Raghbir Singh vs State of Haryana

I.S. Tiwana, J. (Oral)

The petitioner has been held guilty under Section 9 of the Opium Act, 1878 for having been found in possession of 500 gms of opium on 10th July, 1981. While rejecting his claim for release under Section 360, Code of Criminal Procedure (for short `the Code'') or the Probation of Offenders Act, 1958, on the ground that he was a previous convict, the trial Court awarded him sentence of six months'' rigorous imprisonment and a fine of Rs. 500/, in default of payment of fine to undergo further rigorous imprisonment for three months. For recording this finding about his previous conviction the Court solely relied upon the averments made in an application filed by the Assistant District Attorney on the very day the judgment was pronounced, that is 21st September, 1987. All that was stated in this application was that the petitioner had been convicted earlier for a similar offence and was directed to pay a sum of Rs. 150/ by way of fine in case FIR No. 399 dated 10th November, 1983. This aspect of the matter has also been upheld by the appellants Court.

It is now contended by Mr. R.S. Cheema, the learned counsel for the petitioner, that the trial Court while holding the petitioner to be a previous convict has given a complete goby to the provisions of section 298 of the Code. He urges with some amount of vehemence that this section, though prescribes a special mode of proof of a previous conviction or acquittal, in addition to the one prescribed under the Evidence Act, yet the provisions of this section have to be strictly complied with before anybody can be held to be a previous convict. I find considerable merit in this stand of the learned counsel. Section 298 of the Code reads as follows :

"Section 298. Previous conviction or acquittal how proved.

In any inquiry, trial or other proceeding under this Code a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force :

(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held to be a copy of the sentence or order, or

(b) In case of a conviction either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted."

It is thus apparent in the light of this section that before a person can be held to be a previous convict, the same has to be proved strictly and in accordance with law. In the absence of compliance of this provision of law, the trial Court was not well advised to record a finding that the petitioner was a previous convict. Further, it goes without saying that when evidence is led to prove the previous conviction of an accused, he has to be afforded an opportunity to rebut the same. Nothing of the sort happened in the instant case.

To combat this stant of Mr. Cheema, all that is urged by Mr. Chauhan, the learned counsel appearing for the State, is that the factum of his previous conviction was never disputed by the petitioner before the trial Court and this is so apparent from the following observation in paragraph 3 of concluding part of the judgment, in question :

"..... ..... .....

,.....The convict has not disputed the conviction as reported by the Public Prosecutor."

It is difficult to appreciate as to in what manner the petitioner was to dispute this fact. This fact was not put to him while recording his statement under Section 313 of the Code. It is very doubtful if it could be so put in the absence of any material on record. Equally doubtful is the proposition that any such admission on the part of the accused can be taken to be a legal substitute for the prescribed mode of proof of his previous conviction. In the instant case, at no stage the petitioner was afforded any opportunity to deny or to dispute this fact. As has been pointed out earlier, it was right on the day the judgment was pronounced that the abovenoted observation was made by the Court on the basis of the application filed by the Public Prosecutor. I am thus of the considered view that in the light of the material on record the petitioner could not be held to be a previous convict. Therefore, his claim for release on probation appears to have been wrongly denied.

At this stage, it is prayed by Mr. Cheema that he does not insist upon the release of the petitioner on probation in view of the timelag that has occurred from the date of the recovery of the opium from him and the sentence of imprisonment he has already suffered. His prayer is that the petitioner be let off with the imprisonment he has already undergone. This prayer does not appear to be unjustified in the light of the abovenoted conclusion of mine and the fact that the petitioner has already undergone more than a month''s rigorous imprisonment. I, therefore, allow this petition to the extent that the sentence of imprisonment awarded to the petitioner is reduced to the one already undergone by him. Sentence of fine too is set aside.