Punjab-Haryana High Court
Gurdeep Singh vs State Of Punjab on 19 March, 2026
CRA-S-3115-SB-2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
433
CRA-S-3115-SB-2011 (O&M)
Decided on: March 19, 2026.
GURDEEP SINGH
...Appellant
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
PRESENT Mr. Jagpal Singh, Advocate, for
Mr. Arshdeep Singh Sivia, Advocate,
for the appellant.
Mr. Aftab Singh Khara, Sr. DAG, Punjab.
VINOD S. BHARDWAJ. J. (ORAL)
The instant appeal has been preferred against the judgment
of conviction and order of sentence dated 08.11.2011 passed by the Judge,
Special Court, Sri Muktsar Sahib, in Sessions Case bearing No.450 dated
25.11.2005/RT No.154 dated 29.11.2006, arising out of FIR bearing
No.185 dated 19.07.2005, under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, registered at Police Station City
Malout, District Sri Muktsar Sahib, whereby the appellant had been
convicted for commission of offence under Section 15 of the NDPS Act,
for having been found in conscious possession of 09 kilograms of poppy
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husk and, sentenced to undergo rigorous imprisonment for a period of six
months and to pay a fine of Rs.2,000/- vide order of even date.
2 Succinctly, the prosecution case is that on 19.07.2005, a
police party headed by ASI Kabal Singh, having other police officials,
namely HC Major Singh and HC Ajmair Singh, etc., on a Govt. vehicle,
i.e. Canter and being driven by Gurdass Ram, was going from Malout
Mandi to village Ratharian via link road in connection with patrol duty
and checking of suspected persons. When the police party went ½
kilometre ahead on the link road from the main G.T. Road, then two
persons, holding two plastic bags on their right shoulders, were spotted by
the police party on foot. When the accused saw the vehicle of the police
party, they put their bags aside on the road and tried to slip away. Out of
the two accused, one fell down on the road and was apprehended by the
I.O. with the help of other police officials. The I.O. inquired about his
whereabouts, and he disclosed his name as Jagsir Singh. Jagsir Singh also
disclosed the identity of the other person (who had absconded) as Gurdeep
Singh, to whom HC Major Singh was already known. Gurdeep Singh
could not be apprehended, and he escaped. The I.O. tried to join
independent witnesses, but no one was available there. The satchel, which
had been thrown away by accused Jagsir Singh, was lying with an open
mouth and out of the same, poppy husk was recovered. Out of the
recovered poppy husk, 250 grams were separated by the I.O. as a sample
and converted into a parcel. On weighing, the remaining poppy husk came
out to be 8 kilograms 750 grams, and it was converted into another parcel.
The second satchel, which was thrown away by appellant Gurdeep Singh,
was lying open, and poppy husk was recovered from the said satchel, out
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of which 250 grams of poppy husk was also separated by the IO as a
sample and converted into a parcel. On weighing, the remaining poppy
husk came out to be 8 kilograms 750 grams, and it was converted into
another parcel. All the parcels were sealed by the I.O. with his seal bearing
the impression KS. Specimen seal chit Ex. P9 was prepared, and the seal
was handed over to HC Major Singh after use. The I.O. then took the case
property into possession vide separate recovery memo Ex. P10, attested
by HC Major Singh and HC Ajmair Singh. Ruqa Ex. P11 was sent to the
police station through C. Gurpal Singh, based on which a formal FIR Ex.
P12 was registered by ASI Baldev Singh. Personal search memo of the
accused, Jagsir Singh, was prepared by the IO, and nothing was recovered
from him. The accused Jagsir Singh was arrested, and the grounds of arrest
were disclosed to him vide memo Ex. P14. Rough site plan Ex.P15 was
prepared by the I.O. at the spot. All the memos were attested by the same
set of witnesses. Statements of the witnesses were recorded. On returning
to the police station, the I.O. produced the accused and the case property
before SHO Baldev Singh, who checked the case property and sealed it
with his seal BS and took the same into his possession vide separate memo
Ex.C-2. On 20.07.2005, SHO Baldev Singh produced the accused Jagsir
Singh along with the case property in the court of Sub Divisional Judicial
Magistrate, Malout, vide police request/application Ex. P3 and inventory
report Ex. P4. The photograph Ex. P2 of the case property was taken, and
Ex. P3 was its negative. The court drew two additional samples, i.e., one
from each of the bulk parcels, and sealed the same along with the bulk
with its seal impression FSD/MLT. The court then passed orders Ex. P5
and then handed over the case property to the SHO, who thereafter
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deposited the same with MHC Jeet Singh, with seals intact. He also sent
a detailed report Ex. P6, to the DSP concerned. Thereafter, the report of
the Chemical Examiner Ex. P8 was received. During the investigation, the
police arrested appellant Gurdeep Singh on 07.11.2005, and the grounds
of his arrest were conveyed to him vide memo Ex. P17. Personal search
memo Ex. P16 of appellant Gurdeep Singh was also prepared by the I.O.,
and nothing was recovered from him. After completion of the
investigation, challan was presented in the court against the accused.
3 On presentation of the challan, copies thereof and other
documents were supplied to the accused, and after finding a prima facie
case for the offence punishable under Section 15 of the N.D.P.S. Act, the
accused were charge sheeted accordingly, to which they pleaded not guilty
and claimed trial. It is not out of place to mention here that after the
framing of the charge, accused Jagsir Singh absented himself as he did not
come present. Ultimately, proclamation proceedings were initiated against
Jagsir Singh, and vide order dated 23.08.2008, the accused Jagsir Singh
was declared a proclaimed offender. The prosecution brought its evidence
to prove the case against appellant Gurdeep Singh.
4 To connect the appellant with the present case, the
prosecution examined PW1 SI/SHO Baldev Singh, PW2 ASI Kabal
Singh, I.O. of the case; PW3 ASI Major Singh, recovery witness; PW4
HC Gurnam Singh and PW5 Jeet Singh, MHC and thereafter, the
prosecution closed its evidence.
5 Thereafter, the statement of the appellant Gurdeep Singh was
recorded under Section 313 Cr.P.C. in which the entire incriminating
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evidence brought on the record was put to him, to which he denied in toto
by pleading false implication and innocence. He pleaded that he was
innocent and that no incriminating article had been recovered from his
possession. He claimed to have been falsely implicated due to a party
faction in the village. No witness was, however, examined by the appellant
in his defence.
6 The parties were heard by the trial Court. After considering
the evidence adduced and the rival submissions advanced, the appellant
was convicted for the commission of offence under Section 15 of the
NDPS Act, 1985 and sentenced as above. Hence, the present appeal.
7 It has been argued by the learned counsel appearing for the
appellant that the appellant has been wrongly convicted in the aforesaid
case and that the trial Court did not appreciate the facts in its entirety,
resulting in an erroneous finding of guilt. The principal contentions raised
on behalf of the appellant are that the case of the prosecution rests solely
on the testimonies of official witnesses, who were interested in the
outcome of the case and that no independent witnesses were joined. It is
further argued that there are material contradictions in the deposition of
the prosecution witnesses examined before the Court, and that the identity
of the appellant was not established. It is further contended that there was
non-compliance of the statutory provisions.
8 State counsel, on the other hand, contends that the trial Court
has considered the entire evidence and that independent witnesses had
been joined. He contends that the trial Court has passed a well-reasoned
and speaking judgment after meticulously appreciating the entire oral as
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well as documentary evidence on record. The findings recorded are based
on cogent, reliable, and trustworthy evidence and do not call for any
interference. The prosecution successfully established that the appellant
was found in conscious possession of 9 kilograms of poppy husk without
any permit or licence. The recovery had been proved through consistent
testimonies of prosecution witnesses, and the same was corroborated by
documentary evidence as well as the report of the Chemical Examiner.
The presumption under Sections 35 and 54 of the NDPS Act was rightly
invoked, and the appellant failed to rebut the same. The contention of the
appellant that the case rests only on official witnesses is wholly
misconceived. It is settled law that the testimony of police officials is as
reliable as that of any independent witness, if found credible.
In the present case, the statements of the official witnesses are consistent,
inspire confidence, and have withstood the test of cross-examination. No
motive for false implication has been alleged or proved.
The learned Trial Court has rightly held that non-joining of independent
witnesses is not fatal, particularly in a case of chance recovery. Efforts
were made by the Investigating Officer to join independent witnesses, but
no one agreed. It is a matter of common experience that public persons are
reluctant to join police proceedings. Therefore, the prosecution case
cannot be doubted on this ground alone. The prosecution has established
the complete chain of custody of the case property. The seals on the
sample parcels remained intact throughout, and the Chemical Examiner’s
report confirms the same. Any minor delay in sending the samples has
been duly explained and has not caused any prejudice to the appellant.
The identity of the appellant has been duly established. The prosecution
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witnesses have categorically deposed that the appellant was known to
them prior to the occurrence, and his name was duly mentioned in the ruqa
and FIR. The mere fact that the appellant had fled from the spot does not
demolish the prosecution case when his identity otherwise stands proved.
The alleged discrepancies pointed out by the appellant are minor in nature
and do not go to the root of the prosecution case. Such minor
inconsistencies are natural and do not affect the core of the prosecution
story. There is no violation of any mandatory provision of law. The
recovery in the present case was from bags and not from the personal
search of the accused; hence, provisions like Section 50 of the NDPS Act
are not attracted. It was specifically noticed by the trial Court that the seal
impressions had been intact during the entire period, and there was no
tampering of the seized material. He contends that all the aspects have
been duly considered and declined by the Court.
9 I have heard the learned counsel appearing for the respective
parties and have gone through the documents appended along with the
present appeal, including the impugned judgment.
10 In so far as the argument about failure to join independent
witnesses is concerned, it is well established that independent witnesses
are often reluctant to join in police proceedings. The same may be for
reason and apprehension of harassment by law enforcement, accused or
by legal compulsions. The said practicality cannot be ignored. Besides,
joining of an independent witness is not a mandatory statutory
requirement, but only a desirable procedural aspect. Failure to associate
independent witness would not impeach the credibility of official
witnesses. The testimony of official witnesses would not be discarded on
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mere expression of apprehension, but has to corroborate a miscarriage of
justice.
11 Law accepts even the list of related and interested witnesses
subject to caution and careful scrutiny. The police officials are performing
their official duties and have no special interest in the case than that of a
prudent witness. There should be no element of disbelief or distrust on
their testimony. The defence is required to bring material on record for
discarding or disbelieving their deposition.
12 A general argument has been raised about contradictions in
the testimony of the witnesses. The counsel has however failed to refer to
any deposition or evidence, with respect to his arguments about
discrepancies. The next aspect is of identification. The counsel has not
referred to any material in deposition to the effect that the accused were
muffled. Thus, their face was seen by the witnesses who appeared to prove
the case. One person was apprehended at the spot while the appellant was
known previously to HC Major Singh, who appeared as PW3. Thus, the
identity of the appellant stood fully established.
13 Additionally, the judgment of the trial court has also been
perused.
14 On consideration of the evidence and the arguments
advanced on behalf of rival parties, the trial Court recorded as under: –
“12. The first contention raised by the counsel for the
accused is, that case of the prosecution rests upon the
testimonies of the official witnesses alone, to which there is
no independent corroboration and the witnesses are
interested in the success of the case, as such their testimonies
cannot be relied upon. Firstly, it is a case of chance recovery.
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Secondly, it is settled proposition of law, there is no hard and
fast rule that independent witness be joined invariably. It is
settled proposition of law that testimonies of the official
witnesses are as good as of independent witnesses.
Statements of the official witness cannot be discarded merely
on the ground of colour of their office. The only analogy,
which is to be kept in mind while relying upon the testimonies
of the official witnesses is that there testimonies are to be
scrutinized with more care and caution. Keeping in view this
analogy in mind, I have scrutinized the testimonies of the
official witnesses with more care and cautiously, which were
subjected to lengthy cross examination, but they could not be
budged on any material aspect of the case of the prosecution.
There is nothing on record to disbelieve the police officials
and that they are truthful and credible. There is no reason for
false implication. Further, I may also take support of case
law titled as Nasib Singh @ Nasiba vs. State of Haryana
2010(1) RCR (Criminal) (P&H), page 360, wherein, it has
been held:
“B. Narcotic Drugs and Psychotropic Substances Act,
1985, Section 20- Independent witness-Appellant
convicted and sentenced for carrying charas without
any permit-Plea that only police officials have
deposed against the appellant and no independent
witnesses joined, therefore, prosecution case is bound
to fail is not correct as testimony of prosecution
witnesses is free from blemish of contradictions,
discrepancies and improvement-Therefore, it is not
necessary that independent witness should have
joined”.
Further, I may also take support of case law titled as Jarnail
Singh vs. State of Punjab, 2011 (1) RCR (Criminal), (SC),
page 925, wherein, it has been held:-
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E. Narcotic Drugs and Psychotropic Substances Act,
1985, Section 18-Independent witness-recovery of was
not contraband at a place which frequently used by
public-head Constable sent adjoining village to bring
member to Panchayat, but of the villagers were not
prepared to join held:-
(1) The reluctance on the part of the villagers is
neither strange nor unbelievable-generally,
people belonging to the same village would into
unnecessarily want to create bad
relations/enmity with any other villager”.
Further, when ASI Kabal Singh has appeared in the witness
box has categorically deposed in his cross examination that
efforts were made to join the independent witness and even
4-5 persons were asked to join the police party, but they
refused to be independent witnesses in this case. His
testimony has also been duly corroborated by ASI Major
Singh PW. So, keeping in view of above discussion and in
view of the citation of law, I do not find any force in the
contention of the learned counsel for the accused and the
same is hereby repelled.
13. Further, it was argued that PW4 HC Gurnam Singh took
the sample to the office of Chemical Examiner and some
objections were raised and regarding this this witness has
mentioned about the said objections in his affidavit
Ex.PW4/A, but the prosecution has not proved on record the
said objections and this makes the case of the prosecution
doubtful. I have heard this contention of the learned counsel
for the accused, but do not find any force in this contention
because HC Gurnam Singh PW4 while appearing in the
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Court has tendered into evidence his affidavit Ex. PW4/A, in
which, he deposed about the fact of taking of the sample from
the MHC and its receipt in the office of Chemical Examiner
was made on 22.08.2005, but some objections were imposed
upon the same. So, said sample carrier returned back with
objections from the office of Chemical Examiner and again
on 29.08.2005, after getting removed the same, he again
visited the office of Chemical Examiner and on 30.08.2005
get deposited the sample of the case. This witness has
categorically deposed that no written objection was made by
the office of Chemical Examiner and this fact has not been
challenged by the accused. Moreover evidence of HC
Gurnam Singh has been corroborated by MHC. Otherwise,
as per report of the Chemical Examiner, the seals were intact
at the time of receipt of the sample in the office of Chemical
Examiner. The only contention of which can be considered is
delay in depositing the sample, which too, has also not
prejudiced the accused because the sample was found to be
intact when reached in the office of Chemical Examiner.
Here, I may take support of the case law titled as State of
Punjab vs. Lakhwinder Singh & Anr. 2010 (2) RCR
(Criminal), (Supreme Court of India), page 582, wherein, it
has been held:
“B. Narcotic Drgus and Psychotropic Substances Act,
1985, Section 15-Appeal against acquittal-Recovery
of contraband-Delayed sample-Effect-Recovery of 35
bags of poppy husk from accused persons-Samples of
contraband from each bag separated- of seven days in
sending the samples to Forensic Science Laboratory-
Report of Chemical Examiner established that seal of
sample found intact at the time of examination-Mere
observation by the High Court that the case property
might have been tampered with, cannot take the place
of proof-Held, not fatal-Sufficient and cogent grounds
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to set aside order of acquittal-Order of trial Court
Sentencing 12 years RI restored.”
So, in view of my above discussion and citations of law the
contention raised by the learned counsel for the accused has
no weightage and the same is repelled.
14. Lastly, it was argued by the learned counsel for the
accused that identity of Gurdeep Singh has not been proved
by the prosecution in this case because as per prosecution
version, accused Gurdip Singh fled away from the spot and
there is no cogent evidence to prove the identity of accused
Gurdip Singh or connect him with the present. I have heard
this argument of the learned counsel for the accused, but do
not find any weight in this arguments because in this case,
ASI Kabal Singh has categorically deposed that HC Major
was already knew to Gurdip Singh. This fact has also been
corroborated by HC Major Singh. Even the name of accused
Gurdip Singh has been categorically mentioned in the ruqa
Ex. P11 and FIR Ex. P12. Here reliance can placed upon the
case law titled as Jagga Singh vs. State of Haryana 2010 (3)
RCR, (P&H), page 756, wherein it has been held:
“A. Narcotic Drugs and Psychotropic Substance Act,
1985 Section 15-Evidence Act, 1872, Section 9
recovery-Test identification parade-Recovery of 8
bags, each containing 35 kgs poppy husk five from
maruti car and three bags from cycles-Names and
Parentage of all accused except one correctly
described in ruqa-Remaining accused rightly
described as handicapped-Deposition of both official
witnesses as to identification of accused consistent-
Held, absence of identification parade, not fatal to the
prosecution-conviction upheld”.
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Furthermore, there is no plea of the accused that the police
officials were having any personal grudge or enmity against
him. So, in view of my above discussion as well as citations
of law, the contention raised by the learned counsel for the
accused has no force and the same is hereby repelled.”
15 It is thus evident that the trial Court has considered all the
aspects including that of examination of independent witnesses and
observed that it is a case of chance recovery, and further that there is no
hard and fast rule that independent witnesses have to be joined invariably.
Testimonies of official witnesses will hold as good as independent
witnesses and to be not discarded on the ground of their official position
in case the same are found to be cogent, convincing and trustworthy. It
has been specifically recorded that prosecution witnesses could not be
shaken on any material aspect; despite lengthy cross-examination as such,
their truthfulness cannot be doubted. Further, regarding the objection
raised by the chemical examiner and resultant delay in sending the sample,
it has been specifically observed that the alleged delay has not prejudiced
the appellant in any manner because the sample was found intact when it
reached the office of the chemical examiner, as is evident from the
testimony of PW.4 HC Gurnam Singh. So far as the argument regarding
identity of the appellant not being established (because as per the
prosecution, the appellant had fled away from the spot), is concerned, it
has been noticed by the trial Court that ASI Kabal Singh categorically
deposed that the appellant was already known to HC Major Singh and
name of the appellant further finds mention in the ruqa EX. P11 and FIR
proved as EX. P12.
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16 Hence, counsel for the appellant has not been able to point
out any legal infirmity in the conclusions drawn or convince this Court to
interfere with the same. It is further evident that even the trial Court has
considered all the arguments raised by the appellant and thereafter, the
evidence has been appreciated in the right perspective. The judgment of
conviction dated 08.11.2011, passed by the Judge, Special Court, Sri
Muktsar Sahib, in Sessions Case bearing No.450 dated 25.11.2005/RT
No.154 dated 29.11.2006, thus cannot be interfered with. The appeal thus
deserves to be dismissed on its challenge to the conviction part.
17 Adverting to the question of quantum of sentence, counsel
for the appellant contends that the appellant deserves the benefit of
reconsideration of the sentence that has been awarded by the trial Court.
He contends that out of the total sentence of 6 months awarded to the
appellant, as per the custody certificate dated 19.03.2026, the appellant
had already undergone a sentence of 3 months and 27 days, i.e. more than
half of the sentence awarded by the trial Court. It is submitted that the
recovery was non-commercial and that the incident took place in the year
2005. A period of nearly 21 years has elapsed since then. The appellant
has faced the agony of a protracted criminal trial for a long time. He
further contends that, as per the custody certificate produced by the State,
the appellant has not indulged in any other criminal offence and hence, he
has integrated into society.
PARAMETERS AND PRINCIPLES OF SENTENCING:
18 The Hon’ble Supreme Court has laid down certain principles
to govern the Courts in the matter of sentencing. Reference in this regard
may be made to the judgment of the Hon’ble Supreme Court in the matter
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of State of Punjab Vs. Prem Sagar & Ors (2008) 7 SCC 550. The relevant
extract of the said judgment is reproduced hereinbelow: –
5. ‘Whether the Court while awarding a sentence
would take recourse to the principle of deterrence or
reform or invoke the doctrine of proportionality, would
no doubt depend upon the facts and circumstances of
each case. While doing so, however, the nature of the
offence said to have been committed by the appellant
plays an important role. The offences which affect
public health must be dealt with severely. For the said
purpose, the courts must notice the object for enacting
Article 47 of the Constitution of India.
6. There are certain offences which touch our social
fabric. We must remind ourselves that even while
introducing the doctrine of plea bargaining in the
Code of Criminal Procedure, certain types of offences
had been kept out of the purview thereof. While
imposing sentences, the said principles should be
borne in mind.
7. A sentence is a judgment on conviction of a crime.
It is resorted to after a person is convicted of the
offence. It is the ultimate goal of any justice-delivery
system. Parliament, however, in providing for a
hearing on sentence, as would appear from sub-
section (2) of Section 235, sub-section (2) of Section
248, Section 325 as also Sections 360 and 361 of the
Code of Criminal Procedure, has laid down certain
principles. The said provisions lay down the principle
that the court in awarding the sentence must take into
consideration a large number of relevant factors;
sociological backdrop of the appellant being one of
them.
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8. Although a wide discretion has been conferred upon
the court, the same must be exercised judiciously. It
would depend upon the circumstances in which the
crime has been committed and his mental state. Age of
the appellant is also relevant.
9. What would be the effect of the sentencing on the
society is a question which has been left unanswered
by the legislature. The Superior Courts have come
across a large number of cases which go to show
anomalies as regards the policy of sentencing.
Whereas the quantum of punishment for commission of
a similar type of offence varies from minimum to
maximum, even where same sentence is imposed, the
principles applied are found to be different. Similar
discrepancies have been noticed in regard to
imposition of fine.
10. In Dhananjoy Chatterjee Alias Dhana v. State of
W.B. [(1994) 2 SCC 220], this Court held:
“15…Imposition of appropriate punishment is the
manner in which the courts respond to the society’s cry
for justice against the criminals. Justice demands that
courts should impose punishment befitting the crime so
that the courts reflect public abhorrence of the
crime…”
11. Gentela Vijayavardhan Rao and Another v. State
of A.P. [(1996) 6 SCC 241], following Dhananjoy
Chatterjee (supra), states the principles of deterrence
and retribution but the same cannot be categorized as
right or wrong. So much depends upon the belief of the
judges.
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12. In a recent decision in Shailesh Jasvantbhai and
Another v. State of Gujarat and Others [(2006) 2 SCC
359], this Court opined:
“7. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons
and property of the people is an essential function of
the State. It could be achieved through instrumentality
of criminal law. Undoubtedly, there is a cross-cultural
conflict where living law must find answer to the new
challenges and the courts are required to mould the
sentencing system to meet the challenges. The
contagion of lawlessness would undermine social
order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of
law which must be achieved by imposing appropriate
sentence. Therefore, law as a cornerstone of the edifice
of ‘order’ should meet the challenges confronting the
society. Friedman in his Law in Changing Society
stated that: “State of criminal law continues to be–as
it should be–a decisive reflection of social
consciousness of society.” Therefore, in operating the
sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. By
deft modulation, sentencing process be stern where it
should be, and tempered with mercy where it warrants
to be. The facts and given circumstances in each case,
the nature of the crime, the manner in which it was
planned and committed, the motive for commission of
the crime, the conduct of the appellant, the nature of
weapons used and all other attending circumstances
are relevant facts which would enter into the area of
consideration.
Relying upon the decision of this Court in Sevaka
Perumal v. State of T.N. [(1991) 3 SCC 471], this17 of 22
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CRA-S-3115-SB-2011 (O&M) -18-Court furthermore held that it was the duty of every
court to award proper sentence having regard to the
nature of the offence and the manner in which it was
executed or committed etc.
xxx
18. Don M. Gottfredson in his essay on “Sentencing
Guidelines” in “Sentencing by Hyman Gross and
Andrew von Hirsch” opines:
“It is a common claim in the literature of criminal
justice and indeed in the popular press that there is
considerable “disparity” in sentencing. The word
“disparity” has become a prerogative and the concept
of “sentencing disparity” now carries with it the
connotation of biased or insidious practices on the
part of the judges. This is unfortunate in that much
otherwise valid criticism has failed to separate
justified variation from the unjustified variation
referred to as disparity. The phrase “unwarranted
disparity” may be preferred; not all sentencing
variation should be considered unwarranted or
disparate. Much of it properly reflects varying degrees
of seriousness in the offense and/or varying
characteristics of the offender. Dispositional variation
that is based upon permissible, rationally relevant and
understandably distinctive characteristics of the
offender and of the offense may be wholly justified,
beneficial and proper, so long as the variable qualities
are carefully monitored for consistency and
desirability over time. Moreover, since no two offenses
or offenders are identical, the labeling of variation as
disparity necessarily involves a value judgment- that
is, disparity to one person may be simply justified
variation to another. It is only when such variation
takes the form of differing sentences for similar18 of 22
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CRA-S-3115-SB-2011 (O&M) -19-offenders committing similar offenses that it can be
considered disparate.”
[Emphasis supplied]
The learned author further opines:
“In many jurisdictions, judicial discretion is nearly
unlimited as to whether or not to incarcerate an
individual; and bound only by statutory maxima,
leaving a broad range of discretion, as to the length of
sentence.”
19. Kevin R. Reitz in Encyclopedia of Crime and
Justice, Second edition “Sentencing guidelines” states:
“All guideline jurisdictions have found it necessary to
create rules that identify the factual issues at
sentencing that must be resolved under the guidelines,
those that are potentially relevant to a sentencing
decision, and those viewed as forbidden
considerations that may not be taken into account by
sentencing courts. One heated controversy, addressed
differently across jurisdictions, is whether the
guideline sentence should be based exclusively on
crimes for which offenders have been convicted
(“conviction offenses”), or whether a guideline
sentence should also reflect additional alleged
criminal conduct for which formal convictions have
not been obtained (“non-conviction offenses”).
Another difficult issue of fact-finding at sentence for
guideline designers has been the degree to which trial
judges should be permitted to consider the personal
characteristics of offenders as mitigating factors when
imposing sentence. For example: Is the defendant a
single parent with young children at home? Is the
defendant a drug addict but a good candidate for drug
treatment? Has the defendant struggled to overcome19 of 22
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CRA-S-3115-SB-2011 (O&M) -20-conditions of economic, social or educational
deprivation prior to the offense? Was the defendant’s
criminal behavior explicable in part by youth,
inexperience, or an unformed ability to resist peer
pressure? Most guideline states, once again including
all jurisdictions with voluntary guidelines, allow trial
courts latitude to sentence outside of the guideline
ranges based on the Judge’s assessment of such
offender characteristics. Some states, fearing that race
or class disparities might be exacerbated by unguided
consideration of such factors, have placed limits on the
list of eligible concerns. (However, such factors may
indirectly affect the sentence, since judges are
permitted to base departures on the offender’s
particular ‘amenability’ to probation (Frase, 1997).)”
20. Andrew von Hirsch and Nils Jareborg have divided
the process of determining sentence into stages of
determining proportionality while determining a
sentence, namely:
1. What interests are violated or threatened by the
standard case of the crime- physical integrity,
material support and amenity, freedom from
humiliation, privacy and autonomy.
2. Effect of violating those interests on the living
standards of a typical victim- minimum well-being,
adequate well-being, significant enhancement
3. Culpability of the offender
4. Remoteness of the actual harm as seen by a
reasonable man.’20 of 22
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CRA-S-3115-SB-2011 (O&M) -21-
CONCLUSION
19 Keeping the aforesaid principles in mind, it is evident that
the offence in question is not in the nature as would be dangerous to
national integrity or shocking to the public conscience.
20 The object of punishment is not only to punish but also to
rehabilitate the offenders in society. Where an appellant reflects a strong
possibility of improvement and reformative behaviour, the process of law
should come to the aid of such an appellant so as to ensure his
reintegration into society.
21 I find that the prolonged incarceration, the protracted
criminal trial and the consequent agony faced by the appellant, the actual
sentence out of total sentence already undergone by the appellant, the
reformative tendency shown by the appellant by not indulging in any other
offence, the age of the appellant at the time of the incident as well as the
legal principles reproduced above, are sufficient mitigating
circumstances.
22 Consequently, finding no illegality, impropriety, perversity
or failure to appreciate the evidence in its true perspective, or any
reference to the material that the conclusions drawn by the trial Court are
not borne out of the evidence adduced, the judgment of conviction dated
08.11.2011 passed by the Judge, Special Court, Sri Muktsar Sahib, is
affirmed. However, the order of sentence dated 08.11.2011 is modified,
and the sentence awarded to the appellant is reduced to the period already
undergone by him.
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CRA-S-3115-SB-2011 (O&M) -22-
23 The present petition is accordingly partly allowed.
March 19, 2026. (VINOD S. BHARDWAJ)
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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