Avtar Singh vs State of Haryana

Harmohinder Kaur Sandhu, J.

Avtar Singh was tried for an offence under Section 61(1)(c) and under Section 61(1)(a) of the Punjab Excise Act and was convicted by Additional Chief Judicial Magistrate, Kurukshetra vide his judgment dated 1.2.1985 and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/ under Section 61(1)(c) of the Punjab Excise Act. He was also sentenced to undergo R.I. for six months under Section 61(1)(a) of the Excise Act. He preferred an appeal against this judgment recording his conviction which was dismissed by the learned Sessions Judge, Kurukshetra on 22.8.1986. He has now filed this Revision Petition assailing his conviction and sentence.

The brief facts of the case are that on 30.6.1980 on receipt of secret information by Sub Inspector Kishan Lal that the petitioner could be found distilling illicit liquor if a raid was conducted, a case was got registered against the petitioner. The police party joined Mulakh Raj PW and raided the ''dera'' of Manjit Singh. The petitioner who was an employee of Manjit Singh was found distilling illicit liquor by working a still. At the time of the raid, he was feeding fire under the hearth. The still was cooled and articles of still were taken into possession. One drum containing about 100 kilograms of ''lahan'' which was used as a boiler and two other drums containing 200 kilograms of ''lahan'' each, lying close by were seized. A sample of liquor was taken from the receiver bottle and also from a plastic can containing about 20 bottles of liquor. The contents of the drums were tested by the Excise Inspector at the spot who reported that the same constituted ''lahan'' which was fully formented and was fit for distillation.

The case of the prosecution was supported by Sub Inspector Kishan Lal (PW1), Mulakh Raj PW.2, Sub Inspector Rajinder Singh (PW3) and Excise Inspector Raj Kumar Walia (PW4). Affidavits of formal witnesses were also tendered in evidence.

The contention of the petitioner in his statement under Section 313 Cr.P.C. was that he was falsely involved in the case and in fact he was never found distilling illicit liquor. He examined two witnesses in his defence.

I have heard the counsel for the parties and have perused the record.

The learned counsel for the petitioner submitted that in this case, earlier the petitioner was charged only for an offence under Section 61(1)(a) of the Punjab Excise Act for keeping in his possession 100 kilograms of ''lahan''. After evidence of the prosecution was recorded and the petitioner was examined, the charge was amended and the petitioner was chargesheeted for the offence of distilling illicit liquor by working a still and also for having in his possession about 500 kilograms of lahan and 21 bottles of illicit liquor. After the charge was amended no fresh evidence was recorded and the petitioner was entitled to acquittal on his score but this contention of the learned counsel is without any merit. When the charge against the petitioner was altered, he pleaded not guilty and the trial court adjourned the case for recording evidence of the prosecution afresh. On 25.1.1985 two of the prosecution witnesses namely R. K. Walia Excise Inspector and Mulakh Raj were present for being examined when the petitioner in the presence of his counsel made a statement that the prosecution evidence already recorded may be read and witnesses need not be examined afresh. This statement was duly thumb marked by the petitioner and on the basis of this statement the witnesses were discharged. It cannot be asserted on behalf of the petitioner at this stage that prejudice was caused to him for nonexamination of the prosecution witnesses again after alteration of the charge.

So far as evidence led by the prosecution, to prove the charge against the petitioner, is concerned it was quite cogent and convincing. On receipt of secret information the Investigating Officer had joined one witness Mulakh Raj and he had duly supported the version of the prosecution. All the witnesses were subjected to lengthy and penetrating crossexamination and no dent could be caused in their testimony. The evidence was duly appraised by the courts below and on the basis of the same conviction of the petitioner can well be maintained.

It was submitted on behalf of the petitioner that the petitioner has faced this trial for the last about 13 years and has already undergone sufficient mental harassment and expenses. So keeping in view the inordinate delay in the completion of the trial against the petitioner he may not be sent to jail at this stage and a lenient view may be taken in the matter of sentence. The petitioner has already undergone a part of the sentence awarded to him. I find that this contention of the learned counsel is quite tenable. The petitioner has faced this protracted trial for 13 years which must have caused him sufficient harassment and mental agony. He has undergone a part of the imprisonment and after such a long time it will not serve any useful purpose if he is sent to jail to serve the remaining sentence. Considering the circumstances of the case, I partly allow this Revision Petition and reduce the sentence of imprisonment to the period of which he remained in custody. The sentence of fine with its default clause is maintained.