Dilbag Singh vs State of Haryana

G. S. Chahal, J.

The petitioner was tried by Shri Surinder Kumar, Judicial Magistrate I Class. Sirsa and was convicted for an offence under section 61(1)(c) of the Punjab, Excise Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 2,000/ or in default further RI for three months. Appeal against that order was heared by Shri S.D. Arora, Additional Sessions Judge, Sirsa who vide his judgment dated 15121989 dismissed the same. In the present revision, these orders have been challenged.

The petitioner was sent up for trial on the basis that on 821985 a Police party consisting of HC Kamaljit Singh, HC Balbir Singh and other constables, was present at village Lakkarwali in connection with patrolling duty and excise checking. On receipt of secret information that the petitioner was working a still, a Ruqa was forwarded to the Police Station and the Police party itself carried out the raid. The Police party found that in the Sarson fields of Piara Singh, a still had been installed by the Petitioner and he was distilling illicit liquor. At the time of raid, he was changing water of the cooler. A plastic can containing 51/2 bottles of illicit liquor and a pitcher containing about 20 kg. of Lahan were found lying near the spot. The still was cooled down and dismantled Samples were drawn from the plastic can. The sample, plastic can and pitcher were separately sealed and recovery memo Ex. PA was prepared. Rough site plan Ex. PC was also prepared. Lahan was got tested from Excise Inspector Ram Singh. The sample was formally sent to the Chemical Examiner and his report Ex. PX was obtained.

To prove its case, the prosecution examined HC Balbir Singh and HC Kamaljit Singh as witnesses to the raid and recovery. Excise Inspector Ram Singh proved his report. Affidavits of formal witnesses and the report of the Chemical Examiner were tendered in evidence.

The petitioner denied the prosecution allegations. He, however, did not produce any defence.

The still is stated to have been found installed in the Sarson field of Piara Singh, a place situated at a distance of 21/2 furlongs from the village. It is claimed that more than 51/2 bottles of illicit liquor had already been distilled which means that the still was being worked for quite some time. No serious effort appears to have been made for joining members from the public to witness the occurrence. The Courts have always expected independent corroboration to such recoveries. In the case like the present one where the investigating officer prefers not to join a member of the public, an inference is normally drawn that he wanted to keep the entire occurrence as secret and that shall attach a taint to the testimony of the Investigating Officer, Both the Police officials who were the witness to the recovery were petty officials and in the absence of independent corroboration, it will be unsafe to base conviction for an offence for which the Legislature has provided harsh punishment.

Another interesting feature of the case is that when the articles of still were produced in Court, they did not bear identification marks. The boiler was not fit for use and in the plastic can there was no liquor. It was obviously the duty of the prosecution to have kept the material exhibits of the case intact till they were produced in Court.

On the assessment of the entire evidence, I am of the view that the case of the prosecution is not free from reasonable doubt and the petitioner must get benefit of doubt. I hereby allow the revision & after setting aside the orders of the Judicial Magistrate and the Additional Sessions Judge, acquit the petitioner of the charge. If in custody, the petitioner be set at liberty forthwith. Fine, if recovered, shall be refunded to him.