437 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 17.03.2025 BIRBAL SINGH @ BEERU AND ANR.

....Appellants Versus STATE OF HARYANA ...Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Manpreet Singh, Advocate for the appellants as Legal Aid Counsel.

Mr. Harkesh Kumar, AAG, Haryana.

HARPREET SINGH BRAR, J. (ORAL)

1. This appeal has been preferred against the judgment of conviction and order on quantum of sentence dated 23.01.2007/25.01.2007 passed by learned Addl. Sessions Judge, Sirsa whereby, the appellants were convicted and sentenced for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’), in the case stemming from FIR No.65 dated 16.06.2003 registered at Police Station, Baragudha District Sirsa.

2. The appellants were sentenced as mentioned below:

3. Brief facts of the case are that on 16.06.2003 SI Daya Nand alongwith ASI Sarwan Kumar, HC Om Parkash and other police officials were going towards village Dhabban in Government Jeep No. HR-24D/6107, for patrolling and detection of crime. When they reached near Government High School situated on Dhabban Road, Baragurha, two persons were seen coming from the side of village Dhabban riding on a scooter bearing Registration No.HR-24A/1133. SI conducted the search of the bag which was found to be containing 41 kgs of Poppy straw and the appellant No.2 was apprehended at the spot. After completing all the formalities as prescribed under NDPS Act, the FIR (supra) was registered.

4. Learned Legal Aid counsel for the appellants contends that the seals on the residue parcel were in broken condition. He further contends that the learned Court has not taken into consideration that no independent witness was made to join and only police officials were witnesses of the recovery even though there was a school nearby. Moreover, the mandatory provisions of Section 42, 50 and 57 of NDPS Act were not complied with and the onus was on the prosecution to prove so. Further, there is inconsistency in the statements given by the prosecution’s witnesses and the FSL reports. Furthermore, as per the FSL report, the weight of the returned samples was recorded as 170 grams, whereas the weight of the samples received was 200 grams, which contradicts the weight mentioned in the recovery memo by the prosecution.

5. Per contra learned State counsel opposes the prayer made by the appellants on the ground that the appellants were rightly convicted by the learned trial Court as they had been found in conscious possession of alleged contraband . He produces the custody certificates dated 09.03.2025 in the Court today which are taken on record. Perusal thereof indicates that appellant No.1 - Birbal Singh has undergone actual sentence of 4 months and 8 days and is involved in one more case under the provisions of IPC, however he is on bail and appellant No.2 Baljinder Singh @ Jinder has undergone actual sentence of 5 months and 1 day and is involved in two more cases however in that case he has been released on bail.

6. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that the appellants were convicted for having in possession 41 kg. of poppy straw attracting the offence under Section 15 of NDPS Act, for which no minimum punishment has been prescribed. As per their custody certificates appellant No.1 -Birbal Singh has undergone actual sentence of 4 months and 8 days and appellant No.2 Baljinder Singh @ Jinder has undergone actual sentence of 5 months and 1 day. Since there is no minimum punishment prescribed under Section 1