Anokh Singh vs State of Punjab

V.K. Bali, J.—This revision has been directed against the order of Judicial Magistrate 1st Class, Muktsar, dated 21.8.1986, vide which petitioner herein was held guilty for an offence punishable u/s 61(1)(c) of the Punjab Excise Act, 1914 and was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/- and in default thereof to further undergo rigorous imprisonment for four months as also the order passed by the learned Additional Sessions Judge, Faridkot, dated 1.10.1987, vide which appeal preferred by the petitioner against the order dated 21.8. 1986 was dismissed.

In brief, the case of the prosecution has been that on 2.1.1985, a police party headed by Head Constable Balwant Singh was present near the school of village Midda in connection with excise checking while on patrol duty. Head Constable Balwant Singh received secret information to the effect that the petitioner was distilling illicit iiquor by means of a working still in his fields and he could be apprehended on conducting a raid. Ruqa Ex.PA was sent to Police Station Sadar Malout on the information, as mentioned above, on the basis of which formal FIR Ex.PA/1 was recorded. Police party thereafter raided the fields of the petitioner, who was found distilling illicit liquor by installing a working still. Drum Ex.Pl containing about 100 Kgs. of lahan was being used as a boiler, whereupon, pitcher Ex.P2 had been placed. There was a hole on one side of the pitcher wherein plastic tube Ex.P3 had been fitted, the other end of which was filled in the receiver tin Ex.P4. The receiver was found to contain illicit liquor. After taking out a quarter as a sample, the remaining quantity of illicit liquor contained in the receiver tin was poured into two bottles Ex.P5 and Ex.P6. Another drum containing about lOOkgs. of lahan, besides a match box, was found laying near the working still, which too was taken into possession along with the tube Ex.P8 and tin Ex.P9. The sample nip and the bottles Cx.P5 and Ex.P6, besides the drum builder and the other drum, were sealed wiih the seal of Head Constable Balwant Singh bearing impression ''BS'' and were iaken into possession vide recovery memo. Ex.PB. Specimen of seal impression Ex.PI was prepared and thereafter the seal was handed over to Head Constable Tarsem Singh. On return to the police station, the case property was deposited with M.H.C. Gurbachan Singh with seals intact. On receipt of the report of Public Analyst-cum- Assistant Chemical Examiner and after seeking the opinion of Excise Inspector Gora Lal Sharma, the petitioner was challaned u/s 61(1)(c) of the Punjab Excise Act, 1914.

The prosecution in its endeavour to prove its case against the petitioner, examined Head Constable Balwant Singh-PW1, Head Constable Tarsem Singh-PW2 and Excise Inspector Gore Lal Sharma-PW3. Report of the Punjab Analyst-cum- Assistant Chemical Examiner Ex.PD and affidavits of formal witnesses M.H.C. Gurbachan Singh and Constable Megh Raj, Ex.PF and Ex.PG, respectively, were tendered in evidence.

When examined u/s 313 of Code of Criminal Procedure, the petitioner denied the incriminating material put to him and pleaded that he had been falsely implicated. In this defence, he examined Jagir Singh DW1 and Constable Sukhdev Singh DW2.

Mr. Pathela, learned counsel representing the petitioner, vehemently contends that from the lest imony of Constable Sukhdev Singh, it is clear that register No. 19 contained only five items, i.e., a drum boiler containing about 100 kgs., of lahan. a pitcher, plastic tube, a pipa tin and two bottles of liquor and sample, which were deposited with the M.H.C. and that the second drum alleged to have been recovered from nearby the working still, which too contained about 100 kgs. of lahan, is not recorded in the register, which in itself is enough to render the prosecution case highly doubtful. This contention was raised before the learned trial court, which has been dealt with by observing that it is by way of inadvertence that M.H.C. may have overlooked to make entry of the pointed drums in the register and there was voluminous evidence on the record to prove the fact that the other drum was also recovered from nearby the working still. The prosecution case with regard to recovery of second drum was proved by Balwant Singh and Tarsem Singh and both the them have solemnly affirmed that another drum was too recovered lying nearby the working still. It is also in the recovery memo. Ex.PB that another drum containing about 100 Kgs. of lahan was also recovered and there was specific meniion in Ex.PF affidavit of Gurbachan Singh MHC thai two drums each containing 100 kgs. of lahan were also deposited with him along with other case property. Gora Lal Sharma, Excise Inspector, has also made a mention in his report Ex.PE that the contents of two drums were subjected to physical lest by him. This Court is of the view that the reasons given by the learned trial Court in rejecting the contention of learned counsel, mentioned above, are based upon evidence that has been led by prosecution. The overwhelming evidence regarding recovery of two drums cannot be set at naught by a mere inadvertence in non-recording of the same in the register.

Mr. Pathela, learned counsel representing the petitioner, further contends that it is a case of secret information and yet the prosecution did not join any independent witness and that in itself is enough to raise a doubt in the veracity of the prosecution version. This Court finds no substance in this argument of learned counsel as well. It is, too, well settled by now that when the prosecution case depends upon official witnesses, all that is required to be done is to scrutinise the same with due care and caution. It cannot be said that wherever the prosecution version might depend upon the statement of the official witnesses, the same shall be rejected unless corroborated by independent witness. That apart, it has been observed by the Courts below that people were working in the fields located far away from the place of recovery. The last contention of Mr. Pathela that the evidence of two prosecution witnesses is discrepant inasmuch as one of the witnesses stated that second drum contains only 50 kgs. of lahan, whereas the other stated that it contains 100 kgs. of lahan and that also in itself is enough to raise a doubt on the prosecution. This Court finds no merit in this contention as well. When a considerable time elapsed from the date of recovery and when witnesses actually came into the witness box and made statements, there are bound to be some discrepancies in their statements made before the Court. That apart, when discrepancy is of such a nature that may not result in rejecting the prosecution case, it cannot effect the prosecution case.

The last contention of learned counsel that the petitioner happened to be a first offender and that he was 40 years of age at the time of commission of crime and has already undergone the agony of protracted trial and, therefore, deserves to be let off on probation under the provisions of Section 4 of the Probation of Offenders Act, 1958, however, deserves to be accepted even though in part. It has been seen from the facts of the case that the petitioner was found distilling illicit liquor by means of working still, minimum punishment whereof is six months and as the petitioner was found in possession of huge quantity of lahan (200 Kgs.), he, therefore, cannot be let off on probation, but surely, for the reason that he has already undergone the agony of trial for a period of 15 years by now, sentence awarded to him deserves to be reduced to the minimum prescribed under the Act.

In view of the discussion made above, finding no merit in this revision, the same deserves to be dismissed insofar as findings of guilt recorded by the Courts below against the petitioner are concerned. However, in the matter of sentence, the revision deserves to be partly allowed. While, thus, upholding the order of conviction, I reduce the sentence from one year rigorous imprisonment to six months rigorous imprisonment. The petitioner shall also pay fine, which has been imposed upon him by the learned trial court, failing which he shall further undergo rigorous imprisonment for six months.

This revision is, thus, partly allowed, in the manner indicated above.

Revision partly allowed.