Darshan Kumar vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—By this common order, both the appeals viz. Criminal Appeal No. 2144-SB of 2005, preferred by Darshan Kumar and Criminal Appeal No. 31-SB of 2006, preferred by Tarsem Singh, shall be decided together.

Appellants Darshan Kumar and Tarsem Singh were tried by the Court of Additional Sessions Judge, Sirsa, in case FIR No. 61 dated 20.3.2002, registered at Police Station Sadar, Sirsa, u/s 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act").

The Court of Additional Sessions Judge, Sirsa, vide its judgment dated 12.11.2005, held both the Appellants guilty for the offence u/s 15 of the Act and vide a separate order dated 16.11.2005, sentenced them to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs. 50,000 each, in default whereof to further undergo rigorous imprisonment for a period of one year each.

In the appeals, both the Appellants have assailed their conviction and sentence. The charge framed against them, on 26.10.2002, stated that on 20.3.2002, in the area of Dhani Kirpal Singh, District Sirsa, they were found in possession of 40 Kgs. of poppy straw contained in two gunny bags. According to learned Counsel for the Appellants, each Appellant has been held guilty as 20 Kgs. each of poppy husk was recovered from them. Before the submissions, made by learned Counsel for the Appellants are appreciated, it will be necessary to take notice of the brief facts.

The criminal proceedings were set into motion against both the Appellants on the basis of a ruqa Ex.PB, which led to the registration of formal FIR Ex.PB/1. In the ruqa, it is stated that on 20.3.2002, PW.6 Maan Singh, Assistant Sub Inspector, along with his companion police officials, was present near Gurudwara situated on the road leading from Sirsa to Rania, in the area of Dhani Kirpal Singh. They were holding a naka there. While he was engaged in conversation with Karnail Singh son of Gurbax Singh, one Maruti Car bearing registration No. DL-3-CG-5517 was stopped, which was coming from the side of Rania. A signal was flashed by the Investigating Officer to stop the car. The car was stopped. It was being driven by Darshan Kumar and Appellant Tarsem Singh was sitting by the side of driver. Two plastic bags, tied with jute tags, were lying on the back seat of the car. On suspicion, a notice u/s 50 of the Act was served upon both the Appellants. They were apprised of their right to get themselves searched from a Gazetted Officer or a Magistrate. Appellant Darshan Singh had reposed trust in the Investigating Officer and a consent memo to this effect was prepared. Similarly, Appellant Tarsem Singh had also reposed trust in the Investigating Officer. On search of the gunny bags, poppy straw was found therein. Two samples of 100 grams each from both the bags were taken. The remaining poppy straw was found to be 19 Kgs. 800 grams each. The case property and both the accused were taken to the Police Station. The Investigating Officer has prepared a site plan. The Appellants were arrested. Appellant Darshan Kumar had also produced registration certificate of the car as Ex.P8 and his driving licence as Ex.P9.

The above said facts have been reiterated by Maan Singh, Assistant Sub Inspector, while appearing as PW.6. His testimony was duly corroborated by PW.5 Sudhir Kumar, Head Constable, who was a member of the police party and had attested the memos regarding search, seizure and recovery. The prosecution has also examined PW.1 Raja Ram, Assistant Sub Inspector, who, at the relevant time, was working as Moharrir Head Constable, tendered into evidence his affidavit Ex.PA, to prove link evidence. Dalbir Singh, Constable, who had carried the samples to Forensic Science Laboratory, Madhuban, appeared as PW.4 and tendered into evidence his affidavit Ex.PD to prove link evidence. PW.2 Chet Ram, Inspector, stated that on 20.3.2002, PW.6 Maan Singh, Assistant Sub Inspector, had produced before him the case property, samples and the accused. PW.3 Hawa Singh, Sub Inspector, had prepared the report u/s 173 Code of Criminal Procedure.

Thereafter, the statement of accused u/s 313 Code of Criminal Procedure, were recorded. All the incriminating circumstances were put to them. They denied the same and pleaded innocence. However, no witness was examined in their defence.

Mr. B.D. Sharma, Advocate, appearing for Appellant Darshan Kumar and Mr. P.P.S. Duggal, Advocate, appearing for Appellant Tarsem Singh, have submitted that they will not be able to advance any material argument to dislodge the testimonies of PW.6 Maan Singh, Assistant Sub Inspector, and PW.5 Sudhir Kumar, Head Constable. They have further submitted that their only argument is that these two witnesses should not be believed as the prosecution has not examined any independent witness. They have further submitted that there are material discrepancies, contradictions and improvements in the testimonies of these two witnesses. Lastly, learned Counsel for the Appellants have contended that the occurrence, in the present case, pertains to the year 2002 and the Appellants are already in the corridors of the Court for the last six years, therefore, sufferance of the protracted trial should be construed as a mitigating circumstance. It is urged that individually recovery from each Appellant shall come to 20 Kgs. of poppy husk. Recovery of 40 Kgs. of poppy husk constitutes a non commercial quantity. For this recovery, two Appellants have been held guilty by the trial Court and were sentenced to undergo six years rigorous imprisonment, which seems to be excessive. Furthermore, the fact of sufferance of mental pain and agony of protracted trial, can be considered as a mitigating circumstance.

Taking totality of circumstance into consideration, this Court is of the view that if both the Appellants are awarded two years rigorous imprisonment, it will serve the purpose.

Accordingly, the sentence of six years rigorous imprisonment, awarded upon both the Appellants, is reduced to that of two years. However, sentence of fine and default clause shall remain intact.

With the modifications in the sentence, awarded upon the Appellant, the present appeals are dismissed.