CRM No. 11060 of 2015
1. Criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of applicant-appellant No.1.
2. Mr. Bhal Singh Malik, Advocate appearing for the applicant-appellant No.1 submits that the present criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of applicant-appellant No.1 Balli Singh and the same is treated as Balli Singh. However, it has inadvertently been prayed for suspending the sentence awarded to applicant-appellant. It is also submitted that this is the 4th application filed by applicant-appellant No.1 Balli Singh seeking suspension of his sentence of imprisonment.
3. Learned State counsel has filed affidavit of Sh. Rajan Kapur, PPS, Deputy Superintendent, Central Jail, Patiala, mentioning the period of imprisonment undergone by applicant-appellant No.1 Balli Singh. The same is taken on record.
4. Heard learned counsel for the parties.
5. The criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of applicant-appellant No.1 Balli Singh, during pendency of the appeal.
6. SI Bikramjit Singh was posted as SHO, Police Station City Rajpura on 1.8.2008. On the said day, he along with ASI Gurmeet Singh and other police officials on a Government vehicle had set up a check post near Damanheri railway crossing on the Patiala-Sirhind bypass, Rajpura. SI Bikramjit Singh was checking one Kuldeep Singh at about 09.00 am who had come on a motorcycle. In the meantime, a cherry coloured Qualis vehicle bearing Registration No.HR-55A-2828 came from Patiala side. On suspicion, the vehicle was stopped. The driver of the said Qualis vehicle disclosed his name as Rajesh Kumar. Balli Singh (applicant-appellant No.1) was sitting on the front seat adjacent to the driver's seat of the said Qualis vehicle. Puran Singh (appellant No.2) was sitting on the rear seat of the said Qualis vehicle and two persons were sitting along with Puran Singh. The names of the said two persons are mentioned as Bikramjit Singh and the other was perhaps Gurdeep Singh. The police official had a doubt that Balli Singh (applicant-appellant No.1) and Puran Singh (appellant No.2) were carrying contraband in their possession. He disclosed his identity to the accused Balli Singh (applicant-appellant No.1) as Sub Inspector, Police Station City Rajpura and that he suspected that he was carrying contraband in his possession and therefore, a search was to be conducted. Applicant-appellant No.1 was also apprised about his right to get the search conducted in the presence of some Executive Magistrate or any Gazetted officer. Balli Singh (applicant-appellant No.1) opted for his search in the presence of some Executive Magistrate. The dissent statement Ex.PG of Balli Singh (applicant-appellant No.1) was prepared which was signed by him and attested by ASI Gurmit Singh and Kuldeep Singh. The police official then disclosed his own identity to accused Puran Singh (appellant No.2) as Sub Inspector, Police Station City Rajpura. He suspected that Puran Singh (appellant No.2) was carrying contraband in his possession and as such, his search was to be conducted. Puran Singh (appellant No.2) was also apprised of his right to get the search conducted in the presence of some Executive Magistrate or any Gazetted Officer. Puran Singh (appellant No.2) opted for his search to be conducted in the presence of some Executive Magistrate. The dissent statement Ex.PH of Puran Singh was recorded which was signed by Puran Singh and attested by ASI Gurmit Singh and Kuldeep Singh.
7. The police official then asked Sh. Kuldeep Singh, Tehsildar Rajpura to come at the spot. Sh. Kuldeep Singh, Tehsildar on the request of the IO came at the spot. He disclosed his identity to Balli Singh (applicant-appellant No.1) stating that he was posted as Tehsildar, Rajpura and was working as Executive Magistrate. He suspected some contraband in his possession and as such wanted that his search be conducted. The applicant-appellant No.1 reposed confidence in the Tehsildar. His consent statement Ex.PC was recorded which was signed by Balli Singh (applicant-appellant No.1) and attested by Sh. Kuldeep Singh, Tehsildar, Rajpura, Kuldeep Singh and ASI Gurmit Singh. Thereafter, the police officials on the directions of Sh. Kuldeep Singh, Tehsildar-cum-Executive Magistrate, conducted the search of Balli Singh and found one plastic bag from his left waist pocket ('dub'), which was recovered. On checking the same, it was found to contain heroin. Two samples of 10 gms each were taken and the remaining contraband of 480 gms was retained. Both the samples of heroin were separately put in two separate parcels and the remaining bulk was put in a different plastic container which was also converted into a parcel. All these were sealed by the IO with his seal bearing impression 'BS'. These were also sealed by Sh. Kuldeep Singh, Tehsildar with his seal bearing impression 'KS'. From further search, a .22-bore revolver with eight live cartridges i.e. six cartridges in the revolver with two live cartridges in the plastic cover were also recovered from the right waist ('dub') pocket of applicant-appellant. Similar search of Puran Singh (appellant No.2) was carried out. The learned trial Court, after considering the evidence and material on record, has convicted the applicant-appellant No.1 for the offence under Section 21 NDPS Act and sentenced him to undergo rigorous imprisonment for 11 years, besides, pay a fine of Rs. 1.5 Lacs and in default thereof, to undergo further rigorous imprisonment for a period of one year.
8. In terms of affidavit of Sh. Rajan Kapur, PPS, Deputy Superintendent, Central Jail, Patiala that has been filed, the applicant-appellant No.1 has undergone actual imprisonment of six years and two days as on 04.05.2015. This includes imprisonment of four years and ten days after conviction. He has remained on 9 months' parole. On one occasion, he was granted parole on 31.01.2012 and he was due to surrender in jail on 15.02.2012. However he surrendered himself on 19.02.2012 i.e. after four days.
9. According to the learned counsel for the applicant-appellant No.1, the said period has been condoned and thereafter, applicant-appellant No.1 has again been granted parole. There are no other cases pending against him and he has been acquitted in 3 cases and acquitted in one case under Section 138 of the Negotiable Instruments Act on the basis of compromise. Besides, he has been discharged in one case. He is not involved in any other case of NDPS Act. The case would require consideration at the time of final hearing of the appeal. The applicant-appellant No.1 has undergone more than half the sentence of imprisonment that has been imposed. The appeal is not likely to mature for hearing in the near future.
10. Keeping in view the period of imprisonment undergone by the applicant-appellant No.1, the fact that he is not involved in any other case under the NDPS Act, besides, the fact that he has not misused the concession of parole when granted, in the facts and circumstances it would be just and expedient to suspend his sentence of imprisonment, during pendency of the appeal.
11. Accordingly, the criminal miscellaneous application is allowed and the sentence of imprisonment of Balli Singh (applicant-appellant No.1) shall, during pendency of the appeal, remain suspended subject to his furnishing personal bond and two sureties to the satisfaction of the learned Chief Judicial Magistrate, Patiala.
12. The applicant-appellant No.1 Balli Singh shall also file his undertaking along with one surety that while on bail, he shall not misuse the concession and shall not involve in any criminal activity.