Punjab-Haryana High Court
Balvinder @ Gola vs State Of Haryana on 16 August, 2010
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No.1881-SB of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl.Appeal No.1881-SB of 2010
Date of decision:16.8.2010
Balvinder @ Gola
... Appellant
vs.
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.Dinesh Arora, Advocate,
for the appellant.
Mr.Paramjit Batta, Addl.AG, Haryana.
...
JORA SINGH, J.
Balvinder Singh @ Gola was apprehended on 21.3.2007 by the police party headed by SI Om Parkash. 6 grams smack was recovered from him. Vide impugned judgment of conviction dated 12.7.2010 and order of sentence dated 17.7.2010, he was convicted under Section 17 of the NDPS Act and directed to undergo RI for two months and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo SI for fifteen days.
Prosecution story, in brief, is that on 21.3.2007, police party headed by SI Om Parkash while on patrol duty was present near Mata Darwaja Chowk. In the meantime, secret information regarding FIR No.246 of 2006 under Sections 457/380 IPC, PS Civil Line, Rohtak, was received. Accused was arrested while present near Mata Darwaja Chowk and on his personal search, one mobile phone was recovered from the pocket of his pants and 6 grams smack was recovered from his polythene bag. 2 grams smack was separated to serve as sample. Remaining smack was found to be 4 grams. Sample and remaining smack were made into separate sealed parcels sealed with seal bearing impression `AP'. Seal after its use was handed over to ASI Dilbag Singh. Ruqa (Ex.PA) was sent to the police station, on the basis of which, formal FIR was recorded. On return to the police station, accused along with case property was produced before SHO Pawan Kumar, who after verifying the facts from the accused as well as witnesses, had affixed his own seal bearing impression `PK' on the sealed parcels. Investigating Crl.Appeal No.1881-SB of 2010 (O&M) 2 Officer was directed to deposit the case property with the Incharge of Malkhana. After completion of investigation, challan was presented in the Court.
Accused was charged under Section 17 of the NDPS Act, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW1 EHC Phool Singh, who had delivered special report to the Ilaqa Magistrate.
PW2 ASI Hazari Lal stated that on receipt of ruqa, he had recorded formal FIR (Ex.PB).
PW3 EHC Surender stated that he had taken photographs of parcels on 22.3.2007 as per direction of learned JMIC, Rohtak. Photographs are Ex.P1 to Ex.P3 and their negatives are Ex.P4 to Ex.P6.
PW4 ASI Dilbag Singh stated that he was with the Investigating Officer and in his presence, 6 grams smack was recovered from the accused. 2 grams smack was separated to serve sample. Sample and remaining 4 grams smack were sealed separately with seal bearing impression `AP'. Sealed parcels were taken into police possession vide separate memo attested by the witnesses. Seal after its use was handed over to him and on return to the police station, Investigating Officer had produced the accused along with case property before the SHO, who after verifying the facts from the accused as well as witnesses, had affixed his own seal bearing impression `PK' on the sealed parcels.
PW5 EHC Sukhdarshan stated that he had deposited sealed sample parcel in the office of FSL, Madhuban.
PW6 SI Ram Kumar stated that on 21.3.2007, SI Om Parkash had deposited case property with him. On 22.3.2007, sealed parcel along with seal impression was handed over to HC Sukhdarshan Singh for depositing in the office of FSL, Madhuban.
PW7 ASI Om Parkash had partly investigated the case.
PW8 Om Parkash, retired SI, was the Investigating Officer, and stated that 6 grams smack was recovered from the accused.
PW9 Inspector Pawan Kumar was the SHO before whom case property along with accused was produced by the Investigating Officer. Crl.Appeal No.1881-SB of 2010 (O&M) 3
PW10 Vimal Sapra, the then Addl. Chief Judicial Magistrate, Rohtak, deposed regarding compliance of Section 52-A of NDPS Act.
After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent.
After hearing learned Public Prosecutor for the State, learned counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on file.
Notice of application for suspension of sentence was issued to the State. When application for suspension of sentence was to be heard, then learned counsel for the appellant stated that application for suspension of sentence is not to be pressed. Recovery is of 6 grams smack. Out of two months, appellant remained in custody for fourteen days. Appellant is the first offender and no other case is pending against him. Requested to take lenient view.
Learned State counsel argued that recovery is of 6 grams smack. No objection if lenient view is taken.
6 grams smack was recovered from the appellant. 2 grams smack was separated to serve sample. Sample and remaining 4 grams smack were separately sealed with seal bearing impression `AP'. After recovery, case property along with accused was produced before the SHO. SHO had also affixed his own seal bearing impression `PK' after verifying the facts of the case from the accused and the witnesses. Sealed sample parcel along with seal impression was deposited in the office of FSL, Madhuban, and as per report of laboratory, contents of sample were found to be smack. Before recovery appellant had no enmity with the police party. Without enmity, there was no idea to implicate the appellant. Appellant is the first offender. No evidence that appellant was a smuggler or addict. Evidence on file was rightly scrutinized by the trial Court.
Appellant was directed to undergo RI for two months and out of two months, he has already undergone fourteen days. Appellant is the first offender and is of Crl.Appeal No.1881-SB of 2010 (O&M) 4 young age. Recovery is not heavy. After conviction, sentence of imprisonment was suspended by the trial Court and in case the appellant is again sent to jail to undergo imprisonment as ordered by the trial Court, then he is to become hard criminal.
Keeping in view the quantity of contraband recovered and antecedents of the appellant, I take a lenient view. Sentence of the appellant is reduced to already undergone (fourteen days). Fine maintained.
For the reasons recorded above, appeal without merit is dismissed with modification qua sentence.
16.8.2010 ( JORA SINGH ) pk JUDGE