by the Investigating Officer. In the present case, services of PW.1 Ashwani Sharma, Executive Magistrate, were also requisitioned at the spot. Appellant was found in possession of 750 grams of charas.
The matter was investigated and report under Section 173 Cr.P.C. was submitted.
The appellant was charged by the trial Court on the ground that on 21.5.2001 in the area of Tawa Chowk he was found in conscious possession of 750 grams of charas without any permit or license and thereby committed an offence under Section 20 of the Act.
Prosecution examined six witnesses.
All the incriminating evidence was put to the accused under Section 313 Cr.P.C.
This Court need not discuss the evidence, however, it can be briefly stated that Ashwani Sharma, Executive Magistrate, appeared as PW.1 and he has stated that in his presence recovery was effected.
PW.2 Dilpazir Singh, Inspector, who conducted investigation and carried out the proceedings regarding search, seizure and recovery, Criminal Appeal No. 1086-SB of 2002 3 was examined.
PW.3 Shiv Kumar, Constable deposed that he deposited the samples at Forensic Science Laboratory, Madhuban.
PW.4 Nasib Singh, Moharrir Head Constable, proved Register No. 19.
PW.5 Rattan Singh, Inspector, Station House Officer of Police Station, Sector 5, Panchkula, stated that on the day of occurrence Dilpazir Singh, Inspector, had produced the accused and case property before him.
Pw.6 Prem Chand, Head Constable, was posted as Moharrir Head Constable. He proved receipt of ruqa Ex.PC and registration of FIR Ex.PC/1.
Mr. Sandeep Gahlawat, Advocate, appearing as Amicus Curiae for the appellant has very fairly stated that he has gone through the entire evidence and the case file, to urge before this Court that he can only find one contradiction which according to him is material and fatal to the prosecution. He has stated that PW.1 Ashwani Sharma, Executive Magistrate, stated that when he reached at the spot, option under Section 50 of the Act was given by Dilpazir Singh, Inspector, and thereafter search was conducted, whereas PW.2 Dilpazir Singh, Inspector, has stated that before arrival of PW.1 Ashwani Sharma, Executive Magistrate, offer under Section 50 of the Act was given.
In the present case, recovery was effected in May 2001. PW.1 Ashwani Sharma, Executive Magistrate and PW.2 Dilpazir Singh, Inspector, were examined on 7.11.2005.
The witnesses had deposed to the extent that offer was given Criminal Appeal No. 1086-SB of 2002 4 under Section 50 of the Act. As to when it was given, some contradictions is bound to occur, between the testimony of witnesses, which cannot be said to be material. Therefore, the same is not to be relied upon for consideration.
At this stage, Mr. Sandeep Gahlawat, Advocate, appearing as Amicus Curiae for the appellant, has stated that occurrence pertains to year 2001 and the appellant has suffered protracted trial Court, the trial Court knowing fully well that recovery effected from the appellant was non-commercial quantity, had awarded excessive sentence.
Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, appearing for the State, has submitted that protracted trial can be one consideration before this Court. But the Court should not become oblivious of the fact that recovery of 750 grams of charas was effected from the appellant. On the query put to counsel for the State, whether the appellant is a previous convict or any other case has been registered against him after registration of the present case, counsel for the State is unable to state anything due to lack of necessary instructions.
Taking into consideration the fact that occurrence pertains to year 2001, and the appellant has suffered protracted trial, sentence awarded upon the appellant is reduced from seven years to three years and sentence of fine is reduced from Rs.70,000/- to Rs.25,000/-.
This Court appreciates the endeavour and efforts made by Mr. Sandeep Gahlawat, Advocate, in assisting this Court as Amicus Curiae. The Haryana State Legal Services Authority is directed to pay necessary remuneration to Mr. Sandeep Gahlawat, advocate, for assisting this Court.
Criminal Appeal No. 1086-SB of 2002 5
With these modifications in the sentence, the present appeal is disposed off.
(Kanwaljit Singh Ahluwalia) Judge April 21, 2009 "DK"