Hardeep Singh vs State of Punjab

K.K. Srivastava, J.

This revision is directed against judgment dated 13.9.1995 passed by the Additional Sessions Judge, Ferozepur dismissing Criminal Appeal No. 11 of 1994 filed by the revisionist against his conviction and sentence under Section 61(1)(a) of the Punjab Excise Act, 1914, ordered by Shri D.K. Monga, the then Sub Divisional Judicial Magistrate, Zira vide judgment dated 12.2.1994. The learned Sub Divisional Judicial Magistrate, Zira sentenced the petitioner Hardeep Singh to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for three months.

The case of the prosecution, stated briefly, is as under:

A.S.I. Rajinder Singh accompanied by other police officials and some officers of Central Reserve Police Force (for short C.R.P.F.) on 20.5.1986 at about 5.00 a.m. was present near the link road Basti Butewali in the area of village Behak Gujjran for patrolling and checking of bad characters. They spotted a jeep No. GJH 1245 coming from the side of Makhu. The jeep was got stopped by the police party. It was being driven by one Harbans Singh while revisionist Hardeep Singh was sitting on the left hand side of the driver and another co accused Joginder Singh was sitting behind Hardeep Singh. One Nikka Singh (since deceased) was sitting behind the driver Harbans Singh on the rear seat. Harbans Singh was declared proclaimed offender while Nikka Singh died. Hardeep Singh and Joginder Singh were tried by the learned Sub Divisional Judicial Magistrate, Zira under Section 61(1)(a) of the Punjab Excise Act. According to the prosecution case, the police party, as aforesaid, searched the said jeep and recovered two rubber tubes each from the seats of Hardeep Singh and Nikka Singh. One rubber tube was recovered from the seat of Joginder Singh. Each of the tubes contained illicit liquor measuring 80 bottles. Samples of 180 mls. were separated and put in five nips. The tubes containing the remaining liquor were sealed with the seal of A.S.I. Rajinder Singh bearing letter ''RS''. The tubes were duly sealed. The sample nips also duly sealed and the jeep was taken into possession and a recovery memo Exhibit PA was prepared. Ruqa Exhibit PB was sent to the Police Station Zira where a formal FIR Exhibit PB/1'' was registered. During investigations rought site plan Exhibit PC was prepared. The samples were sent for analysis to the Assistant Chemical Examiner through the Government of Punjab, Bathinda who after testing the same found illicit liquor and prepared report Exhibit PD. After completion of the investigation, the Investigating Officer submitted a challenge against the revisionist and coaccused. As mentioned above, revisionist Hardeep Singh and coaccused Joginder Singh were chargesheeted under Section 61(1)(a) of the Punjab Excise Act. They pleaded not guilty to the charge and claimed to be tried.

The prosecution examined ASI Prem Singh, ASI Rajinder Singh, H.C. Hakam Rai and tendered affidavit Exhibit PF of constable Gurcharan Singh. Statement of the revisionist and coaccused were recorded under Section 313 Cr.P.C. Accused denied the prosecution evidence appearing against them and they pleaded innocence and false implication. They were called upon to lead evidence in defence but they did not lead by evidence in defence. Learned Sub Divisional Judicial Magistrate, Zira after hearing the arguments of the accused as also the Public Prosecutor believed the prosecution evidence and found the offence punishable under Section 61(1)(a) of the Punjab Excise Act established beyond shadow of reasonable doubt and consequently, he held Hardeep Singh and his coaccused Joginder Singh guilty of the said offence and convicted them thereunder. They were sentenced to undergo rigorous imprisonment of one year each and to pay a fine of Rs. 1000/ and in default to undergo rigorous imprisonment for three months. Feeling aggrieved against their conviction Hardeep Singh as well as Joginder Singh filed criminal appeals being Criminal Appeal No. 11/1994 and 15/1994. Both these appeals were dismissed by judgment dated 13.9.1995 by Shri L.R. Roojam, Additional Sessions Judge, Ferozepur. Feeling dissatisfied with the conviction and sentence as maintained by the appellate Court also, the revision petition was filed by Hardeep Singh.

Notice of the revision was served on the respondent. Learned DAG for the State of Punjab respondent appeared and contested the revision.

I have heard learned counsel for the revisionist and the learned DAG for the State of Punjabrespondent. I have perused the judgment of the learned Additional Sessions Judge passed in criminal appeal referred above as also the judgment passed by the learned Sub Divisional Judicial Magistrate, Zira.

Learned counsel for the revisionist addressed his arguments on the following points:

There is reliable evidence led by the prosecution to show that the revisionist Hardeep Singh had conscious possession of the illicit liquor said to have been recovered from below his seat from the jeep aforesaid.

The petitionerrevisionist has been convicted for the offence punishable under Section 61(1)(a) of the Punjab Excise Act only on solitary evidence of a witness.

Though independent witnesses were available around the place of recovery but none was included in the raiding party that took search of the jeep.

The case property that was produced in court did not have FIR Number and the number of Malkhana where these were allegedly placed.

The affidavit of the constable, referred to above, is defective and not in accordance with the provisions of Section 277 Cr.P.C. The verification of the affidavit is also defective inasmuch as the verification of the contents of the affidavit has been made on personal knowledge as well as information received.

Lastly, the learned counsel for the revisionist argued that since it is the first offence of the revisionist for which he has been convicted and looking to his age which at the time of occurrence was about 25/26 years i.e. in May 1986, he should be extended the benefit of Section 4 of Probation of Offenders Act and should not be sent to jail to serve out the sentence awarded to him.

The learned trial Magistrate has after discussing the evidence of the prosecution witnesses Rajinder Singh and Hakam Rai and taking into consideration the recovery of the illicit liquor made from the jeep where the petitionerrevisionist, along with others, was sitting, held that the petitioneraccused was in possession of the illicit liquor that he was fully conscious of the presence of illicit liquor that was being carried in the jeep. After considering the evidence of the prosecution witnesses at length the trial Magistrate believed their evidence and repelled the arguments raised on behalf of the accusedrevisionist for not placing reliance on their evidence. The learned trial Magistrate also considered that it was a case of heavy recovery of illicit liquor and the recovery could not be disbelieved only on the ground that there was some deficiency in the measurement of the liquor at the time these tubes were produced in Court. The reasons given by the learned Magistrate was that the liquor is capable of being evaporated. He also held that it was possible that there might be some leakage in handling these tubes. The learned appellate Court reappraised the evidence of the prosecution and came to the conclusion that the rubber tubes containing illicit liquor recovered from the accused were quite heavy and big objects and were not concealed and packed in gunny bags and the same were visible and therefore, it could not be said that the appellants/accused were not in conscious possession of the rubber tubes containing illicit liquor. He upheld the finding in this regard recorded by the learned trial Magistrate. I do not find any legal infirmity in the appreciation of the evidence of the prosecution witnesses. Therefore, there is no substance in the submission of the learned counsel for the revisionist in so far as the first ground of arguments is concerned.

Now coming to the second submission regarding the conviction based on solitary evidence, it may be pointed out at the every outset that the Evidence Act does not lay down any number of witnesses required to prove a particular fact. It is the reliability and quality of the evidence that is led by the prosecution that is to be considered. Apart from it, the two Courts below have after discussing the evidence of the prosecution witnesses found the evidence credible and I do not find any valid reasons to hold that the Courts below have gone wrong in law in appreciating the evidence of the prosecution witnesses. The learned appellate Court considered this aspect and the has rightly held that the public servants must be presumed to act honestly and consciously had it would be basically wrong without cogent ground to consider them unworthy witnesses in respect of their capabilities in performance of their officials duties merely because of their officials status. He further held that unless the evidence is considered to be suspicious, conviction of the accusedrevisionist cannot be sustained on the statements of the official witnesses, and the presumption that a person acts honestly applies as much in favour of the police officer as of other person and it is not a judicial approach to distrust and suspect him without good ground. He placed reliance in this regard on the judgment reported in the State of Punjab v. Rameshwar Dass, 1975 PLR 195. He also cited other judgments Ahir Raja Khima v. State of Saurashtra, AIR 1956 SC 217; Joginder Singh v. State of Punjab, 1981 CR Cases 236; Harbhajan Singh and another v. State of Punjab, 1981 CC Cases 261 and Atar Singh v. State of Punjab, 1985 RCC 286. This Court in revision will not enter upon the reappraisal of the evidence of the prosecution witnesses. There is no such law that evidence of a solitary witness is not worthy of being relied upon in convicting an accused. Consequently, the second argument raised by the learned counsel for the revisionist is devoid of any force.

The next point urged by the learned counsel for the revisionist is regarding the noninclusion of independent witnesses. Learned counsel contended that the occurrence in which the recovery of illicit liquor is said to have been made from the jeep, took place on a thoroughfare where independent witnesses could be available. It may be mentioned that the occurrence took place at about 5.00 a.m. on 20.5.1986. There is no evidence on record as would appear from the perusal of the judgment of the appellate Court as also of the trial Magistrate that there were independent witnesses available at that place but they were not included in the police party On the other hand, the learned appellate Court while considering this aspect held that simply because the place of recovery was a thoroughfare, did not enjoin any duty on the Investigating Officer that he should have waited for some independent witnesses and only then apprehended the accused. He held that it is common knowledge that independent witnesses whose testimony can inspire confidence of the Court and who can be considered to be respectables feel shy to become witnesses in police cases of such type of recovery of illicit liquor or narcotic etc. The fact, however, remains that the evidence on record did not indicate the presence of independent witnesses at the time of recovery and therefore, the noninclusion of independent witnesses will not be fatal to the case of the prosecution. The next submission of the learned counsel for the revisionist was regarding the case property produced in the Court being without FIR number and Malkhana number. The contention of the learned counsel for the revisionist is that the identity of the property, thus, was not established as the same is said to have been recovered from their possession. The learned appellate Court considered this aspect of the case and he agreed with the findings of the trial Magistrate that merely because during the crossexamination of Rajinder Singh, ASI it was brought out that the tubes when produced in the Court contained 30 to 40 bottles of illicit liquor and the absence of the chits of Malkhana number affixed on them at the time of the depositing with the MHC after about 71/2 years may be due to the fact that the storage and handling condition in the police Malkhana are generally not quite good. The statement of Rajinder Singh SI, PW was duly considered by the Courts below and it was noticed that he had made a categorical and consistent statement that the case property produced in the Court was the same that was recovered from the accusedrevisionist. The learned appellate Court placed reliance on a Division Bench case of this Court in Balraj v. State of Punjab, 1982 Cr.L.J. 374 which held that mere nonproduction of part or whole of the property would not by itself vitiate the conviction of the accused. He also considered the evidence of Hakam Singh HC, PW which corroborated the statement of Rajinder Sigh SI and it was found proved that the case property produced in the Court related to the property said to have been recovered from the possession of the accused from the jeep in this case. In revision, it is not proper to upset the finding of fact recorded consistently by the Courts below after appraisal of the evidence and also keeping in view the fact that the trial Magistrate had the advantage of watching the demeanor of the witnesses. I do not find any infirmity in law in the conclusion arrived at by the Courts below. Consequently, the submission on this point also is devoid of any substance.

The last argument advanced by the learned counsel for the revisionist was in respect of affidavit of a constable which was tendered by the prosecution to prove a formal evidence being defective regarding the verification of the affidavit and reliance was made on a judgment of this Court in the case of Balwinder Singh v. The State of Punjab, 1989(1) RCR 643 . It was a case of recovery of opium. The sample was sent to the Chemical Examiner and case property was deposited in Malkhana. Affidavit was filed in that case by the police officer stating that substance and sample of opium were deposited in store of police station and that sample was sent for chemical examiner. The affidavit was verified as being true on the basis of belief and knowledge but it was not verified as to which part of the affidavit was correct on the basis of belief and which was true on the basis of personal knowledge. In the instant case, the affidavit of constable Gurcharan Singh was filed which was marked Exhibit PE. The argument regarding the affidavit of the said constable, it appears, was not raised before the trial Magistrate. The learned appellate Court has noticed the various argument raised before him by the learned counsel for the appellant in para 7 of his judgment but no such argument in respect of the affidavit appears to have been noted there. In the grounds of revision this point was taken in ground No. ''g'' which runs as under:

"(g) That affidavit tendered by the Police Official is a defective one. The law laid down by our own High Court that the deponent should clearly mention that which part of the statement is true from his personal knowledge and which part is true as per the information derived from the official record."

Learned counsel for the revisionist has, thus, raised this point for the first time in revision. The affidavit is of the formal witness who deposed about the link evidence about which the verification was done from personal knowledge as well as belief. Looking to the facts and circumstances and considering that the matter was not raised before the Courts below and looking to the fact that the revisionist did not ask for the crossexamination of the Constable whose affidavit had been filed and accepted the same, the said plea cannot now be allowed to be raised in revision. The affidavit could be tendered in evidence only after the accused had dispensed with the cross examination and a formal statement of the witness. Looking to the heavy recovery of the illicit liquor and in the facts and circumstances of the case as mentioned above, I do not find any substance in the arguments advanced by the learned counsel for the revisionist.

In view of the foregoing discussion, the Courts below have rightly convicted the revisionist for the offence punishable under Section 61(1)(a) of the Punjab Excise Act. The quantum of sentence awarded so the revisionist under Section 61(1)(a) aforesaid cannot be said to be excessive. so far as the prayer for releasing the revisionist on probation is concerned, the learned D.A.G. for the State of Punjabrespondent has not opposed the same. Looking to the age of the revisionist and his antecedents, I deem it appropriate to extend the benefit of Section 4 of the Probation of Offenders Act to the revisionist. The revision in merit fails and is dismissed. The revisionist, it, however, given benefit of Section 4 of the Probation of Offenders Act and he is instead of being sent to jail to serve out the sentence awarded to him released on probation for a period of one year subject to his filing a personal bond for a sum of Rs. 8,000/ and one reliable surety in the like amount to the satisfaction of the trial Magistrate. Bonds shall be filed within a period of two weeks from the date of receipt of copy of this order. The revisionist shall during the period of probation keep peace and be of good behaviour. In the event of committing default of any of the conditions, the revisionist shall appear before the trial Magsitrate who shall send him to jail to serve out the sentence awarded to him.