Atma Singh vs State of Punjab

Ajit Singh Bains, J. (Oral)

The petitioner was convicted for the offence under section 61(1)(a) of the Punjab Excise Act, 1914, and sentenced to one year''s rigorous imprisonment and a fine of Rs. 1000/, in default four months, by the Judicial Magistrate Ist Class, Faridkot vide his judgment and order dated January 30, 1982. On appeal, his conviction and sentence was upheld by the Additional Sessions Judge, Faridkot vide his, judgment dated January 27, 1993. Hence this revision against his conviction and sentence.

Prosecution case as set up at the trial was that on 1941980, Head Constable Ram Singh along with other police officials was going on cycle in connection with patrolling from the police station towards villages Chaina and Kariri and when the police party reached the School of village Chaina, secret information was received by Head Constable Ram Singh against the petitioner to the effect that he was habitual distiller of illicit liquor and if a raid was conducted, illicit liquor or Lahan could be recovered from him. On the basis of the secret information, ruqa Exhibit PD was prepared and despatched to the police station and the case was registered at Police Station Jaito. Thereafter, the house of the petitioner was raided and he was found present. On interrogation, the petitioner suffered a disclosure statement to the effect that he had kept concealed one tube containing illicit liquor under the Turi in the Darwaza. His statement was recorded and in pursuance of the same he got recovered illicit liquor from under the heap of Turi. A sample was taken out and the remaining illicit liquor was transferred into 35 bottles. The sample was dent to the Chemical Examiner. It was found to he illicit liquor.

At the trial, the petitioner denied the prosecution allegations and pleaded false implication. He did not produce any evidence in defence

The prosecution case rests on the testimony of'' Sham Sunder P.W. 1 and Ram Singh, Head Constable P.W. 2. They have supported the prosecution version as given in the earlier part of the judgment. But, their testimony does not inspire confidence. According to them secret information was received against the petitioner that he was, dealing in illicit liquor and that thereafter they went to his house and found him present. On interrogation. he suffered a disclosure statement and led to the recovery of the illicit liquor. Strangely enough they did not join any independent person of the locality before entering the house of the petitioner. It was incumbent upon them under section 100(4) of the Criminal Procedure Code to associate two inhabitants of the locality but they did not do so. Hence. in these circumstances, it is very difficulty to rely on their testimony. They had sufficient time to associate independent persons of the village but they did not make any effort to do so as required under the aforesaid provisions. The aforesaid provision is to be complied with but it is often seen that the police officers never comply and join two inhabitants of the locality. It may be that sometimes two respectables are not available from the locality then they could join two respectable independent persons from the adjoining locality and if anybody refuses to join. the police officials could prosecute them under section 187 of the Indian Penal Code as empowered under subsection (8) of Section 100 of the Criminal Procedure Code. Moreover, the house was jointly owned. Many other persons were living in the same house and the place from where the recovery was made was open and accessible to all.

For the reasons recorded, I am of the opinion that it is not safe to maintain the conviction and sentence of the petitioner as recorded by the courts below. Accordingly, the petitioner is given the benefit of doubt and acquitted.

In the result, the petition is allowed and the conviction and sentence as recorded by the Courts below are set aside. He is on bail. His bail bond shall stand discharged. Fine if already paid shall be refunded to him.