KASHMIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner was convicted under Section 61(1)(a) of the Punjab Excise Act, 1914 for having been found in possession of 100 bottles of illicit liquor. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for 15 days. This conviction and sentence awarded by the learned Judicial Magistrate Ist Class, Ferozepur, was maintained by the Additional Sessions Judge, Ferozepur, in appeal by the petitioner.

(2.) A police party headed by PW-2 ASI Sucha Singh was allegedly present in the area of village Bahdurke and they intercepted the petitioner while he was carrying a tube on the carrier on his bicycle Exhibit P2. On search, the tube was found to be containing illicit liquor worth 100 bottles. A quarter bottle was taken out as sample. Ruqa Exhibit PB was despatched, on the basis of which formal FIR Exhibit PB/1 was recorded. The sample and the remaining liquor claimed to have been packed into the said tube were taken into possession vide recovery memo. Exhibit PA. The bicycle Exhibit P2 and the tube Exhibit P1 were also taken into possession. Rough site plan Exhibit PC was prepared to show the place where the petitioner was intercepted. No person from the public was said to be present. After test report Exhibit PD was received, the petitioner was tried under Section 61(1)(a) of the Punjab Excise Act and convicted and sentenced as stated above.

(3.) LEARNED counsel appearing for the petitioner has read over the entire evidence which has been found to be sufficient in convicting him for the said offence. However, it has been urged by the learned counsel that the mere fact that the quantity of the liquor alleged to have been recovered is a heavy one, alone cannot be deemed to be sufficient to indict the petitioner. Learned counsel further urged that all the surrounding circumstances have to be examined. On a bare reading of the evidence consisting of the statements of ASI Sucha Singh PW-2 and Constable Kulwant Singh PW-1, one does not find mention as to wherefrom 100 empty bottles were procured and who had brought those bottles and from whom. This part of the investigation has remained totally obscure and unfolded. It appears that the Investigating Officer has formally put the quantum of liquor as he desired. Otherwise, he was supposed to conduct an actual investigation on this aspect of the case, which goes to the root of the matter. Learned counsel has urged that in such a process of getting 100 empty bottles, the Investigating Officer must have engaged many persons and must have taken lot of time in completing the investigation rather than taking a few minutes in the investigation of the case, as claimed by the police official witnesses themselves. It is obvious that no independent person was joined. In such a case there would have been no problem if the Investigating Officer had brought some witnesses who had supplied the aforesaid bottles and had interaction with the said police officials during the investigation of the case. It also appears to be improbable that the petitioner would have come to a place where the police party was present in uniform if he was carrying a huge quantity of liquor. He could see from a distance that the police was already present there. On the other hand, the police officials were not aware of the distances of various villages nearby from the place the petitioner was intercepted. They were not even aware about the carrier on the bicycle and where (whether ?) the gunny bag in which the tube had been placed was fixed on the bicycle or not. In fact, there was none, which rules out the possibility as to where such a gunny bag could be kept.