Gurdip Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Accused petitioner has filed this revision against his conviction under Section 61(i)(a) of the Punjab Excise Act, whereby he is sentenced to undergo 6 months'' R.I. with a fine of Rs. 1000/; in default further R.I. for 1 month.

In a nutshell, the prosecution case is that on 30.12.1983, Assistant Sub Inspector Dev Raj PW2 alongwith police party was going in a government vehicle for conducting excise raid. Kabal Ram, Excise Inspector, also accompanied him. When they were going towards the bandh of river Satluj near village Raipur Arian, they noticed the accused coming from the opposite direction. When he saw the police party approaching towards him, he tried to run away. Thus, on suspicion, he was apprehended. On interrogation, the accused disclosed that he had kept concealed four drums of lahan for distillation of illicit liquor. His disclosure statement, exhibit PA, was recorded; then he led the police party and got recovered four drums each containing 150 kgs of lahan, Exhibits P1 to P4. The contents of lahan were tested by the Excise Inspector, Kabal Ram who found that it was lahan for distillation of illicit liquor and submitted his report Exhibit PB. The drums were sealed and taken into possession vide Memo Exhibit PC. Ruqa Exhibit PD was sent to the police station on the basis of which, formal FIR, Exhibit PD/1, was recorded. Exhibit PE is the rough site plan of the place of recovery. On these facts, chargesheet was filed.

In the trial Court, prosecution examined Kabal Ram, Excise Inspector PW1 and Dev Raj, Assistant Sub Inspector PW2. Accused denied the guilt and pleaded false implication.

The learned lower Court, finding the prosecution evidence reliable and trustworthy, held the accused guilty of the said offence and sentenced him, as stated above. His appeal was dismissed by Shri Pirthi Pal Singh, Additional Sessions Judge, Jalandhar.

Petitioner''s learned counsel strongly stressed that though the police party was going on excise raid, they never tried to join any independent witness. Even when they apprehended the accused and alleged disclosure statement was made by him, neither at that stage nor thereafter before seizure was made of those four drums and lahan, no attempt was made by the Investigating agency to join an independent witness. In the Court, Assistant Sub Inspector, Dev Raj PW2, has stated that he tried to join independent witnesses, but none was available, as this was not mentioned in the ruqa; therefore, it seems that to fill up the lacuna, he has stated so in the Court. This explanation ought not to have been accepted by the courts below and as no independent witness was joined by the Investigating agency at the time when the alleged disclosure statement was made by the accused as well as at the time of recovery, the whole of the prosecution evidence of the case ought to have been rejected and benefit of doubt should have been given to the accused.

His further contention is that there are major contradictions in the statements of both these witnesses, especially on the point as to from where these four drums of lahan were seized. As per ASI Dev Raj PW2, recovery was effected from the southern side, While E.I. Kabal Ram PW1 has testified that the recovery was effected from the northern side. According to him though there are other contradictions also, but this was a major contradiction, which causes a serious dent in the whole of the prosecution story and on this count, their statements should not have been relied on by the courts below.

He also contended that a plain perusal of the disclosure statement, Exhibit PA, and seizure Memo, Exhibit PC, reveal that these document were prepared subsequently. Had it been true that the disclosure statement was made and was recorded at the spot, as these witnesses say, they would not have left any space after the writing body of the disclosure statement and above the signatures appended thereon. This also shows that the accused has been falsely implicated in this case.

His last contention is that the accused is facing this agony of criminal prosecution since 1983; 14 years have passed, he has already undergone some jail sentence. In the interest of justice, his sentence should be reduced to already undergone.

Respondents'' learned counsel supported the judgment and argued that it is common experience that when the excise raids are conducted by the police party, villagers do not join the investigation because they are beneficiaries of the illicit distillation. There was no reason for the Courts below to disbelieve the sworn testimony of Dev Raj PW2 on this count when he has stated that he tried to join independent witnesses but none agreed. According to him, this fact was not required to be incorporated in the ruqa. Hence, its nonmentioning in the ruqa will not be indicative that Dev Raj PW2 is offering a false explanation.

About the disclosure statement and seizure Memo, his argument is that after writing the disclosure statement, there is police seal appended; below that accused has thumbmarked his statement and below that the witnesses and the Investigating Officer have signed it. This does not show that these documents were prepared later on to implicate the accused falsely.

So far as nonjoining of the independent witnesses are concerned, no doubt, the petitioner''s counsel has relied on various authorities, but each case is required to be decided on its own facts. In this case, Dev Raj PW2 along with other police officials and Kabal Ram, Excise Inspector, was going for an excise raid. The learned defence counsel candidly admitted at the time of arguments that Bandh''s side is notorious place for illicit distillation. According to him, a judicial notice can be taken of this fact. If this is true, then nonjoining of independent witness is not very material in this village. It is common trend that the villagers do not join the police party when they reach the villages to detect illicit liquor cases. Liquor is illicitly manufactured for the consumption of these villagers; they have a community of purpose; therefore, it is not surprising that at the time of search, villagers do not join the investigation. Dev Raj PW2 has given this explanation that why he could not join independent witness at the time of checking. It was not necessary for him to record this fact in the ruqa itself. Moreover, on this point, Dev Raj PW2 is not crossexamined; thus, his statement remains unassailed. There is no reason to disbelieve the sworn testimony of Dev Raj PW2 on this count. No oblique motive is imputed to these prosecution witnesses as to why at all they have implicated the petitioner falsely in this case. Further it is not a case where contraband could have been implanted because on seeing the police party, accused tried to run, then only on suspicion, he was apprehended and interrogated. This case is based on disclosure statement made by the accused to the raiding party and at the instance of the accused four drums of lahan were seized from his possession. The disclosure statement is recorded in about six lines. After leaving some space there is seal of the police station; below that name of the accused is written; below that there is thumb impression of the accused; below that also, name of the accused is mentioned and on the left side margin witnesses have signed it. Same is the position with Seizure Memo, Exhibit PC. If the police really wanted to prepare a false document, position of such a document would not have been as it is of Exhibits PA and PC. Accused has not stated in his statement under Section 313 of the Code of Criminal Procedure that his thumb impression was taken on a blank sheet of paper. Even these witnesses are not crossexamined on this line. In crossexamination of these two witnesses, no suggestion is given to them that these documents were prepared later on and the thumb impression of the accused was taken on blank papers. Hence, leaving of some space between the body writing and the thumb impression/signature will not make the document suspicious nor the oral evidence of these witnesses can be held to be unreliable on this score.

No doubt, certain contradictions are pointed out in the Revision Memo itself, but this fact cannot be lost sight of that these two witnesses were examined in May, 1985 and January, 1986, while the recovery was made in December, 1983. Thus, if there are certain minor contradictions in their statements, it cannot be said that their statements are wholly unreliable or they suffer from any inherent (sic).

So far as giving different directions, southern and northern are concerned, when such a question is put to them in crossexamination, such a witness is likely to commit such a mistake. Hence, on that count alone, it cannot be said that their statements are wholly unreliable.

No doubt, accused was apprehended on 30.12.1983, but he was convicted by the trial Magistrate on 28.2.1986. Thereafter, petitioner filed appeal against that conviction, which was decided on 27.5.1986 and his revision is pending in the High Court since 1986. On this point of delay alone, accused cannot be given benefit of probation or benefit of the sentence already undergone. This offence of illicit distillation should be dealt with a strong hand because such drinks are injurious for human health. Except delay, there is no other extenuating circumstance under which judicial compassion can be shown to the accused.

Accordingly, finding no merit in this revision, it is hereby dismissed.