Balbir Singh and Kala Singh vs The State of Punjab

R.S. Madan, J.—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 u/s 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.

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 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.

After going through the report u/s 173 of the Code of Criminal Procedure, the learned Judicial Magistrate, on being prima facie finding a case

u/s 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.

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.

After the evidence of the prosecution was closed, the statements of the accused Balbir Singh and Kala Singh, were recorded as envisaged u/s

313 of the Code of Criminal Procedure in which the entire incriminating 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.

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.

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.

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.

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 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.