Dara Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

In this revision, petitioner has assailed his conviction and sentence of rigorous imprisonment for one year with a fine of Rs. 5,000/; in default rigorous imprisonment for two months under Section 61(1)(c) of the Punjab Excise Act, 1914.

Skeletal facts are that on 31.10.1984 at about 6.40 A.M., a secret information was received by ASI Swaran Singh while he was on patrol duty at railway crossing that accused is distilling illicit liquor in his house by means of working still. On that information, ruqa was sent, FIR was recorded; house of the accused was searched, accused was apprehended; working still was dismantled and cooled down. All the articles of working still were seized. A can lying near the working still contained 3750 MLs illicit liquor. Sample of 180 MLs was taken. All the articles were duly sealed. After completing the usual investigation, the chargesheet was filed.

During the trial, prosecution examined ASI Swaran Singh PW3, Harbans Lal Constable PW.2 and Pawan Kumar PW1 Excise Inspector who tested the sample and opined that it is illicit liquor.

Accused denied the charge, examined two witnesses in his favour to show his false implication.

The trial Magistrate believing the prosecution evidence and rejecting the defence plea convicted the petitioner for the said offence and sentenced him as stated at the outset. His appeal was dismissed by the Additional Sessions Judge, Jalandhar.

Petitioner''s learned counsel vehemently argued that though the raiding party got secret information and they passed through the petitioner''s village, they deliberately did not join any independent witness; therefore, the sworn testimony of these official witnesses should not have been relied on by the Courts below. Thus, according to him, benefit of doubt should have been given to the petitioner. The testimony of the witnesses examined by the accused were wrongly not believed. Relying on Full Bench decision of this High Court in Joginder Singh v. State of Punjab, 1980 PLR 585, the learned counsel submitted that the petitioner is aged 35 years; he is not a previous convict; he is facing this ordeal of criminal prosecution from 31.10.1984; therefore, benefit of probation either under the provisions of Probation of Offenders'' Act or under Section 360, Code of Criminal Procedure, should be given to him. He has already undergone 14 days jail sentence.

So far as nonjoining of independent witnesses is concerned, the prosecution witnesses ASI Swaran Singh PW3 and Constable Harbans Lal PW2 have categorically stated that the constable was sent in the village to call independent witnesses to witness search and seizure, but none agreed to join; therefore, they were unable to join independent witnesses. It is known fact that in villages people distil the illicit liquor by means of working still with the knowledge of the villagers and sometimes with their connivance because illicit liquor is manufactured for the villagers. Thus, it is not surprising that none of the villagers agreed to join investigation, but on that count alone, the sworn testimony of these police officials cannot be discarded or thrown away. They have corroborated each other. No infirmity, inherent probability, inconsistency or contradiction in their statements is pointed out during arguments. Thus only because of their official mantle, their sworn testimony does not deserve nonacceptance. Both the Courts below have not fallen into error in relying on the statements of these witnesses even in the absence of any independent Corroboration.

So far as other ground is concerned, a Full Bench has considered in Joginder Singh''s case (supra) whether the benefit of probation can be given to such an accused, they have observed that "...what has been said above in the context of edible food and economic offences applies with even greater emphasis to the commercial production of illicit liquor illegally by running working stills. The dangers herein are inherent and sometimes more immediately fatal than those under the Prevention of Food Adulteration Act. The spate of deaths resulting from the clandestine imbibing of poisonous illicit liquor, as often reported in the press provides a redlight signal. The legislative trend is again evident in enhancing the minimum sentence under Section 16(1)(c) of the Punjab Excise Act, 1914 to two years'' rigorous imprisonment and a fine of Rs. 5,000/ by the Amendment Act No. 31 of 1976. They also approved the observation made by Justice S.C. Mittal as he then was in Harnam Singh v. The State of Punjab, 1976(78) PLR 939 and finally the Full Bench held "it will be plain from the aforesaid catena of authorities that it is only in exceptional circumstances and for specific wighty reasons recorded that the broad policy of declining the benefit of probation to an accused person in these cases can be possibly deviated from."

In this case the petitioner''s learned counsel was unable to point out any exceptional circumstance which could possibly merit the invoking of the beneficent provisions of the probation either under section 360 of the Criminal Procedure Code or under the Probation of Offenders'' Act itself. Simply because the accused is aged 35 years or was facing this prosecution from 31.10.1984 or he is not a previous convict are not such extenuating circumstances.

Hence, finding no merit in this revision, it is hereby dismissed. Petitioner''s conviction and sentence as recorded by the Courts below is hereby maintained.

Revision dismissed.