Karnail Singh vs State Of Punjab
2024 Latest Caselaw 10123 P&H

Punjab-Haryana High Court

Karnail Singh vs State Of Punjab on 10 May, 2024

Author: Kirti Singh

Bench: Kirti Singh

                                 Neutral Citation No:=2024:PHHC:065902
                                                           2024:PHHC:065902
CRA-S-2470-SB-2006 (O&M)                                            - 1-


      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH
102+727

                                         CRA-S-2470-SB-2006 (O&M)
                                         Date of Decision: 10.05.2024
Karnail Singh
                                                                 ...Appellant
                                 Versus
State of Punjab
                                                                ...Respondent
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH

Present:-.   Mr. Rakesh Kumar, Advocate and
             Mr. Tushar Sharma, Advocate for the appellant.

             Mr. Aftab Singh Khara, Sr. DAG, Punjab.
                  *****

KIRTI SINGH, J.

CRM-17867-2024

The application is allowed as prayed for.

Medical record is taken on record.

MAIN CASE

Instant appeal has been directed against the judgment of

conviction dated 10.11.2006 and order of sentence dated 13.11.2006

passed by Special Judge (under The Narcotic Drugs and Psychotropic

Substances Act, 1985) (hereinafter referred to as 'NDPS Act') Jalandhar,

whereby the appellant-accused had been held guilty for commission of

offence punishable under Section 15 of NDPS Act and sentenced to

undergo rigorous imprisonment for a period of 04 years and to pay fine of

Rs.10,000/- with default stipulation.

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Factual Matrix

2. In brief, the story of the prosecution is that on 25.05.2003,

ASI Vijay Kumar along with other police officials was present in the area

of village Jakkopur Kalan when he saw accused coming on the scooter

who was carrying one gunny bag. He informed the accused that he was

under suspicion that the accused was in possession of some intoxicant and

his search was to be carried out, whether he wanted his search by a

Gazetted Officer or by a Magistrate. The accused opted his search before

a Gazetted Officer and memo in this respect was recorded. Thereafter,

DSP Gurmail Singh arrived at the spot and apprised the accused regarding

his legal right of search before him, any other Gazetted Officer or

Magistrate but the accused reposed confidence in him and his consent

memo was prepared. On conducting the search of gunny bag poppy husk

was recovered and out of the said bag, two samples of 250 grams each

were taken out and were prepared into parcels and the remaining contents

of the gunny bag were found to be of 50 kgs. including the weight of jute

bag. Hence, the total recovery comes out to be 50 kgs 500 grams

including the weight of jute bag and after deducting the weight of empty

jute bag, the recovery comes to be 49 kg 500 grams as normally the

weight of gunny bag is 1 kg. Both the sample parcels and the gunny bag

were sealed with the seal bearing letters VK and with seal of DSP bearing

letters GS and sample seals were also prepared. The ruqa was sent to the

police station on the basis of which formal FIR was recorded. On the next

day, the accused along with the case property was produced before the

Illaqa Magistrate. On completion of investigation and on receipt of report

of Chemical Examiner, challan against the accused was presented in the

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Court and copies of documents were supplied to the accused in

compliance of Section 207 Cr.P.C.

3. From the perusal of the documents and after going through

the report under Section 173 Cr.P.C., a prima facie case punishable under

Section 15 of the NDPS Act was made out against the accused and charge

was framed accordingly which was read over to him to which he pleaded

not guilty and claimed trial.

4. In order to prove its case, the prosecution examined PW1

ASI Vijay Kumar, PW2 SI Davinderjit, PW3 C. Raunki Ram, PW4 C.

Narinder Singh, PW5 HC Prithipal Singh, PW6 DSP Gurmail Singh and

PW7 HC Harjinder Singh.

5. After the conclusion of the prosecution evidence, the

statement of the accused was recorded under Section 313 Cr.P.C. during

which he was confronted with the circumstances outlined in the

prosecution evidence to which he denied, asserting his innocence. He

claimed that a fabricated case had been registered against him by Savinder

Singh due to their strained relationship stemming from the lack of support

from the accused towards him in the Samiti elections. On 25.05.2003 at

8:00 a.m. the police in the presence of Lakhbir Singh son of Piara Singh, a

member of Panchayat Pipli, took him from his residence along with his

scooter and implicated him in the case.

Submissions by learned counsel for the parties

6. During the course of arguments learned counsel for the

appellant has submitted that although, he does not wish to challenge the

conviction of the appellant under Section 15 of the NDPS Act but he

would be satisfied in case a lenient view is taken with respect to the

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sentence which has been awarded to the appellant. In this regard, he has

submitted that the FIR in the present case is of the year 2003 and thus, the

appellant has suffered agony of trial/bail/appeal for all these years and the

appellant was granted the concession of bail and he has never misused

that concession. It is further submitted that the appellant is about 68 years

old. He is suffering from various chronic diseases including renal failure

and no purpose will be served by sending him behind bars after about 18

years. He has already mended his way of life and joined the mainstream

of society. The appellant has already undergone 10 months and 23 days

of actual custody out of sentence of 04 years awarded to him. Therefore,

he prayed that the appeal be partly allowed and the sentence awarded to

the appellant be reduced to the period already undergone.

7. Learned counsel for the State has stated that the judgment of

the learned trial Court below has been passed after considering the entire

evidence and material on record. The other factual aspects have not been

rebutted by the learned counsel for the State. He has also produced on

record the custody certificate of the appellant, which is taken on record, as

per which, the period of custody as stated by the learned counsel for the

appellant, is reiterated.

Analysis

8. After having heard learned counsel for the parties and

perusing the paper book, this Court finds substance in the submissions

made on behalf of the appellant regarding reduction of sentence.

9. On perusal of judgment passed by learned trial Court, this

Court is of the considered view that the Trial Court has not committed any

error in appreciation of evidence available on record. Further, it is found

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that the Trial Court considered the evidence available on record and

correctly found that the case of the prosecution is well supported by the

witnesses and documentary evidence. The procedure was well followed

by the prosecution and the witnesses have profoundly supported its case.

The Trial Court has well considered the material available on record,

hence no infirmity is found in the impugned order of conviction passed by

the Trial Court, accordingly the same is upheld.

10. So far as the sentence is concerned, the matter is related to

the incident happened on 25.05.2003 about 21 years ago. Since no

minimum sentence is provided under the provision, the request of

reducing sentence seems to be proper. The sentence of 04 years awarded

by the trial Court can be reduced to already undergone i.e. 10 months and

23 days due to the following reasons:

(i) Appellant is now about 68 years old, and facing the

agony of protracted trial for about 21 years.

(ii) As per custody certificate, the appellant was

granted bail by this Court on 11.12.2006, however,

he did not misuse the concession of same.

(iii) The appellant has mended his way of life and

joined the mainstream of the society.

(iv) The appellant is suffering from complicated renal

failure.

11. The Hon'ble Supreme Court in case titled as "Umrao Singh

v. State of Haryana, 1981 AIR (SC) 1723," observed as under:-

"After hearing counsel for the parties, we are satisfied that this is a case falling under the proviso of Section 16(1)(a)(i) and therefore, for adequate and special

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reasons, the sentence lower than the minimum prescribed could be awarded. The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/ petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents.

2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith.

12. In the judgment of Balvinder Singh v. State of Haryana

2012 (2) RCR (Criminal) 458, this court has held that when the

contraband recovered from the accused does not fall within the definition

of commercial quantity and the ends of justice would be best met if the

substantive sentence of imprisonment be reduced to that already

undergone by him.

Conclusion

13. Considering the case of accused, the mitigating

circumstances as discussed above and in view of legal proposition settled

by Hon'ble Supreme Court, the appeal is partly allowed. The impugned

judgment of conviction dated 10.11.2006 is upheld, however, order of

sentence dated 13.11.2006 is hereby modified and the sentence of the

appellant is reduced to the period already undergone i.e. 10 months and 23

days and the fine as imposed by learned Trial Court is enhanced from

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Rs.10,000/- to Rs.20,000/- and the same shall be paid within 02 months

from the date of this judgment. The bail bonds of appellant-accused stand

discharged.

14. Pending miscellaneous application(s), if any, shall also stand

disposed of.

15. The case property if any may be dealt with as per rules after

expiry of period of limitation for filing the appeal(s). Record of the case

be sent back to the Court below.

                                                 (KIRTI SINGH)
                                                    JUDGE

10.05.2024
Ramandeep Singh

      Whether speaking/reasoned                                Yes/No
      Whether reportable                                       Yes/No




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