Punjab-Haryana High CourtHari Shankar Shah vs State Of Union Territory on 1 July, 2010Author:Mohinder PalBench:Satish Kumar Mittal,Mohinder Pal-1-
              Criminal Appeal No.822-DB of 2002.




 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
                    AT CHANDIGARH
                           ...

                          Criminal Appeal No.822-DB of 2002.


                          Date of Decision:        July   01,2010.



Hari Shankar Shah                                  ... Appellant


                          VERSUS


State of Union Territory, Chandigarh               ... Respondent



CORAM :    HON'BLE MR.JUSTICE SATISH KUMAR MITTAL.
           HON'BLE MR.JUSTICE MOHINDER PAL.


1.   Whether Reporters of Local papers 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. S.S. Narula, Advocate,
           for the appellant.

           Mr. Hemant Bassi, Advocate,
           for the respondent.

                 -.-


MOHINDER PAL, J.Hari Shankar Shah         (appellant)   has      filed   this   appeal

against the judgment       of    conviction    and    the     sentence      order

dated 5.9.2002    passed        by the Judge, Special Court, Chandigarh,

whereby he was         convicted under Section 20 of the Narcotic Drugs-2-Criminal Appeal No.822-DB of 2002.and Psychotropic Substances Act, 1985 (hereinafter referred to                          as

`the Act')       and     sentenced       to undergo rigorous imprisonment for

twelve     years and to pay fine of Rs.1 lac,                   in default whereof       to

undergo further rigorous imprisonment for two years.The facts of the prosecution case, in brief, are that on

23.6.2000,       a police party headed by Sub Inspector Karnail Singh

was     present          near    the    market    of       Village Raipur     Khurd in

connection with patrol duty.             Sub Inspector Karnail Singh was,                at

that time, talking with the independent witnesses, namely, Krishan

and Charan Singh when              a secret information was               received      by

him     (Sub Inspector       Karnail Singh)      that      the      appellant, who was

going     towards Zirakpur,             was    having      `Charas' in his bag and

could      be      apprehended with            the      contraband if a       raid was

conducted.       After      forming       the raiding      party,     the police   party

apprehended              the appellant         near       Mile Stone      No.41      near

Zirakpur        Barrier.    Sub Inspector         Karnail Singh suspected               the

accused-appellant           to   be     possessing      contraband and, therefore,

served      a     notice     under Section 50 of the Act on him apprising

him of his right being searched               before    a Gazetted       Officer   or    a

Magistrate. The accused opted to be searched                      in the presence of a

Gazetted Officer.Presence of Deputy Superintendent of Police Vijay Pal

Singh     was      secured at the spot.              On     the direction of Deputy

Superintendent of Police               Vijay Pal Singh, search of the bag held

by the accused-appellant           was conducted, resulting             in recovery of

`Charas'     weighing       2 kilograms          and      750    grams,    which     was-3-Criminal Appeal No.822-DB of 2002.wrapped     in     a    cloth pouch (`Thailli') and a plastic             bag.        A

sample      of     100 grams of         `Charas' was        separated from the

recovered contraband. The            sample       and      the   bulk contraband

were separately        sealed   and taken into possession by the police.A     `ruqa'    was     sent     to the   Police Station    and       on its

basis the instant First Information Report was registered against

the accused.       Rough site plan of the place of recovery was prepared.

Statements of the witnesses were recorded                  underSection 161of

the Code of Criminal Procedure (for short `the Code').The sample was got analyzed from the Central Forensic

Science Laboratory, Chandigarh,              which was     opined to be that of

`Charas'.After      completion of       investigation   and   due formalities,

report underSection 173of the Code was                submitted in Court.Charge was framed against the appellant                    for     the

offence punishable under Section 20 of the Act. He did not plead guilty

to the charge and claimed trial.At     the trial,   the prosecution       examined Head Constable

Baldev Singh        (P.W.1),        Constable     Yash Pal       (P.W.2),         Head

Constable Gurdev Singh            (P.W.3),    Charan Singh,      an    independent

witness (P.W.4),       Sub Inspector Karnail Singh, Investigating Officer

(P.W.5), Sub Inspector          Har Sahay Sharma (P.W.6),              Ashok Kumar

Dalela, Junior Scientific Officer, Central Forensic Science Laboratory,

Chandigarh (P.W.7),         Head Constable Paramjit Singh (P.W.8),                  Sub

Inspector    Ishwar       Singh     (P.W.9)     and Deputy Superintendent of

Police Vijay Pal Singh (P.W.10).-4-Criminal Appeal No.822-DB of 2002.In his       statement recorded     underSection 313of        the

Code, the accused-appellant denied the prosecution allegations and

pleaded false implication. He further stated as under:-"      I was sitting in the       Dhaba in Village

                            Raipur Khurd when I was            forcibly   taken

                            away      by the police         and was       falsely

                            implicated in this   case.      My signatures were

                            obtained on blank papers and nothing was

                            recovered from me.However, no evidence was led by the accused in defence.The Trial Court after scrutinizing the evidence held that the

prosecution was able to prove its case beyond reasonable doubt and

that 2 kilograms          and 750 grams       of `Charas' was         recovered

from the     accused-appellant.        The    trial Court     convicted      and

sentenced the appellant, as mentioned above.We     have heard the learned counsel for         the parties and

have gone through the records of the case.Learned counsel for the         appellant, after arguing        the

matter for some time and comprehending that the                   case against

the    appellant     stood proved,     did not challenge the conviction of

the appellant for the           aforesaid offence. He, however, submitted

that   lenient view       in the matter of sentence may be taken              as

the appellant is      a    first offender   and the Sword of Damocles        has

remained hanging over           his head for      the last more than ten-5-Criminal Appeal No.822-DB of 2002.years, the recovery having been effected on                   23.6.2000.In this case, the       accused-appellant, after having been

convicted     by the     learned trial     Judge,           made      the      following

statement:-"     I am first offender           and    33      years    of

                           age. I am married.               I have four children out

                           of whom        three     are       daughters.         My old

                           parents are dependant              upon me.        I am the

                           only earning      hand in my family and exceptme three is no body else to look after my old

                           parents and       family members. Lenient view

                           may kindly be taken. "In the      case   of   Balwinder Singh               and      others     v.

Assistant Commissioner, Custom                and           Central    Excise,        AIR

2005      Supreme Court          2917,       the       sentence          of     rigorous

imprisonment     for       fourteen years        was        reduced         to rigorous

imprisonment for         ten years keeping in view the fact                     of    the

accused      being     first offender.      In     this      case,     the     accused-

appellant besides being first offender        is    the father of four children

and    has   to look after them,         his wife and          old parents. Keeping

in view the facts and circumstances of the case, we are                          of the

considered opinion that the ends of justice will be adequately                        met

with if the sentence of          rigorous imprisonment for twelve years

awarded      to the appellant in this       case       is     reduced       to rigorous-6-Criminal Appeal No.822-DB of 2002.imprisonment      for   ten   years.    We     order   accordingly.     The

sentence awarded to the appellant in default of payment of fine of

Rs.1 lac by the trial Court, which       is     rigorous imprisonment for

two years, is       also   reduced to     rigorous imprisonment for six

months.While maintaining        the conviction of the appellant for

the   aforesaid    offence,   the   impugned      sentence order      stands

modified to the extent indicated above.With the above modification in the sentence order, this

appeal is hereby dismissed.( SATISH KUMAR MITTAL )                       ( MOHINDER PAL )
    JUDGE                                         JUDGE

July 01,2010.
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