BOOTI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE present petitioner was convicted under Section 61(1)(a) of the Punjab Excise Act, (hereinafter referred to as the Act) and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2000/- and in default of payment of fine he was ordered to undergo further rigorous imprisonment for three months. The petitioner was further convicted under Section 61(1)(c) of the Act and sentenced to undergo rigorous imprison,ment for one year and to pay a fine of Rs. 5000/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for three months by the trial magistrate vide order dated 22.3.1986. The appeal filed against the order of conviction and sentence passed by the trial Court was dismissed vide order of Additional Sessions Judge, Hoshiarpur dated 9.7.1986. Aggrieved against the orders of the conviction and sentence passed by the Courts below the petitioner has filed the present revision petition.

(2.) IN brief facts relevant for the disposal of this petition are that on 27.12.1980, ASI Samund Singh, alongwith other police officials including HC Gian Singh was present in the Mand area of river Beas near Dhusi Bundh, in connection with excise raid. The secret information was received against the petitioner that he was distilling illicit liquor by means of a working still on the bank of river Beas on the nearby pond. On the basis of the said secret information formal first information report was subsequently registered at the Police Station. the police party then went and raided the place situated within the village Mewa Maina, where the appellant was caught red handed while distilling illicit liquor by operating a working still, which, was allowed to cool down and dismantled and its various components including the drum boiler and the plastic receiver were taken into possession. Contents of the receiver were transferred into 11 bottles and the same alongwith sample nip were also taken into possession by the police. On further interrogation the petitioner made a disclosure statement that he had kept concealed two drums containing lahan in the Mand area of the river under heaps of Sarkandas and offered to get the same recovered. Then in pursuance of his disclosure statement the petitioner got recovered two drums each containing 150 kgs. of lahan. Both of these drums were sealed and taken into possession by the police. In respect of the said recovery another ruqa was sent from the spot and on its basis formal first information report was registered in respect of the said offence. After completion of the investigation, the petitioner was challaned in both the cases. Both these cases, were ordered to be consolidated and joint trial in both the aforesaid cases was conducted. The petitioner was convicted and sentenced by the Courts below as stated earlier. The learned counsel for the parties were heard.

(3.) ANOTHER infirmity in the prosecution case is that the case property was not produced at the time of joint trial in the Court though according to the learned State Counsel such property was produced when the two cases were separately tried. However no sufficient or plausible explanation is coming forth from the prosecution for non-production of the case property during he joint trial. It is true that according to Division bench authority of this Court in Balrai Singh v. State of Punjab, 1982 Criminal Law Journal 1374, it was observed that "the mere non-production of part or the whole of the case property would not by itself vitiate the subsequent conviction of the accused." The aforesaid Division Bench authority in Balra Singh's case was subsequently discussed in Single Bench authority of this Court in Suba Singh v. The State of Punjab, 1984 Chandigarh Criminal Cases 250, wherein reference was made to the observations of the Division Bench in para 5 of the judgment, which read as under :-