Punjab-Haryana High Court
Uttam Chand S/O Dola Singh vs The State Of Haryana on 25 July, 2008
Crl. Appeal No.274-SB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.274-SB of 2007
Date of Decision : July 25, 2008
Uttam Chand S/o Dola Singh, ....Appellant
resident of Village Tharvi,
P.S.Ani, District Kullu (H.P.)
Versus
The State of Haryana ....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. H.S.Jaswal, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 4.8.2004, rendered by Judge, Special Court, Panipat, vide which it convicted the accused/appellant, for the offence, punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only), and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for having been found in possession of 1 Kg. Charas (which falls within the ambit of non-commercial quantity), without any permit or licence.
Crl. Appeal No.274-SB of 2007 2
2. The facts, in brief, are that, on 6.3.2000, Pawan Kumar, ASI, alongwith other police officials, was present at Bus Stand, Bapoli, in connection with patrol duty, and checking of crime. RamKumar, an independent witness, met him, and when Pawan Kumar, ASI, was talking to him, he received a secret information, that one person belonging to the State of Himachal Pradesh, was sitting near the wall of Kanya High School, and was waiting for some customer, being in possession of Charas. On receipt of this information, Pawan Kumar, ASI, alongwith other police officials, went to the disclosed place, where the accused was found sitting. On seeing the police party, he got up, and started tunning towards rooms of the School, alongwith the jute bag, but was apprehended. On enquiry, he disclosed his name as Uttam Chand S/o Dola Singh, caste Rajput, resident of Tharvi, District Kullu. The search of the bag, being carried by him, in accordance with the provisions of law, was conducted, in the presence of Umrao Singh, Naib Tehsildar, Bapoli, who was called to the spot, by sending a message, as a result whereof, 1 Kg. Charas was recovered therefrom. A sample of 100 grams was taken out, and the remaining Charas was put into a separate container. The sample, and the container, containing the remaining Charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 20 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Surinder Singh, SI (PW-1), Rajender Singh, HC (PW-2), Bhupinder Singh, Constable (PW-3), Crl. Appeal No.274-SB of 2007 3 Prem Singh, MHC, (PW-4), Umrao Singh, Naib Tehsildar, (PW-5), and Pawan Kumar, SI (PW-6), the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant.
8. I have heard the learned counsel for the parties, and have gone through the evidence and record, of the case, carefully.
9. The Counsel for the appellant, did not assail the conviction recorded by the trial Court. He, however, submitted that the recovery of charas, effected from the accused, being 1 Kg. falls within the ambit of non-commercial quantity, as per the provisions of Section 2 (viia), of the Act. He further submitted that, under these circumstances, the sentence awarded to the accused, who has been in custody for the last more than 5 years, was highly excessive. The submission of the Counsel for the appellant, in this regard, appears to be correct. Since, the trial Court decided the case on 4.8.2004, the provisions of Narcotic Drugs & Psychotropic Substances Act (Amendment) Act, 2001, were applicable to the same. According to this Act, notwithstanding anything contained in sub-Section (2) of Section 1, all cases pending before the Courts, or under investigation, at the commencement of this Act, shall be disposed of, in accordance with the provisions of the Principal Act, as amended by this Act, Crl. Appeal No.274-SB of 2007 4 and accordingly any person found guilty of any offence, punishable under the Principal Act, as it stood immediately before such commencement, shall be liable for punishment, which is lesser than the punishment, for which he is otherwise liable, on the date of commission of such offence. According to Section 2 (viia), commercial quantity, in relation to Narcotic Drugs & Psychotropic Substances, means any quantity, greater than the quantity specified by the Central Government, by notification in the Official Gazette. According to entry 23 of the Notification, specifying small quantity and commercial quantity, recovery of 1 Kg. or above charas, falls within the purview of commercial quantity. However, in these circumstances, Section 2 (viia) of the Principal Act, shall prevail, over the Notification, referred to above. When there is a conflict between the provisions of the main Act, and the Notification issued thereunder, falling within the ambit of subordinate legislation, then the former shall prevail over the latter. Under these circumstances, the accused was only found in possession of non-commercial quantity of charas. It is, therefore, a fit case, in which the sentence awarded to the accused (now appellant) by the trial Court, should be reduced to R.I. for 5 years from R.I. for 10 years, and the sentence of fine should be reduced to Rs.2000/- from Rs.1 lac, as also the sentence in default of fine, should be reduced to one month from one year, as that would meet the ends of justice.
10. No other point, was urged, by the Counsel for the parties.
11. For the reasons recorded above, the appeal is dismissed, with the following modification. The judgment of conviction is upheld. The order of sentence is modified, by reducing the substantive sentence of the appellant, from R.I. for 10 years to R.I. for 5 years, and the fine from Rs.1 lac to Rs.2000/-, and punishment in default of fine, from one year to one month. The period of detention already undergone, by the appellant, during the course of investigation, enquiry, trial, and the pendency of appeal, shall be set off, against Crl. Appeal No.274-SB of 2007 5 the substantive sentence, awarded to him. The Chief Judicial Magistrate, Panipat, shall comply with the judgment, with due promptitude, and submit the compliance report, within a period of two months, from the date of receipt of the certified copy of the judgment.
July 25, 2008 (SHAM SUNDER) Vimal JUDGE