NANUA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In assailing the judgement of the learned Additional Sessions Judge, Deeg, Mr. Dhankhar, learned counsel for the accused petitioner, has raised three-fold contentions. The first is that there is no evidence as to where the sample remained for a period of 30 days, therefore, the possibility of sample being tampered with cannot be excluded. The second submission of Mr. Dhankhar is that the independent witnesses did not support the case. of prosecution and therefore, a finding should not have been recorded that 140 bottles of illicit liquor were recovered from the possession of accused. The last submission of the learned counsel is that an offence under Sec. 54 of the Rajasthan Excise Act short 'the Act') is punishable with imprisonment which may extend to three years and, therefore is such which could have been dealt with under the provisions of Probation of Offenders Act, 1958 (for short 'the Act, 1958') and in view of the mandate of the legislature contained in Sec. 361, Cr.P.C., it was the duty of the Court to have recorded special reasons for not dealing with the case of the accused under the Act, 1958.

(2.) So far as the second submission of learned counsel for the petitioner that if the independent witnesses of search do not support thew case of the prosecution then a finding cannot be recorded that illicit liquor was recovered from the possession of the accused, is concerned, I am of the opinion that no such inflexible rule can be laid down. Even in cases where the independent witnesses of search do not support the case of the prosecution, go against the contents a the search memo which is bearing their signatures, in case the Court relies on the statements of the Excise Officer, it can be held that accused was found in possession of illicit liquor. In this connection reliance may be made to the case of Jamwant Singh v. The State of Rajasthan, 1957 Raj LW 438. In the instant case, two witnesses of search namely Sharpan (P.W. 1) and Kishore (P.W. 2) did not support the case of the prosecution. Each of them admitted that they have signed the search memos and did not deny their signatures on them. It is not unusual that when an accused person is tried they always being high stalls and the witnesses being of the same village, rather of the same locality, for the reasons of pressure of the accused or for other reasons go back on their previous statements and even deny that the search memo was prepared in their presence. Therefore, if it be held that in all cases in which the attesting witnesses do not support the case of the prosecution, the accused cannot be held guilty then there is bound to be failure of justice. Each case will have to be examined on its own facts. In the instant case, the Excise Officers namely, Mangtu Ram (P.W. 3) and Ram Chandra (P.W. 6) are the Excise Officers. There is no material on record, rather there is no suggestion even that they bear any ill-will against the accused petitioner. There is no reason to ignore their statements more so when the trial Court and the appellate Court have placed reliance on their testimony and have held that the accused was found in conscious possession of 140 bottles of illicit liquor.

(3.) Coming to the first submission of the learned counsel for the petitioner that no evidence has been led as to how the sample after being taken was dealt with, the possibility that the seals were tampered with cannot be excluded, it may be stated that Kishan Behari (P.W. 4), an Excise Inspector in his statement stated that the sealed sample was sent vide Ex. P-4 through a guard Suraj Singh in sealed condition for analysis. A receipt was given by the office of the Chemical Examiner which is on the back of the Ex. P-4. Suraj Singh (P.W. 5) has also been examined and states that on 23-1-77 sealed sample was given to him for being delivered in the office of the Chemical Examiner and he had delivered it in sealed condition in his office. Surprisingly, not a single question was put to either of them that the seal of the sample was tempered with. The illicit liquor was recovered from the house of the accused on 26-12-76 and on 23-1-77 it was sent to the Chemical Examiner where it was received in sealed condition. There is a mention in the report of the Chemical Examiner that the sample was in sealed condition and seals were intact and unbroken. Thus, there is no material to record a finding that the seals have been tampered with.