Dhanpat vs State of Haryana

A.S. Garg, J.

On 31.12.1986, the petitioner was allegedly intercepted by the police party headed by ASI Shivdhan, PW.1, near village Kumthala, in the area of Police Station, Ellenabad, district Sirsa, Haryana, while he was coming with a canny containing illicit liquor measuring 201/4 bottles. One quarter of bottle was taken out as sample. The sample and the remaining illicit liquor were separately sealed with the seal "SS" and taken in possession vide recovery memo Ex.PA. Ruqa Ex. PB was sent to the police station and on its basis formal F.I.R. Ex. PB/1 recorded. Site plan Ex. PC was prepared. Ex.PD is the report of the Chemical Examiner. After completion of the investigation, the accused was challaned.

So, it was on the basis of the aforesaid evidence and the report of the Chemical Examiner Ex.PC, that the petitioner was convicted under section 61(1)(a) of the Punjab Excise Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months by the learned Judicial magistrate Ist Class, Sirsa. On appeal, the aforesaid order of conviction and sentence was affirmed by the learned Additional Sessions Judge, Sirsa.

This brought the petitioner in the present revision.

The learned counsel for the petitioner has vehemently argued that the version of the prosecution itself is highly improbable as the petitioner is not expected to expose himself by coming towards the place where the police party was present in uniform. He urged that the actual act of conveying the illicit liquor is done in a stealthily manner. No such person would come openly carrying liquor when the police party is nearby. According to him, the story is wholly unreliable and cannot be believed. He also referred to the fact that there is no independent corroboration to the statements of the official witnesses. He pointed out that the learned Courts below have brushed aside the important contradictions which had come in the statements of police officials. Even if one goes through the discrepancies referred to in the judgment of the learned Additional Sessions Judge, one can be of the view that the discrepancies are material and an inference can be drawn that in fact no such capture was made. Therefore, the discrepancies rendered the testimony of the official witnesses to be doubtful.

Lastly, it was urged that the affidavits Ex.PX of Head Constable Mohar Singh and Ex.PW3/A of Head Constable Khazan Singh, furnished by the prosecution witnesses in the case in hand during the course of evidence are not properly sworn in and verified and that the link evidence in this case is missing. The argument of the learned counsel for the petitioner is acceptable. It is well settled that the verification of the affidavit is required to be either on knowledge or information and it has to be specifically mentioned as to which part of the affidavit is verified on knowledge and which part on information. On perusal of the aforesaid affidavits it is clear that these affidavits have been verified on the basis of knowledge and belief.

Taking into consideration the fact that the prosecution story is improbable; that there is no independent corroboration to the testimony of the official witnesses and that there is no link evidence that the case property was deposited in the Malkhana intact, I am of the view that the prosecution has failed to establish its case against the petitioner. Therefore, the revision is allowed and the petitioner is acquitted of the charge framed against him.

Revision allowed.