Gurvel Singh vs State of Punjab

G. S. Chahal, J.

Gurvel Singh revision petitioner has preferred this revision against the order dated 631986 passed by the Additional Sessions Judge, Amritsar in appeal affirming the order of conviction and sentence of the petitioner recorded by the learned Judicial Magistrate I Class, vide order dated 17101985, awarding sentence of one year RI and a fine of Rs. 5,000/ or in default, further RI for 6 months, in a case under Section 61(1)(c) of the Punjab Excise Act.

The petitioner was tried by Sh. Dharam Singh, Judicial Magistrate I Class, Amritsar on the allegations that on 2011983 a Police party headed by HC Sukhdev Singh, consisting of three constables, Kashmir Singh, Karam Singh and Baldev Singh, was present in the area of Gehri Mandi in connection with patorl duty secret information was received by the HC that the petitioner was working a still and distilling illicit liquor within the residential area. The HC recorded a Ruqa, Ex. PB and forwarded it to Police Station per Constable Baldev Singh. FIR was recorded by ASI Baljit Singh. The HC, with his associates, conducted a raid on the residential house of the petitioner. The petitioner was found to have fixed a still and he was distilling illicit liquor. At the relevant time, he was feeding fire. The still was cooled down and dismantled. From the distilled liquor, a sample of 180 ml was drawn. The sample and the remaining liquor were separately sealed. Boiler drum Ex. P I was also taken into possession. Contents of the drum were affirmed by the Excise Inspector to be partially distilled Lahan and fit for further distillation, The Chemical Examiner affirmed the contents of the sample to be illicit liquor.

The prosecution examined HC Sukhdev Singh (PW2), Kashmir Singh (PW1) and Kanwaljit Singh (PW3) as witnesses to the recovery who corroborated the above version. The statements of formal witnesses and report of the Chemical Examiner were tendered in evidence.

The petitioner denied the prosecution allegations and also led defence.

The recovery in the present cast is stated to have been effected on prior information. No independent witness was joined. The statement of HC Sukhdev Singh that he had sent for Sarpanch, Chowkidar and others and they had not joined, cannot be accepted as its face value. He claims have to sent a constable to summon them, but there is no statement of the constable recorded that the persons contacted by him refused to join. It becomes difficult to accept this explanation.

The Act provides for a stringent sentence for the offence of dishonour of illicit liquor. To base a conviction, more reliable evidence should be expected. The officer who headed the raiding party was a perty police official and in the absence of independent corroboration, it shall be unsafe to base a conviction on the evidence on record.

The affidavits of the Police Officials Ex. PE and PF are not properly sworn. It is not specified as to which part of the statements in the affidavits is verified on the basis of knowledge and which on the information received by the deponent. Both these affidavits have been verified on the basis of knowledge and information. Such affidavits cannot be accepted as legal evidence. In support of this proposition a DB judgment of this Court in The State of Punjab v. Partap Singh, 1978 CLR (Pb. and Hr.) 83, may be referred to, which was followed by Ujagar Singh, J. in Harjeet Singh v. The State of Haryana, 1987(2) Recent CR 217 . I also endorse the above view. The affidavits being not properly sworn have to be rejected and as such, evidence is wanting that the sample had remained intact till delivered in the office of the Chemical Examiner. The prosecution case must fail on that account also I hereby allow the revision petition and after setting aside the orders of the Courts below I acquit the petitioner of the charge. The fine if paid, be refunded to him.