KUNDAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE revision petitioner was found guilty of offence under section 61 (1) (c) of the Punjab Excise Act. The proven case of the prosecution against him was that he was found working on a still and at the time of his apprehension was found feeding fire to the boiler drum Ex.1. The component parts of the still were, after cooling, taken into possession, inclusive, of the receptacle in which the distilled substance was being collected. The law in Punjab is that for working a still for the manufacture of any intoxicant the offender must be awarded imprisonment not less than one year and fine not less than Rs. 5,000/ -. The Court has no discretion to reduce the sentence from the minimum prescribed.

(2.) AFTER his conviction and sentence by the trial Court, the petitioner in appeal before the Court of Session could successfully cast doubt on a portion of the persecution story and this related to the failure of the prosecution to lead cogent evidence to connect the report of the Chemical Examiner with the sample sent from the receptacle; as to whether it was illicit liquor or not. The finding recorded by the learned Sessionas Judge was that the link evidence of affidavits of two police functionaries had to be discarded and as a result thereof the report of the Chemical Examiner that the sample was illicit liquor was not be used against the appellant. It is on the basis of this finding that the learned counsel for the petitioner has raised the sole contention that the offence would not attract the minimum punishment of one year rigorous imprisonment and fine of Rs. 5,000/ -.

(3.) FOR offence under section 61(1) (c), that is to say for using, keeping or possessing any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant, the Court is empowered to award imprisonment to the offender which may extent to three years and fine upto Rs. 2,000/ -, but the proviso thereto requires the Court to impose the minimum sentence as stated heretofore only in the case of a working still for the manufacture of any intoxicant. A "working still" would obviously mean a still which has been set up, or is being worked for the purpose of distilling illicit liquor and has in fact, at the time of the recovery been found to be in productive process. To put it plainly, in that apparatus, the receptacle must bear the recipient as illicit liquor, for that obviously is an intoxicant within the meaning of the word used in section 3(12 -A). That says that the word 'intoxicant' means any liquor or intoxicating drug. Further, under section 3(14) the word 'Liquor' means intoxicating liquor and includes Lahan and all Liquid consisting of or containing alcohol; also any substances which the State Government may by notification declare to be liquor for the purpose of this Act. The learned Sessions Judge maintained the conviction of the petitioner, despite the finding afore referred to, being of the view that since the boiler drum Ex. P. 1 had contained Lahan fit for distillation, as separately examined by the Excise Inspector, and who had given a report in that regard, the proof of that fact established that the process that was being carried on with the help of the still was distillation of illicit liquor and that would prove the process for the purposes of proving the charge. But this view of the learned Judge seems to me erroneous and I intend to disagree with it. Though Lahan is liquor for the purposes of section 3 (14) but in the context of section 61 (1) (c), it is idle to say that if Lahan was in the drum boiler the process set up was for the purposes of working a still for the manufacture of Lahan. Already fermented Lahan does not require any process or apparatus to convert itself again to be a Lahan. It is only through the process of distillation of Lahan turning into illicit liquor that one can say that working still for the manufacture of the intoxicant known as liquor has been set up so as to attract the proviso and the necessary minimum sentence of one year and Rs. 5,000/ - fine. On the finding of the learned Sessions Judge this ingredient fell through. Though, the petitioner cannot escape the responsibility for keeping in his possession such still, material, utensil, apparatus etc, for the purposes of manufacturing any intoxicant he is yet not to be visited with the minimum sentence as required under the law. It is even so despite raising presumptions under section 76 of the Act that the possession of the apparatus, utensils etc. with the petitioner was in contravention of the provision of the Act. Thus, it is held that the Proviso is not applicable and the petitioner is not only guilty of offence under section 61 (1)(c) of the Punjab Excise Act simplciter but also under section 61 (1)(a) of the said Act for being in possession of Lahan. However, it would not be necessary to award him any separate sentence under section 61 (1) (a) as that would otherwise be made to run concurrent with that to be imposed under section 61 (1)(c). Therefore, one sentence under section 61 (1)(c) would be enough in the interest of justice. The petitioner is thus sentenced thereunder to six months rigorous imprisonment and fine of Rs. 1,000/ - so as to keep it in working spirit of section 61(1)(a). In default to payment of fine he shall undergo three months R.I.