Gurmej Singh vs State of Punjab

A.P. Chowdhri, J.

Brief facts of the case are that Gurmej Singh (32) was tried by the Judicial Magistrate 1st Class, Amritsar, for an offence under Section 6 1(1)(c) of the Punjab Excise Act, 1914. He was convicted by judgment dated January 10, 1985, and sentenced to rigorous imprisonment for 11/2 years and a fine of Rs. 5,000/ in default to a further rigorous imprisonment for six months. He preferred an appeal which was disposed of by the Additional Sessions Judge, Amritsar, on July 18, 1985. His conviction was maintained and imprisonment was reduced to rigorous imprisonment for one year. The sentence of fine was maintained. In default he was directed to undergo further rigorous imprisonment for four months instead of six months awarded by the trial Court. The present revision is directed against the order of the Additional Session, Judge.

The prosecution case is that on August 15, 1998 a police party headed by ASI Rishpal Singh was on patrol. The ASI received secret information, whereupon he sent ruqa to the police station on which a formal FIR Exhibit PC/1 was registered. The police party raided the house of the accused at village Timowal. The accused was found distilling illicit liquor. The apparatus was dismantled, cooled and taken into possession under necessary memo. The lahan which was being distilled was got tested from the Excise Inspector. It was certified to be Lahan fit for distillation.

At the trial, the prosecution examined the Excise Inspector Kanwaljit Singh PW1. In order to prove the main part of the case, the prosecution relied on the testimony of ASI Rishpal Singh PW3 and Constable Surjit Singh PW2. The plea of the accused was one of denial. He examined Baldev Singh DW1 in defence.

Learned trial Court accepted the prosecution evidence and on a consideration of the material on record, convicted and sentenced the accused, as aforesaid. The learned Additional Sessions Judge agreed with the assessment of the evidence made by the trial Court :

The contentions of Mr. Vipan Ghai, learned counsel for the petitioner are :

(i) Even though the police had enough opportunity, no independent witness was joined. This rendered evidence of the official witnesses suspect.

(ii) The lahan was not fully fermented and therefore, assuming the prosecution version to be true, the facts did not constitute an offence under Section 61(1)(c) of the Punjab Excise Act, 1914.

(iii) The courts failed to take notice of the evidence of the witness examined in defence.

I have carefully considered the contention of Shri Ghai and I regret my inability to agree with him. No infirmity could be pointed out by the learned counsel in the evaluation of the evidence of the witnesses examined by the prosecution. As correctly pointed out by the learned lower appellate Court, the two material witnesses ASI Rishpal Singh and Constable Surjit Singh were subjected to a fairly searching crossexamination and their testimony could not be shaken. It is settled law that an official witness cannot be doubted only on the ground that he is an official witness.

The fact that the process of distillation was going on shows that the lahan was fermented. Whether it was fully fermented or partially fermented may affect the degree or quantity of the alcohol distilled, but it cannot be said that the process did not amount distillation by a working still. Baldev Singh DW1 stated that there was a dispute between Harbans Singh, Avtar Singh and Harbhajan Singh sons of Labh Singh on the one hand and the petitioner on the other hand with regard to a passage in between their behaks. The dispute was followed by an occurrence in which injuries were suffered on both sides and the accused had been falsely implicated in the present case by the police at the instance of the other party i.e. Harbans Singh etc. Such evidence is not difficult to procure. The conduce of Baldev Singh DW1 goes to show that he was giving a prepared story. No material was produced on record to substantiate that any such occurrence took place. In any case, if the petitioner had been falsely implicated, he or other persons on his behalf must have raised hue and cry. The evidence of Baldev Singh DW1 was, therefore, not credible and was rightly rejected by both the courts.

The next submission of Shri Ghai was that there was no previous conviction against the petitioner. The petitioner was a householder with a family. He was a permanent resident of the village. The occurrence took place way back in August 1982. The petitioner had not given any cause of complaint during long periods of bail during the trial of the present case at various stages. He had been released on bail pending the present revision. Sending him back to jail, when the imprisonment awarded is one year, will not be in the interest of justice. I find merit in the above submission.

Accordingly, the sentence imposed on the petitioner is set aside. Instead it is directed that he shall be released on probation on his executing a bond in the sum of Rs. 3,000/ with two sureties in a like amount to of appear and receive sentence when called upon to do so, during a period two years from the date of execution of the bond, and in the meanwhile to keep the peace and be of good behaviour. The bond and sureties will be furnished to the satisfaction of the Chief Judicial Magistrate, Amritsar, within one mouth from the date of this order.

JUDGMENT accordingly