Desa Singh vs State of Punjab

V.S. Aggarwal, J.

This is a revision petition filed by Desa Singhpetitioner directed against the judgment and order of sentence of the Judicial Magistrate Ist Class, Fazilka and that of the Sessions Judge, Ferozepur, dated July 29, 1987 and November 27, 1987 respectively. The learned Judicial Magistrate had held the petitioner guilty of the offence punishable under Section 61(1)(c) of the Punjab Excise Act. The petitioner was sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 5,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for three months. The appeal filed by the petitioner was dismissed, but the sentence was reduced to six months rigorous imprisonment and a fine of Rs. 500/. In default of payment of fine, he was to undergo further rigorous imprisonment for one more month.

The relevant facts are that on January 20, 1984, ASI Jagjit Singh along with other police officials including Constable Lachhman Singh was patrolling. They were on the bank of the seepage drain in the area of village Noorshah. A column of smoke was noticed. A raid was conducted. The petitioner was caught redhanded while he was engaged in distillation of illicit liquor. A working still was functioning. Boiler drum contained 80 kilograms of Lahan and the freshly distilled liquor was being received in the tin. The working still was cooled and dismantled. A representative sample measuring 375 Mili litres was taken. The remaining contents were transferred into bottles. The boiler drum and the bottles were sealed and taken in possession vide the recovery memo. The representative sample was subsequently sent to the Chemical Analyst. He reported that it was illicit liquor.

The learned trial court framed the charge against the petitioner and examined four prosecution witnesses. The petitioner''s case was of false implication and he did not produce any defence. The learned trial court believed the prosecution evidence and held that prosecution has successfully proved its case beyond all reasonable doubts and accordingly passed the impugned judgment. The appeal filed by the petitioner was dismissed. Aggrieved by the same, the present revision petition has been filed.

Learned counsel for the petitioner highlighted the fact that there was no independent witness that has been joined and that in the facts of the present case, the conviction based on the testimonies of the official witnesses should not sustain.

In its broad principle, the said contention cannot be accepted. The testimony of the official witness has to be scrutinised like that of any other independent witness, but it must be truthful and court should be able to pin faith in the testimony of the official witness. An attempt in any case must always be made to join public witnesses and if they can be joined or are available and are not joined, in that event, the court can certainly take note of the fact and in an appropriate case draw the necessary inferences.

In the present case, admittedly, no independent witness was with the raiding party. During the course of trial, ASI Jagjit Singh has testified that the Tractor Trolley, on which the case property was taken to the police station was brought by Constable Balbir Singh at 6.00 p.m. Constable Lachhman Singh, on the contrary, stated that ASI Ram Singh, who was in the other police party had brought the Tractor Trolley. In its isolation, it appears to be a minor discrepancy, but when considered in the light of the fact that there were only official witnesses that were produced and the independent witnesses were not joined coupled with the fact as to how the case property was taken to the police station, indeed, it will be difficult to believe the testimonies of the official witnesses. The petitioner is entitled to the benefit of doubt.

For these reasons impugned judgments are set aside, revision petition is accepted. Instead the petitioner is acquitted, awarding him the benefit of doubt.