Harbhajan Singh vs State of Haryana

G.S. Chahal, J.—Harbhajan Singh was convicted of an offence under Section 61(1)(c) of the Punjab Excise Act by the Court of Shri Inderjit Mehta, JMIC. Panipat and sentenced to undergo RI for six months and a fine of Rs. 500/ and in default of payment thereof, to further undergo two months'' imprisonment, for having worked on a still for distilling illicit liquor. An appeal referred by the petitioner was heard by Shri B.R. Gupta, Additional Sessions Judge, Karnal and vide judgment dated 5.6.1985 the same was dismissed. The petitioner has now come up in revision, against the judgment, to this court.

The brief facts leading to the prosecution of the petitioner may be stated. On 11.5.1984, ASI Ramji Lal along with two constables was on patrol duty and excise checking when he received secret information that the petitioner was distilling illicit liquor and could be apprehended. He sent Ruqa, Ex. PB to the police station and formal FIR, Ex. PB/1 was registered. He then carried a raid and the petitioner was found having fixed a still and distilling illicit liquor.

After cooling the liquor, the still was dismantled and sample was drawn from distilled liquor. The sample along with remaining liquor and boiler drum was sealed and taken into possession vide recovery memo, Ex. PC. Site plan, Ex. PD was also prepared. The contents of the drum were examined by Baljeet Singh, AETO and the sample of liquor was sent at the Chemical Examiner and after obtaining his report that the Sample was illicit liquor, the petitioner was sent for trial.

The prosecution relied on affidavits of HC Om Parkash, Ex. PF and HC Ram Mohan, Ex. PG. I, however, find that both the affidavits are not properly sworn. The deponent had to verify as to which part of the affidavit was true to his knowledge and as to which part on the basis of information received .

In Harjeet Singh v. State of Haryana, 1987(2) Recent CR 217, Ujagar Singh, J. as his Lordship then was while dealing with similar situation, observed as follows :

"The verification of the affidavit is required to be either on knowledge or on information and it should show specifically which part of the affidavit is verified on deponent''s knowledge and which part is verified on deponent''s information. The whole of the affidavit in this case has been verified on the basis of knowledge and information. Such affidavit cannot be taken into consideration. In support, a Division Bench judgment of this Court in The State of Punjab v. Partap Singh, 1978 Clr (Pb. & Har.) 83 is referred to ".

I endorse the above observation. The affidavits, Ex. PF and PG being not properly sworn, do not form legal evidence and as such have to be rejected. When this evidence is excluded, there is nolegal evidence to show that the boilerdrum and the same of the liquor remained in tact till examined. The petitioner on this basis is entitled to benefit of doubt. I hereby accept the revision petition and after setting aside the judgment of the courts below, acquit the petitioners by allowing him benefit of doubt. Fine, if paid, will be refunded.