Harbans Singh vs State of Punjab

S.S. Grewal, J. (Oral)

This revision petition is directed against the order of Judicial Magistrate Ist Class, Muktsar dated l6th September, 1988 as. well as order dated 8th March, 1990 passed by learned Additional Sessions Judge, Faridkot, whereby the petitioner was convicted under Section 61 (1)(a) of the Punjab Excise Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/, in default of payment of fine he was further ordered to undergo rigorous imprisonment for three months.

In brief facts relevant for the disposal of this petition are that on 23rd June, 1987 Head Constable Surinder Singh along with other police officials including constables Sukhdev Singh and Ranjit Singh was on patrol duty. As the police party reached at a distance of about one furlong from the bus stand of village Enna Khera, the petitioner was seen coming from the opposite side. On seeing the police party he turned back. On suspicion he was apprehended and from his personal search a tube which he was carrying on his head was recovered. Sample pint was drawn from the liquor from that tube and the remaining liquor contained 191/4 bottles. After measurement, the illicit liquor was again transferred in the same tube. Both the sample pint and the tube containing illicit liquor were separately sealed with the seal bearing initials `SS'' and taken into possession through seizure memo. After completion of THE investigation and on receipt of the report of the Chemical Examiner the petitioner was challaned, tried, convicted and sentenced as indicated above.

Aggrieved against the order of conviction and sentence passed by the Courts below against the petitioner he has filed the present revision petition.

The learned counsel for the parties were heard.

Learned counsel for the petitioner submitted that the affidavit of MHC Balwinder Singh and constable Sukhdev Singh have not been properly verified. There is considerable merit in the contention raised by the learned counsel for the petitioner. The verification in respect of both the affidavits of the aforesaid two police officials is defective. There is no specific mention as to which part of para of the affidavit is true and correct on the basis of personal knowledge of the individual deponent, or, as to which particular para or part of the affidavit is true and correct as per the information and knowledge received by the deponents. In view of the facts that the verification of both the aforesaid two affidavits is defective, the same cannot be legally read in evidence. In the absence of such affidavits, the link evidence produced by the prosecution is incomplete. The prosecution has thus failed to prove that the liquor allegedly recovered from the possession of the petitioner was of illicit origin. The prosecution has failed to bring home the charge against the petitioner beyond reasonable doubt.

For the foregoing reasons giving the benefit of doubt to the petitioner he is acquitted of the charges framed against him and the order of conviction and sentence passed against him by the Courts below are set aside. The petitioner be set at liberty forthwith if not required in any other case. This petition is allowed accordingly.