Balbir Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

Balbir Singh was tried for an offence under Section 61(i)(a) of the Punjab Excise Act by Judicial Magistrate 1st Class, Fazilka and was held guilty. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/ vide judgment dated July 30, 1986. Against this judgment he preferred an appeal which was dismissed by the Additional Session Judge, Ferozepur, on 6.11.1986 and he has now filed the present revision petition assailing his conviction and sentence.

The prosecution case against the petitioner was that on 31st March, 1983, Assistant Sub Inspector lqbal Singh was on patrol duty along with other police officials and when the police party reached near the river, smoke was noticed coming from the reeds. That place was raided and the petitioner was found distilling illicit liquor by running a still. At the time of raid he was feeding fire under the hearth. He was apprehended at the spot and the still was cooled and dismantled. One drum containing about 70 kilograms of lahan was being used as a boiler. Liquor was being received in a tin out of which sample was separated and the rest of the liquor was transferred into a bottle. All the articles of still were scaled and were seized against the petitioner and after completion of the investigation he was challaned.

The prosecution examined Assistant Sub Inspector Iqbal Singh PW 1, constable Pal Singh PW2 and Excise Inspector Gurdev Singh as PW3. Report of the Chemical Examiner Ex.PE and affidavits of formal witnesses Ex. PF and PW were also tendered in evidence.

The contention of the petitioner in his statement under Section 313 CrPC was that he was never found distilling illicit liquor and was falsely involved in the case.

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

It was argued on behalf of the petitioner that link evidence in the case was missing as the affidavit Ex. PF was not property attested, The affidavit was attested by Executive Magistrate whereas it bore the seal of Assistant Collector and there was nothing on record to show that the Executive Magistrate was also empowered to work as Assistant Collector and benefit of this discrepancy was to go to the petitioner. It was also urged that the statements of the official witnesses were discrepant and inconsistent and their testimony was not corroborated from any independent source. The investigating officer did not try to associate any witness before proceeding to the place of raid.

All these contentions of the learned counsel are without merit. The affidavits Ex. PF and Ex.PG are duly attested. Ex.PG is attested by Judicial Magistrate Ist Class, Fazilka and it bore the seal of the Judicial Magistrate. Ex.PF was attested by Executive Magistrate, Abohar and it also bore the seal of Executive Magistrate. The prosecution case, therefore, does not suffer from any infirmity for want of proper attestation of the affidavits tendered in evidence. So far as nonjoining of any independent witness is concerned, it is the case of the prosecution that the police party was patrolling the area when smoke was noticed and the place was raided where the petitioner was found working a still and distilling illicit liquor. It was not a case where the police party had prior intimation and a raid was conducted in pursuance thereto. The discrepancies found in the statements of prosecution witnesses are also minor and do not go to the root of the case. The Courts below rightly appraised the evidence on record and held the petitioner guilty.

The learned counsel for the petitioner lastly submitted that the petitioner in the case was apprehended on 31.3.1983 and a period of 10 years has elapsed. The petitioner is not a previous convict and this being his first offence he may not be sent to jail after the lapse of 10 years and may be given benefit of probation. In support of his contention he placed reliance on the case of Ram Sarup and another v. The State of Haryana, 1993(3) Recent Criminal Reports 114 , which was also a case of working still. It was held therein that it is incumbent upon the Courts to give benefit of probation when the offenders are entitled to it under Section 360 of the Code of Criminal Procedure unless the Courts find that the convicts are incorrigible and cannot be reformed.

In the instant case the petitioner was of the age of 26 years at the time the case was registered. He is not a previous convict and is not shown to be a person with bad antecedents. So. keeping in view his antecedents and also the time spent in this litigation, I feel that it will be expedient in the interest of justice to give the petitioner a chance to mend his ways rather than to send him to jail. Accordingly, I maintain the conviction of the petitioner but direct that be released on probation on his entering into a personal bond in the sum of Rs. 5000/ with one surety in the like amount to the satisfaction of the trial Court for a period of one year undertaking to appear and receive sentence when called upon during this period and in the meantime to keep peace and be of good behaviour. He is further directed to deposit Rs. 500/ as costs of the proceedings. The revision petition is dismissed except with respect to the modification in sentence as mentioned above. Probation bonds be furnished within one month to the satisfaction of the trial Court.