High Court of Punjab and Haryana, Chandigarh
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Balbir Singh son of Gehal Singh v. The State of Punjab. - CR-674-1990  RD-P&H 5266 (7 August 2006)
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH.
Criminal Revision No. 674 of 1990.
Date of Decision: August 17, 2006.
Balbir Singh son of Gehal Singh 2. Kala Singh son of Balbir Singh, both residents of Village Thatha.
The State of Punjab.
Appeal against the judgment/order dated July 25, 1990 passed by Mrs. Bakshish Kaur, the then Additional Sessions Judge, Amritsar.
BEFORE: HON'BLE MR.JUSTICE R.S.MADAN.
Present: Shri Manish Prabhakar, Advocate, for the petitioners.
Shri Ramandeep Sandhu, Deputy Advocate General, Punjab, for the respondent-State.
This revision petition is directed against the order dated July 25, 1990 passed by the then Additional Sessions Judge, Amritsar, in Criminal Appeal No.33 of 1989, vide which she maintained the orders of conviction and sentence dated August 29, 1989, passed by Judicial Magistrate Ist Class, Patti, whereby the accused-appellants were convicted under Section 9 of the Opium Act for keeping in their possession 30 Kgs. Each, Opium contained in three bags and sentenced them to undergo rigorous imprisonment for two years each and to pay a fine of Rs.2000/- each. In default of payment of fine, to undergo further RI for a period of four months each.
2. In brief the facts of the prosecution are that on 23.12.1984 SI Kishore Chand along with other police officials and Shri H.B.Chand, Deputy Commandant 28th
Battalion, BSPF, was holding naka on the bridge of Canal minor in the revenue estate of Village Mehmoodpura. Three persons namely, Balbir Singh, Kala Singh and Assa Singh were seen coming from the side of Village Mehmoodpura, carrying bundles on their heads. On being signaled by the 2 Criminal Revision No. 674 of 1990.
police party, Balbir Singh and Kala Singh after throwing the bundles ran away whereas Assa Singh was apprehended at the spot. The bundle which the accused was carrying was searched and it was found to be containing opium wrapped in a glazed paper. From his person search a pistol without any licence was recovered for which a separate case under the Arms Act was got registered.
From the search of bundles which were thrown by Balbir Singh and Kala Singh accused, it was found to be containing opium which on weighment came to 30 Kgs each. Ten grams of opium was separated as sample from each of the three bundles and the residue of opium recovered was put into two tins separately.
The samples as well as all the six tins were separately sealed with the seal of ASI Ram Nath and the seal after use was handed over to Ram Nath ASI. All these articles were taken into possession vide various recovery memos. Ex.PA was attested by ASI Ram Nath and Anokh Singh SI. A formal FIR Ex.PC/1 was got registered on the basis of ruqa Ex.PC. The investigating officer prepared the rough site plan which is Ex.PD. On return to the police station, the investigating officer deposited the case property with seals intact with the MHC Rajinder Singh. After the receipt of report from the Chemical Examiner, Ex.PE and after the completion of the investigation, challan against the accused was put in Court.
3. After going through the report under Section 173 of the Code of Criminal Procedure, the learned Judicial Magistrate, on being prima facie finding a case under Section 9 of the Opium Act, framed the charge against all the accused. Accused Assa Singh pleaded guilty to the charge and was accordingly convicted and sentenced by the trial court. Accused Balbir Singh and Kala Singh did not plead guilty to the charge and claimed trial.
4. The prosecution in order to bring home the guilt of the accused in all examined four witnesses. They are Constable Sukhdev Singh PW-1, ASI Ram Nath PW-2, ASI Rajinder Singh PW-3 and SI Kishore Chand PW-04 and thereafter closed the prosecution evidence.
5. After the evidence of the prosecution was closed, the statements of the accused Balbir Singh and Kala Singh, were recorded as envisaged under Section 313 of the Code of Criminal Procedure in which the entire incriminating 3 Criminal Revision No. 674 of 1990.
evidence appearing against them was put to them, to which they denied and pleaded innocence. Balbir Singh accused pleaded that he has been falsely implicated on account of enmity. He further pleaded that his uncle had committed the murder of father of Sarpanch Hardial Singh and because of that both the accused have been falsely implicated at the instance of Hardial Singh Sarpanch. The accused examined A.C.Harbhajan Singh in their defence.
6. I have heard Shri Manish Prabhakar, learned counsel for the petitioners, Shri Ramandeep Sandhu, Deputy Advocate General, Punjab and have gone through the evidence brought on the record.
7. At the very outset, learned counsel for the petitioners stated that the petitioners do not want to challenge the order of conviction recorded by the learned Judicial Magistrate Ist Class, Patti, and maintained by the learned Additional Sessions Judge, Amritsar. However, on the question of sentence, the learned counsel for the petitioners submitted that out of the sentence awarded by the learned Judicial Magistrate, accused Balbir Singh has already undergone 1 years and 8 months whereas accused Kala Singh has undergone 1 years and 10 months of imprisonment. This revision petition is pending before this Court since 1990 and the sword of sentence continue to remain hanging on the heads of the accused. He, therefore, prayed that the order of sentence for imprisonment for a period of two years passed by the learned Judicial Magistrate be modified to the period already undergone by the accused.
8. The learned Deputy Advocate General, Punjab did not oppose the submission of the learned counsel for the petitioners. Hence, the order of sentence of two years passed by the learned Judicial Magistrate, Patti and affirmed by the learned Additional Sessions Judge, Amritsar, is accordingly modified into the sentence already undergone by the petitioners. However, the sentence of fine imposed by the trial court shall remain intact.
9. The petitioners have not deposited the amount of fine. They are directed to deposit the amount of fine, within a period of 30 days of the receipt of a copy of this order, in the court of Judicial Magistrate, Patti. In case the amount of fine is not deposited within the stipulated period of 30 days, as 4 Criminal Revision No. 674 of 1990.
directed by this Court, the order of sentence passed by the learned Judicial Magistrate Ist Class, Patti shall stand restored and in that event the petitioners would have to undergo the remaining period of their sentence.
August 17, 2006.
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