MOHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) APPELLANT Mohan Singh preferred the above criminal appeal against the order of conviction and judgment passed by the learned Additional Sessions Judge, Amritsar, dated 11.7.1995, sentencing the appellant to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,00,000/- and in default thereto to further undergo rigorous imprisonment for two years for an offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act. This Criminal appeal came up for hearing before the Division Bench. Vide order dated 29.8.1997, a Division Bench of this Court formulated a question of law and requested the Chief Justice to constitute Full Bench for its disposal in accordance with law. In our opinion it would be appropriate to refer to the order of reference at the very outset. The order of reference reads as under :-

(2.) THE appellant on 6.10.2003 filed an application under Section 399(1) of Criminal Procedure Code for suspension of execution of sentence and to release him on bail. This application came up before the Full Bench for hearing on 25.2.2004 on which date a suggestion was made from the Bar that it would be in the interest of justice to dispose of the question of law formulated in the criminal appeal itself. Thus, the case was adjourned for hearing of the question referred for answer to the Full Bench in the criminal appeal itself.

(3.) LEARNED counsel appearing for the appellant has contended that the view expressed by the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, 1995(2) Recent Criminal Reports 388 (SC) : 1995(3) S.C.C. 610, is the correct view and has been subsequently reiterated by the Supreme Court and as such the question of law posed before the Full Bench may be answered in favour of the appellant. There is apparent violation of provisions of Section 50 of the Act as according to the prosecution the appellant was carrying the bag on his person and this being a personal search, strict compliance to the provisions of Section 50 of the Act including giving complete offer in terms thereof was mandatory. He further contended that the entire prosecution story suffers from legal and factual infirmities and material contradictions of the nature which not only create a doubt in the case of the prosecution but also show that the prosecution has failed to prove its case beyond any reasonable shadow of doubt and as such the appellant is entitled to acquittal :- a) There is no record produced by the prosecution to show that complete and composite offer as contemplated under Section 50 of the Act was given to the appellant by any memo or otherwise. b) The appellant has been falsely implicated inasmuch as he/his relations had given telegrams to various authorities, Ex.D.1 to Ex.D.4, prior to the date of his arrest, which indicate his false implication in the case. c) The sample was tampered with and was illegally retained by the persons investigating the offence for a considerable period. There is uncertainty as to deposit of the sealed sample in Malkhana, its with-drawal therefrom and submission to the Forensic Science Laboratory, Chandigarh, hereinafter referred to as F.S.L. The dates given by the witnesses completely demolish the case of the prosecution. d) The statement of PW1 SI Dharam Singh is a complete improvement and is in contradiction to Division Bench judgment in relation to ceiling (sealing ?) of the sample as well as its deposit with the Malkhana. Serious contradictions appearing in the statement of this witness read with statements of other witnesses, completely demolish the case of the prosecution. e) Lastly and without prejudice to the above contentions, it is argued that quantum of sentence is unreasonable and requires interference by this Court as there are no grounds for awarding to the appellant the maximum sentence of 15 years.