Baj Singh vs State of Punjab

V.S. Aggarwal, J.

The present revision petition has been filed by Baj Singh (hereinafter described as the petitioner) directed against the judgment and the order of sentence passed by the learned Judicial Magistrate, Patti dated November 28, 1986 and that of the additional Sessions Judge, Amritsar dated September 25, 1987. The learned judicial Magistrate had held the petitioner guilty of the offence punishable under Section 61(1)(c) of the Punjab Excise Act, 1914 and sentenced him to undergo rigorous imprisonment for one year and fine of Rs. 5000/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for four months. The appeal filed by the petitioner was dismissed by the court of Sessions as referred to above already.

The relevant facts of the prosecution case are that on September 10, 1983, ASI Madan Lal alongwith other constables was going in the mand of river Beas. It was within the limits of village Karmuwala. The petitioner was seen distilling illicit liquor. On seeing the police party, he ran away. The working still was cooled and dismantled. There was 15000 Mili Litres of illicit liquor in the pitcher. A representative sample was taken. It was sealed. The rest of it was transferred in the tube. The tube, drum boiler and the other drum which contained 100 kilograms of Lahan was also lying nearby. These articles were taken into possession vide recovery memo. Rukka was sent to the police station. On basis of the same, formal First Information Report was recorded by ASI Harbans Singh. He prepared rough site plan. Excise Inspector Harjit Singh tested the contents and reported that it was a mixture of Gur, water and Kikar Barks. It was fully fermented lahan, fit for distillation of illicit liquor. After completing the other formalities and receiving even the report of the Chemical Analyst, report under Section 173 Code of Criminal Procedure was filed.

The learned trial Court framed a charge against the petitioner for the offence punishable under Section 61(1)(c) of the Punjab Excise Act. The petitioner pleaded not guilty and claimed a trial. On appraisal of the testimonies of the witnesses pertaining to the recovery, the learned trial court held that it has been established beyond all reasonable doubts that the petitioner was found running a working still and accordingly the abovesaid judgment and order of sentence were passed. Aggrieved by the same, an appeal was filed. The learned Additional Sessions Judge rejected the contention that a test identification parade was necessary. It was held that petitioner was already known and his name figures in the First Information Report. The other findings of the learned trial Court were approved and the appeal was dismissed.

Learned counsel for the petitioner assailed the findings of the courts below urging that no public witness has been joined and in any case there was no attempt made to preserve the case property.

In this regard, the necessity of preserving the case property cannot be over emphasised. It is the duty of the prosecution to preserve the case property till such time the appeal or revision is finally decided. If there is any such event which may prevent the preservation of the case property, the permission of the court should be taken to destroy the said property. One would hasten to add that if the case property is not produced, indeed, in final analysis it had to be seen if any prejudice is caused to the accusedpetitioner or not.

ASI Sohan Lal appeared in the witness box and during the examinationin chief, he supported the prosecution case. During crossexamination, he admitted that there was no Lahan in drums that were being produced, there was no seal on any drum, there was not even a chit on any of the drums, even on the pitchers, there was no seal or a chit, the seal on the tube was broken. The precise crossexamination in this regard reads :

"It is correct that there is no lahan in the drums. It is also correct that there is no chit on any of the drums. It is correct that drum boiler is of small size and the other drum is bigger one. It is correct that drum boiler is lying in horizontal position, and the other drum is in standing position. It is correct that if the bigger drum is put horizontally it will contain no lahan. It is correct that there is no chit or seal on two pitchers, and naliplasitic. It is correct that at present seal on the tube is broken. It is correct that there are 6/7 punctures on the tube Ex. P5 at present. We were four officials in all and we went on cycles."

It is patently clear from what has been reproduced above that case property was not being maintained separately, so that it could be identified. The seals were broken. There were no chits for identifying that it pertains to the case in which the petitioner had been arrested so much so that even in the drums there was no Lahan. It is anybody''s guess, as to where the said lahan has disappeared. The petitioner has a grievance to urge that prejudice is caused. He can ask for sending other representative samples (with permission of the court) for another opinion. In addition to that any pitcher or drum could be produced linking with the case in which the petitioner had been arrested. The theory of fair trial vanishes. No due care or caution has been taken in this regard.

In this backdrop, the absence of public witness assumes great importance. It is true that testimony of an official witness need not be rejected simply on the ground that he is an official witness, but a genuine attempt must be made to join public witnesses. When there is no public witness in the present case and any piece of drum or pitcher is being produced as case property, the chances of false implication can never be ruled out. The benefit of doubt must accrue to the petitioner.

For these reasons, the revision petition is accepted. The impugned judgment and the order of sentence passed by the learned courts below are set aside. Awarding benefit of doubt, the petitioner is acquitted.