Harnam Singh vs State of Punjab

A.S. Nehra, J.

Petitioner was convicted under Section 61(1)(a) of the Punjab Excise Act, 1914 on 6.6.1986 by the Judicial Magistrate Ist Class, Zira and sentenced to undergo R.I. for a period of six months and fine of Rs. 1000/ and in default of payment of fine, he was further ordered to undergo R.I. for a period of two months. The appeal filed by the petitioner against his conviction and sentence was dismissed on 20.3.1987 by the Additional District Judge, Ferozepur. Hence, the revision petition.

Briefly narrated, the facts of the case are that on 23.2.1983, ASI Krishan Saroop alongwith ASI Gurdial Singh and few constables including Harbhajan Singh, was going to village Daulewala from village Sherpur Taiban, on patrol duty. When the police party reached near the crossing of the road in the area of village Sherpur Taiban, accused Harnam Singh was seen coming there on a mare from the side of Kot Ise Khan. He was apprehended on the basis of suspicion and on search, a tube containing illicit liquor, which was tied to the seat of the mare, was recovered from him. A sample of 180 MLs. was drawn from the tube and the remaining liquor was measured which came to the capacity of 70 bottles. The residue bulk of liquor was again transferred to the same tube. Sample parcel and the tube were sealed with the seal of ASI Krishan Saroop bearing letters ''KSS'' and taken into possession vide recovery memo, Ex. PD, which was attested by ASI Gurdial Singh. On the basis of said recovery, ASI Krishan Saroop sent ruqa, Ex. PE, to Police Station, Zira, on the basis of which formal FIR Ex. PE/1 was registered. Thereafter, he prepared rough site plan, Ex. PE, indicating the place of recovery, recorded the statements of the witnesses and on return to police Station, Zira, deposited the case property with MHC Jagir Singh with seals intact. On receipt of report of Chemical Examiner, Ex. PA, and after necessary investigation into the case, the accused was challaned.

At the trial, prosecution examined ASI Gurdial Singh (PW1) and ASI Krishan Saroop (PW2) and tendered in evidence report of the Chemical Examiner, Ex. PA and affidavits Ex. PB and PC of MHC Jagir Singh and Constable Roshan Lal respectively.

When examined under Section 313, Criminal Procedure Code, accused denied all the allegations of the prosecution and pleaded his false implication. The accused, however, did not lead any defence.

The prosecution case has been fully supported by ASI Gurdial Singh (PW1) and ASI Krishan Saroop (PW2). Both these witnesses have given precise detailes of the manner in which the recovery was effected from the accused and they have mutually corroborated each other on material particulars.

Learned counsel for the petitioners assailed the prosecution case on the ground that inspite of the fact that independent witnesses were available but no attempt was made by the prosecution to join them in the investigation. He further contended that the testimony of the official witnesses suffered from discrepancies and, as such, the same could not be safely relied upon.

After hearing the learned counsel for the parties, I find no merit in the submissions made by learned counsel for the petitioner. Both the witnesses have categorically stated that the police party was going to village Daule Wala on patrol duty and when it reached near the crossing of village Sherpur Taiban, they saw accused Harnam Singh coming on a mare from the side of Kot Ise Khan. Thus, the police had no prior information with them against the accused. In other words, it was a chance recovery and there was no time with the police to join independent witnesses. So, in these circumstances, nonjoining of independent witnesses is not fatal to the prosecution case.

I have also perused the testimony of ASI Gurdial Singh (PW1) and ASI Krishan Saroop (PW2) and find that but for two or three minor discrepancies, the witnesses have consistently deposed on material points. The only discrepancy which appears in the case is that according to ASI Gurdial Singh (PW1), the accused was released on bail at the spot but according to ASI Krishan Saroop (PW2), the accused was admitted to bail in the revenue limits of Zira. This sole discrepancy in the testimony of the witnesses, who were examined after lapse of considerable time, assumes no importance. The alleged recovery was effected on 23.2.1983 and ASI Gurdial Singh was examined on 27.10.1984 i.e. after the expiry of one year and eight months, whereas ASI Krishan Saroop (PW2) was examined on 1.9.1985 i.e. after the expiry of two years and about seven months. When the witnesses are examined after such a long lapse of time, such discrepancies are bound to occur.

Learned counsel for the petitioner further contended that the seal on the tube was found in broken condition and, therefore, the prosecution had failed to establish the identity of the case property.

I have given my thoughtful consideration to the submission made by the learned counsel for the petitioner. ASI Krishan Saroop (PW2) stated in his crossexamination that the seal of the tube was in broken condition. It was also observed by the Trial Court that the impression of the seal was not legible. The trial Court has, however, further observed that the possibility could not be ruled out that the seal on the tube was broken on account of the shifting of the case property while it was lying in the Malkhana. The identity of the case property was, however, duly established from the particulars of the case written on the chit which was pasted on the tube and the same was found intact. So, the prosecution has fully established the identity of the case property. The prosecution case was not assailed further on any other ground by the learned counsel for the petitioner. Moreover, the plea of false implication of the petitioner by the police after he was arrested from his house, also does not inspire confidence as no attempt was made by the accused to examine any person of his village or any member of his family in support of his plea.

Lastly, the learned counsel for the petitioner argued that in view of the tender age of the petitioner, he should be given benefit of Section 360, Criminal Procedure Code, read with Section 4 of the Probation of Offender Act.

I have considered the submission of the counsel for the petitioner. However, the accused is not entitled to any relief because of two reasons. Firstly, he has been shown to be a previous convict in four cases and, secondly, the recovery of illicit liquor which was effected from him, is quite heavy i.e. to the capacity of 70 bottles. The recovery of such a heavy quantity of illicit liquor itself shows that it was kept by him for commercial purpose.

In view of the above discussion, there is no merit in the revision petition and the same is hereby dismissed.