Jarnail Singh vs The State of Punjab

B.S. Yadav, J.—The prosecution story in brief is that on January 21, 1976, A.S.I. Pritam Singh (P.W. 3) while posted in Police Station Saddar, Batala, had gone to village Bhagowal for excise raid. Some officials and Mohan Singh peon of the Excise Department, were with him. On reaching village, the respectable persons were summoned but no one joined the party. Jarnail Singh petitioner was found present at his dera. On interrogation the accused disclosed that he had kept burried four drums of lahan along the parliana of his sugar-cane crusher ; that about which he had the knowledge and that he could get the same recovered. Thereafter, Jarnail Singh got received 4 drums, each containing 150 kgs of lahan from under the earth. The drums, which are Exhibits P. 1 to P. 4, were sealed and taken into possession, after preparing recovery memo Exhibit PD Pritam Singh (P.W. 3) also sent ruqa Exhibit PD to the police station, on the basis of which formal first information report Exhibit PD/1 was recorded. The drums were brought in the limits of village Bhagowal, where Amar Chand Excise Inspector (P.W. 1) tested the same on the same day after breaking the seals. He found the contents of the four drums to be lahan which was duly fermented and fit for distilling illicit liquor, vide his report Exhibit PA. After necessary investigation the accused was charge-sheeted.

The accused when examined u/s 313 of the Code of Criminal Procedure, denied the prosecution allegations and pleaded that he had a dispute with A.S.I. Pritam Singh (P.W. 3) at the time the latter was conducting the search. Pritam Singh took four empty drums from some uninhabited place and planted them on him. He further stated that he is joint with his sons and their dera was joint.

In defence the accused examined Onkar Nath (D.W. 1) who has supported the defence version. Judicial Magistrate 1st Class, Batala, who tried the case, believed the prosecution evidence and convicted Jarnail Singh u/s 61(1)(a) of the Punjab Excise Act, and sentenced him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1000/-. It was also ordered that in default of payment of fine, he shall undergo further rigorous imprisonment for six months.

The accused filed an appeal which was heard by Mr. H.S. Bakhshi, Additional Sessions, Judge, Gurdaspur, who dismissed the same. Feeling aggrieved, the accused has come to this Court in revision.

The Learned Counsel for the petitioner vehemently argued that in the present case the petitioner had not been arrested before the alleged interrogation was carried and, therefore, it cannot be said that the alleged disclosure statement was made by the accused while in custody. On the basis of these facts he argued that the said statement which amounts to confession, made before the police officials, is not admissible in view of section 25 of the Evidence Act. This argument appears to have force. Though for taking a person in custody physical arrest is not necessary yet the person has to be told that he should presume himself to be in custody. The relevant portion of the statement of Pritam Singh (P.W. 3), when translated into English, some what reads as follows :--

Jarnail Singh accused was present at his Dera. On interrogation he disclosed that he had kept buried four drums full of lahan along the Parhana of his sugar-cane crusher.

From this version of Pritam Singh (P.W. 6) it cannot be imported that before interrogating the accused, he had formally taken the accused in custody. If that statement of the accused goes, the bottom of the prosecution case is knocked down. The accused cannot be held to be in conscious possession of the drums of lahan. His sons are joint with him.

In the present case no independent witness was joined during the raid and the reason given is that no person from the village was willing to be associated in the raid. Therefore, we have to carefully examine the statements of Mohan Singh (P.W. 2) who is the peon of the said department and Pritam Singh (P.W. 3). I am of the opinion that there are material discrepancies in the statements of these witnesses. Mohan Singh (P.W. 2) has stated that small portion of the upper side of the drums was cut and the opening of each drum was tied. Pritam Singh (P.W. 3) has stated that the drums were hurried in living position and were torn from the middle and their openings were tied with the pieces of gunny bags. Thus these witnesses are not unanimous on the point whether the openings in the drums were at the top or on the sides.

A.S.I. Pritam Singh (P.W. 3) has stated that the case property was brought from the sugar-cane crusher on the rerha and thereafter the same was brought to the police station in a Government vehicle. He has also stated that the lahan of the drums was tested by Excise Inspector Amar Chand (P.W. 1) after those had been unloaded from the rerha. Amar Chand (P.W. 1) has also stated that all the drums were lying on one side near the village Gurdwara when he tested them. However Mohan Singh (P.W. 2) has stated that he does not remember if the drums had been unloaded from the rerha after reaching village Bhagowal. If the drums had been unloaded on reaching village Bhagowal then Mohan Singh (P.W. 2) must have assisted the party in unloading them because according to him all the members of the party had assisted in loading them in the rerha when those were first placed in it. Mohan Singh (P.W. 2) does not state that from village Bhagowal, the drums were brought to the police station in a Government vehicle. He has stated as follows :--

The property of our party was loaded on the rerha in my presence and we had reached the police station at about 4.00 or 4.30 P.M.

This witness has not admitted about the unloading of the drums from the rerha on reaching village Bhagowal. Therefore it must be presumed that the case property was brought to the police station on rerha. This discrepancy, therefore, is very material.

Hence in view of the above discussion, I hold that the prosecution has not been able to prove the case against the accused and, therefore, I accept the revision petition, and set aside the conviction and sentence of the petitioner. Fine, if paid, be refunded.