MOHINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE Police party comprising of Head Constable Darshan Singh P.W. 3 and Constable Sakatar Singh P.W. 2 raided the Village of the petitioner on 24.7.1980 and unsuccessfully tried to associate independent witnesses, but all the same went to the house of the petitioner where he was found running a still for distilling illicit liquor. About 25 Kgs. of Lahan was found in the boiler and the receiver -bottle had some liquor in it is a result of the process of distillation. The Components of the still were brought to the police station. The following day on 20.7.1980 Excise Inspector Subhash Chander tested the Lahan and reported that it was such and fit for distillation of liquor.

(2.) THE petitioner was put up to trial for an offence under section 61(1)(c) of the Punjab Excise Act. The trial Magistrate examined Excise Inspector Subhash Chander as P.W. 1, Constable Sakatar Singh as P.W. 2nd Head Constable Darshan Singh as P.W.3. Vide order dated 7.9.1982 Shri A.K. Sharma, Judicial Magistrate Ist Class Amritsar, convicted the petitioner and impose upon him the minimum sentence prescribed by law, i.e R.I. for one year and fine of Rs. 5000/ - or in default of its payment to undergo further R.I. for six months. The appeal of the petitioner was accepted by Shri G.L. Chopra, Additional Sessions Judge, Amritsar on 21.9.1982, but the matter was remanded for fresh trial. The learned Sessions Judge found defect in the framing of the charge and the examination of the accused -petitioner under section 313, Cr.P.C. to be defective, inasmuch as the report of the Chemical Examiner had not been clearly put to the petitioner. It was ordered that petitioner would have the right of further cross examination and the evidence already recorded by the trial Court would be the base thereof. However, the Public Prosecutor and the trial Court were satisfied in producing the two police officials for further cross -examination and no such effort was made with regard to the Excise Inspector Subhash Chander P.W.1. Thus, in the second trial the prosecution lost the advantage of the examination of Excise Inspector Subhash Chander, the ultimate result of which is that there is no link evidence to prove that the substance put to boil was lahan. All what we have is the recovery of an apparatus with the recipient bottle containing illicit liquor duly tested by the Chemical Examiner whose report was tendered by the Public Prosecutor at the trial. All the same, the petitioner was convicted and given the same doses of sentence. His appeal to the same Additional Sessions Judge, Amritsar, met the fate of dismissal giving rise to the present petition in this Court.

(3.) AS is clear, the prosecution evidence consists of only the statements of Head Constable Darshan Singh and Constable Sakatar Singh. These are comparatively smaller functionaries of the Police Department. Discrepancies in the evidence thereof would lead to considerable doubt and in this connection it is noticeable that Sakatar Singh put the direction of the place of recovery from the police station as north -east at a distance of 5 to 6 Kms. whereas the Head Constable Darshan Singh put it as 7 Kms and on the eastern side. As already indicated, the conviction of the petitioner under section 61 (1)(c) of the Punjab Excise Act on the assertion that he was guilty of being found working a still to distil illicit liquor cannot be sustained in the absence of the evidence of the Excise Inspector and his report regarding testing of lahan formally being re -introduced into evidence and the petitioner being given an opportunity of cross -examining him. The case is thus at the level of section 61(1)(a) and 61(1))c) simpliciter of the Punjab Excise Act to determine whether the petitioner was found in possession of illicit liquor said to be in the receiving bottle and the components of the working still. The offence having been wittled down from what the charge was initially the discrepancy afore -noticed comes handy to doubt the prosecution case especially when nearly five years are to elapse since the petitioner was apprehended for the trial. This view is being taken keeping apart the strong defence put up by the petitioner that he had incurred the hostility of Thakri Sarpanch at the instance of whom, due to a political rivalry, the case had been planted on him. Further, despite the fact that the house of the petitioner was situate in the heart of the village no witness from the public came forward to support the recovery and none was taken along by the police from elsewhere to support it. All these circumstances cumulatively introduce an element of doubt in the prosecution case. I do not find thus safe to maintain the conviction of the petitioner in these circumstances. Resultantly this petition succeeds and the petitioner is acquitted of the charge. The fine if already paid shall be refunded to him. Petition succeeds.