Jagtar Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

Jagtar Singh has filed this Revision Petition against the judgment dated 20.5.1985 recorded by Shri S. K. Chopra, learned Additional Sessions Judge, Hoshiarpur whereby appeal filed by Jagtar Singh against his conviction in a case under section 61(1)(c) of the Punjab Excise Act, was a dismissed and his conviction as well as the sentence imposed upon him was confirmed.

Briefly stated the prosecution case was that on 1.1.1982 Police and Excise officials went to village Talwandi Dadian on receipt of general in formation where several raid parties were formed. One of those parties was headed by Sub Inspector Harish Kumar and included Excise Inspector Satpal Singh. The party tried to join independent witnesses from the village but none agreed to be associated. On seeing the smoke coming out from the `sarkundas'' the party proceeded towards a water channel where illicit liquor was being distilled by the petitioner. He was apprehended still was cooled down and dismantled and articles of still were taken into possession, which included a drum boiler and another drum containing about 100 kilograms of `lahan''. The contents of the drums were tested by Excise Inspector Satpal Singh who found the same to be lahan fully fermented fit for distillation. Lahan in the boiler drum was partially distilled. A case was got registered against the petitioner. After completion of the investigation the petitioner was tried for an offence under section 61(1)(c) of the Punjab Excise Act. After trial he was held guilty by Shri Charanjit Jawa, the learned Judicial Magistrate 1st Class, Dasuya vide his judgment dated 1.8.1984 and was sentenced to Undergo Rigorous Imprisonment for one year and to pay fine of Rs. 5000/. In default in payment of fine he was further sentenced to undergo Rigorous Imprison for two months. Against this judgment recording his conviction an appeal was preferred which was dismissed. Hence this Revision Petition was filed.

Shri A.S. Kalra, learned counsel for the petitioner contended that the prosecution case rested only on the testimony of two official witnesses namely Sub Inspector Harish Kumar and Excise Inspector Satpal Singh The police party had received general secret information and had gone for conducting excise raids but no genuine effort was made to join any independent witness from village Dadian or any other place while proceeding to the spot. In these circumstances the conduct of the Investigating Officer could not be considered above board and his testimony did not inspire conviction. I find merit in this contention of the learned counsel. There is no dispute that testimony of an official witness cannot be rejected simply on account of his official status and his evidence is to be treated at par with the evidence of any other witness. But when the Investigating Officer has time and opportunity to associate independent witnesses and still does not take anyone into confidence then implicit reliance cannot be placed on his evidence and that of other officials witnesses. The Investigating Officer in this case admitted that while going to village Talwandi Dadian one has to pass through three villages. They had gone by a thoroughfare but no body was asked to joint the party on the way. No effort was made to joint any person from the three villages through which the police party had passed. The explanation putforth by the Investigating Officer that he, tried to joint public witnesses from village Talwandi Dadian but none was willing to joint does not inspire conviction. He was unable to give the name of any person who was contacted but refused to be associated. This fact was also not mentioned in the `ruqa'' or any other document and it appears to be an afterthought. In the case of Rup Chand Versus State of Haryana, 1990(1) C. L. R. 69 it was held :

"it is well settled principle of law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.

Had it been a fact that the witnesses from the public had refused to join the investigation the Investigating Officer must have noted down their names and addresses etc. and would have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."

The facts of the above mentioned case are similar to the present case. Mere statements of two official witnesses who were interested in the result of the case and in the success of their investigative efforts are not enough, to sustain the conviction of the petitioner by holding that the caseagainst him was proved beyond reasonable doubt. The very conduct of the Investigating officer rendered the case suspicious.

For the foregoing reasons. I acquit the petitioner of the offence with which he was charged by giving him benefit of doubt. The judgment and order of conviction of the learned courts below are set aside. The amount of fine if paid be refunded to the petitioner. The Revision Petition is allowed accordingly.