Bhag Ram v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Crl. Appeal No.S-2113-SB of 2017 (O&M) Date of Decision: July 04, 2017 Bhag Ram ...Appellant

VERSUS

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE INDERJIT SINGH

Present:

Mr.Manvinder Sidhu, Advocate for the appellant.

Mr.B.S.Virk, Deputy Advocate General, Haryana for the respondent-State.

**** INDERJIT SINGH, J.

The present appeal has been filed by the appellant against State of Haryana, challenging the judgment of conviction dated 12.05.2017 and order of sentence dated 16.05.2017 passed by learned Addl. Sessions Judge, Sirsa, whereby the appellant was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of `1,50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year under Section 15 read with Section 31 of the NDPS Act.

The brief facts of the prosecution case as noted down in the judgment passed by learned Addl. Sessions Judge, Sirsa, are as under:- "2. The case of the prosecution is that on 06.09.2014 a police party headed by ASI Jagraj Singh (PW6) reached near Bus

-2Stand of village Kharia in connection with patrolling and detection of crime. A person was seen standing there while carrying a plastic bag in his right hand. The said person on seeing the police party, suddenly started walking towards Panjuana side. On suspicion, PW6 apprehended the said person at some distance and on enquiry the said person disclosed his identity as Bhag Ram son of Harchand, resident of village Lakrawali, District Srisa. Suspecting some contraband in the bag carried by said Bhag Ram, PW6 had served a notice u/s 50 of the NDPS Act (Ex.PW5/A) to said Bhag Ram apprising his right of search before some Gazetted Officer or a Magistrate who can be called at the spot or he can be produced before them along with his beg. In his reply to the notice Ex.PW5/B, he opted to get the search of his bag to PW6 ASI Jagraj.

Thereafter, PW6 conducted the search of the bag which led to the recovery of poppy straw. Two samples of 100 grams each were separated from the said poppy straw. The residue when weighed was found to be 2.3 kilograms. Both the samples and the residue were converted into separate parcels, the same were sealed with seal 'JS' and were taken into police possession vide recovery memo Ex.PW5/C. Seal after use was handed over to EHC Kasmir Chand (PW5). The notice, reply to notice and memo were thumb marked by the accused and were attested by EHC Kashmir Chand and constable Bhupinder Singh. Thereafter, PW6 prepared ruqa Ex.PW4/A and sent the same to the Police Station through constable Parveen Kumar for registration of a case where on the basis of which formal FIR Ex.PW4/B was registered by ASI Jaswinder Singh under his endorsement Ex.PW4/C.

Thereafter, PW4 ASI Jaswinder Singh along with constable Parveen Kumar reached at the spot where PW6 handed over the investigation of this case to PW4 and also handed over the sealed parcels of the case property, accused and the recovery witnesses. During investigation PW4 inspected the spot and prepared rough site plan Ex.PW4/D of the place of recovery on crime details form. PW4 prepared report Ex.PW4/E u/s 57 of the NDPS Act at the spot, formally arrested the accused. After completion of investigation at the spot, PW4 had produced accused, recovery witnesses along with sealed parcels of case property before Pardeep Kumar SHO (PW7) who verified the facts of the case from the accused as well as recovery witnesses.

PW7 had also affixed his seal 'PK' on each of the sealed parcel of the case property and also recorded supplementary statement of aforesaid witnesses. PW7 had also made his endorsement Ex.PW7/A on report Ex.PW4/E and sent the same to DSP (HQ),Sirsa.

3. On the next day, i.e. 07.09.2014, PW4 ASI Jaswinder Singh had produced the accused and entire case property along with application Ex.PW4/G before learned Illaqa Magistrate for attestation of inventory. During the proceeding of inventory, PW1 ESI Dharambir had taken photograph of the case

-3property. Learned Illaqa Magistrate, Sirsa attested the inventory and passed detailed order Ex.PW4/H. Thereafter, PW4 had deposited one sample parcel and specimen seal impression with MHC and remaining case property in Judicial Malkhana and accused was sent in judicial custody. PW2 EASI Leelu Ram, the then MHC of P.S. Sadar Sirsa had sent one sealed sample parcel through EASI Jangi Ram (PW3) to the office of Director, FSL, Madhuban for analysis without any tampering. After completion of investigation, the accused was sent to face trial under section 15,16,61,85 of N.D.P.S. Act by the S.H.O. P.S. Sadar Sirsa."

On presentation of challan against accused-appellant, copies of challan and other documents were supplied to him under Section 207 Cr.P.C. Finding prima facie case, the accused-appellant was charge-sheeted under Section 15 read with Section 31 of the NDPS Act, to which he pleaded not guilty and claimed trial.

In support of its case, prosecution examined PW-1 EASI Dharamvir, PW-2 EASI Lillu Ram, PW-3 EASI Jangi Ram, PW-4 ASI Jaswinder Singh, PW-5 EHC Kashmir Chand, PW-6 ASI Jagraj Singh and PW-7 Inspector Pardeep Kumar.

At the close of prosecution evidence, the accused-appellant was examined under Section 313 Cr.P.C. He was confronted with the evidence of the prosecution and he denied the correctness of the evidence and pleaded himself as innocent and his false implication in the present case. In defence, accused-appellant examined DW-1 ESI Ranvir Singh and DW-2 EASI Krishan Kumar.

The learned trial Court, after appreciation of the evidence, convicted and sentenced the accused-appellant as stated above. At the time of arguments, learned counsel for the appellant did not dispute the findings regarding conviction and only prayed for reduction

-4of sentence of the appellant. Learned counsel for the appellant contended that 2.5 kgs. of poppy straw has been recovered from the accused-appellant, which falls under non-commercial quantity. He also contended that the appellant is a poor person and suffering from criminal proceedings since 2014. Learned counsel for the appellant next contended that appellant has already undergone 2 months and 17 days of actual sentence. On the other hand, learned State counsel argued that case of the prosecution has been duly proved by the PWs. There is nothing on the record to show false implication of the accused in the present case. He next argued that PWs have consistently deposed regarding the recovery from the accused. Learned State counsel, therefore, argued that there being no merit, the present appeal should be dismissed.

I have heard learned counsel for the appellant as well as learned State counsel and have gone through the record. In view of the evidence, I find that the prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt. Therefore, the judgment of conviction dated 12.05.2017 passed by learned Addl. Sessions Judge, Sirsa, is correct, as per law and does not require any interference from this Court.

However, keeping in view the facts and circumstances of the present case and in view of the fact that appellant is stated to be a poor person and suffering from long protracted criminal proceedings since 2014 i.e. for the last about 3 years and further in view of the fact that appellant has already undergone actual sentence of 2 months and 17 days and keeping in view the fact the recovery from the accused-appellant falls under noncommercial quantity i.e. 2.5 kgs. of poppy straw, the sentence imposed upon

-5the appellant is reduced to the sentence already undergone by him. The sentence of fine imposed upon the appellant is also reduced and he is directed to pay a fine of `2,000/- instead of `1,50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of 15 days instead of one year.

Accordingly, present criminal appeal stands partly allowed. Appellant Bhag Ram, who is in custody, be set at liberty forthwith, if his custody is not required in connection with any other case, subject to payment of fine.

July 04, 2017 (INDERJIT SINGH) Vgulati JUDGE Whether speaking/reasoned Yes Whether reportable No