STATE OF PUNJAB Vs. SARDUL SINGH

JUDGEMENT

(1.) ON 24.4.1980, A.S,I. Darshan Singh of Police Station 'C' Division, Amritsar, was patrolling the area along with other police officials and Darshan Singh PW. When the police party reached near the abadi of Kohrian, Sardul Singh respondent and one Satnam Singh were seen coming from the opposite direction. On suspicion they were apprehended. Personal search of the respondent was conducted which led to the recovery of two bladders containing illicit liquor from a gunny bag. Sample was taken from each bladder and the liquor from the bladders was transferred into 40 bottles. The sample and the bottles were sealed with the seal bearing impression 'DSM' which after use was handed over to Darshan Singh PW. A recovery memo was prepared and a ruqqa was sent for registration of the case. Rough site plan showing the place of recovery was prepared. The case property was deposited with Moharrir Head Constable with seals intact. Samples were sent to the Chemical Examiner who reported that the contents of the sample constituted illicit liquor. On these allegations the respondent was prosecuted for an offence under Section 61(1)(a) of the Excise Act by Shri U. S. Momi, Judicial Magistrate Ist Class, Amritsar.

(2.) THE respondent pleaded not guilty and contended that no illicit liquor was recovered from his possession. The recovery was foisted on him.

(3.) SH . Randhir Singh, Assistant Advocate General, Punjab, learned counsel for the appellant contended that there was sufficient evidence on record to prove the recovery of illicit liquor from the possession of the appellant, even though the investigating officer did not appear in Court for his cross-examination. The prosecution had examined Constable Bhupinder Singh who had witnessed the recovery and his statement was corroborated by Darshan Singh PW who was an independent witness and was not shown to have any bias against the respondent. The assertion of the learned counsel, however, does not hold good as the charge against the respondent was not substantiated by any independent, cogent and convincing evidence. The investigating officer ASI Darshan Singh made his statement in Court but his cross-examination was deferred. Subsequently various opportunities were granted to him but he did not appear in Court and his testimony was, therefore, not tested on the avail of cross-examination. He was the most important witness in the case as he was alleged to have effected search of the respondent, and recovered illicit liquor from his possession. He prepared the various documents on which the prosecution placed reliance but as he was not cross-examined, his testimony could not be taken into consideration and in this way material evidence in the case was missing.