GURMAIL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) GURMAIL Singh son of Gurbachan Singh and Banta Singh son of Lakha Singh, the present two petitioners were convicted by learned Judicial Magistrate Ist Class, Zira on 20.7.1990 under Section 61(1)(a) of the Punjab Excise Act (for short, "the Act") and were sentenced to undergo RI for a period of one year and to pay a fine of Rs. 1000/- each and in default of payment of fine to further undergo RI for two months each. Both the petitioners thereafter filed the appeal against the impugned judgment of conviction and sentence. The learned sessions Judge, Ferozepur vide impugned judgment dated 16.7.1991 set aside the order of the learned trial Court and sent back the case to the trial Court with the direction that the trial Court would receive the duly attested affidavit of Moharar Head Constable Sardul Singh and then decide the case on merits. Aggrieved by the impugned judgment of learned Sessions Judge, Ferozepur, the present petitioners have filed the revision petition.

(2.) IN brief, the case of the prosecution is that on 5.5.87, the petitioners were coming in a car bearing No. PBX 6426 driven by Banta Singh and on suspicion it was stopped by the police party who were holding nakabandi. From the search of the car a tube containing illicit liquor was found under the feet of Gurmail Singh petitioner. A sample of the illicit liquor was drawn from the tube and after measuring the same it came to be 80 bottles. Both the petitioners were consequently booked under the Act.

(3.) MR . Ghai at the very outset has submitted that in the present case, the link evidence is missing as the affidavits Ex. PE and PF upon which the prosecution in relying are defective. He then contended that Ex. PF does not bear the seal of the Court which had attested it and as such it becomes inadmissible in the eyes of law and cannot be read into evidence. The conviction recorded by the trial Court is bad on this count alone. He has pointed out my attention towards para No. 2 of the impugned judgment of learned Sessions Judge, Ferozepur which reads as under :-