Harbans Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

On 12.9.1984 Sub Inspector Prithipal Singh and Head Constable Sukhminder Singh, posted at Police Post Bullowal were patrolling the area in a Government jeep. When they reached Khatiala Sainian they received secret information against the petitioner. They then proceeded to village Nainowal Bet and summoned Bawa Singh Sarpanch of the village. At about 1.15 AM a raid was conducted at the house of the petitioner and he was captured redhanded while distilling illicit liquor by working a still, installed in the kitchen of his house. The still was cooled and dismantaled and articles of still were taken into possession vide recovery memo which included a drum containing about 50 kilograms of ''lahan''. There was some liquor in the receiver bottle out of which sample was separated in a nip. The sample, receiver bottle and drum which was used as a boiler were sealed. Case was got registered and later on contents of the drum were got tested from the Excise Inspector who reported that the drum contained lahan which was partly distilled and was fit for further distillation. After completion of the investigation, the petitioner was charged for an offence under Section 61(1)(c) of the Punjab Excise Act. He pleaded not guilty to the charge.

The prosecution examined Excise Inspector Dev Raj as PW1, Sub Inspector Prithipal Singh as PW.2 and Head Constable Sukhminder Singh as PW.3 in support of its case. Bawa Singh Sarpanch was given up but he appeared in defence of the petitioner. The trial court after appraising the evidence held the petitioner guilty and sentenced him to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 5000/. In default of payment of fine, he was to undergo further Rigorous Imprisonment for three months. Aggrieved by this judgment dated 6.6.1986 recorded by Chief Judicial Magistrate, Hoshiarpur, Harbans Singh preferred an appeal which was dismissed by the learned Additional Sessions Judge, Hoshiarpur. The petitioner has now filed this Revision Petition assailing his conviction and sentence.

I have heard Mr. R.P. Dhir, learned counsel for the petitioner and Mr. A.R. Sidhu, learned Deputy Advocate General Punjab and have perused the record.

The contention of the learned counsel for the petitioner was that the case against the petitioner was not proved beyond reasonable doubt. The only evidence in support of the prosecution version consisted of statements of the official witnesses. Although the prosecution alleged to have joined sarpanch of the village and his signatures too were obtained on the memos yet he had not witnessed the petitioner distilling illicit liquor by running a still in his house. Bawa Singh Sarpanch was examined in defence. He deposed that he was called from his house by the police and was told that some articles of still were recovered from the house of the petitioner. He was never taken along to the spot by the police nor anything was recovered in his presence. He only saw the articles of still lying in the jeep.

It is correct that Bawa Singh who was cited as a prosecution witness was given up on the ground that he had joined hands with the petitioner but testimony of Bawa Singh cannot be discarded on that sole ground. Bawa Singh appeared in the witness box as a defence witness and the prosecution had ample opportunity to crossexamine him and shake his credit but no question was put to this witness in his crossexamination assailing the version given by him in his examination in chief. Nothing was brought on record to show as to how he was aligned with the petitioner and was out to support him irrespective of his guilt or innocence. The testimony of the official witnesses thus has been belied by the only independent witness alleged to have been joined in the case.

It was next urged on behalf of the petitioner that the testimony of the official witnesses was also materially discrepant and no reliance could be placed on the same. Although all the witnesses were examined on different dates yet they were not consistent with respect to the fact as to when the contents of the drum were got tested from the Excise Inspector and at what place. According to Excise Inspector Dev Raj, he had gone to Police Post Bullowal on the next day of the raid where the drum was produced before him which was sealed with the seal bearing inscription P.S. He broke open the seal and after testing the contents of the drum put his own seal bearing inscription D.R. The Investigating Officer Prithipal Singh on the other hand stated that on his return to the Police Station Excise Inspector met him near the gate of the Police Station who tested the contents of the drum. After the test he sealed the drum with his own seal bearing inscription P.S. and the seal after use was handed over to Sukhminder Singh. Head Constable Sukhminder Singh still gave a different version and deposed that Excise Inspector Dev Raj met them on the way who broke open the seal of the pitcher, tested its contents, made his report. and then resealed the pitcher with his seal DR. In this way all the witnesses were inconsistent with respect to the test of the contents of the drum and their testimony was doubtful. I find that this contention of the learned counsel is quite tenable. All the three official witnesses were examined on different dates but still their testimony was materially discrepant on one point. Normally such discrepancy may not go to the root of the case but keeping in view the circumstances of this case that the only independent witness has not supported the prosecution case and discrepancy was found in the statements of the witnesses who were literate, the same assumes importance and renders the case of the prosecution as suspicious. The conviction of the petitioner, therefore, cannot be maintained on the basis of evidence on record.

For the reasons recorded above, I accept this Revision Petition, set aside the conviction and sentence awarded to the petitioner and acquit him of the charge.