Maghar Singh vs The State of Punjab

A.D. Koshal, J.—For being found in possession of 8 drums full of denatured spirit on the 1st of June, 1968, Maghar Singh, aged 28 years, a resident of village Ugoke in Police Station Barnala, was convicted by Shri Madan Lal Singhal, Judicial Magistrate 1st Class, Barnala, of an offence u/s 61(1)(a) of the Punjab Excise Act (hereinafter called the Act) and was sentenced to rigorous imprisonment for a year and a fine of Rs. 500/-, the sentence in default of payment of fine being rigorous imprisonment for three months. He instituted an appeal against the judgment of the learned Magistrate but the same was dismissed on the 5th of December, 1970, by Shri O.P. Aggarwal, Additional Sessions Judge, Barnala. That is why he has come up in revision to this Court.

The prosecution case may be stated thus. On the 1st of June, 1968, while going towards village Ugoke on patrol duty, Assistant Sub-Inspector Tara Singh (P.W. 5) received secret information at about 8 A.M. that the petitioner was in the habit of keeping and selling rectified spirit. The Assistant Sub-Inspector sent ruqa Exhibit P.C. to Police Station Barnala through Constable Mohinder Singh for registration of a case against the petitioner and himself formed a party of which, amongst others. Excise Inspector Nirmal Singh (P.W. 2), Excise Inspector Jaswant Singh (P.W. 3), Lambardar Hari Singh (P.W. 1) and Charan Singh (a prosecution witness who was given up at the trial as having been won over), apart from the Assistant Sub-Inspector himself, were members. This party started for village Ugoke on the way to which the petitioner was seen coming and was taken into custody. On interrogation he disclosed that he had kept concealed eight drums full of denatured spirit in a heap of gram husk lying in his field known as Kanjarwala. The disclosure was reduced to black and white and is contained in document Exhibit P.A. Thereafter the petitioner led the police party to the said field and from inside a heap of gram husk lying therein brought out eight drums full of denatured spirit. A sample of the contents of each drum was sealed in a bottle while seals were also put on the drums themselves thereafter.

On analysis the Chemical Examiner found each one of the samples to be consisting of denatured spirit (vide report Exhibit P.E.).

The Courts below found the depositions of Hari Singh (P.W. 1), Excise Inspector Nirmal Singh (P.W. 2), Excise Inspector Jaswant Singh (P.W. 3) and Assistant Sub-Inspector Tara Singh (P.W. 5), all of whom gave the same version of the occurrence as has been set out above, to be fully reliable. On those depositions, therefore, coupled with report Exhibit P.E. of the Chemical Examiner, was the conviction of the petitioner based. His stand that his person was secured by the police in the village in the presence of respectables was not found substantiated The three witnesses, namely, Kandhal Singh (D.W. 1), Lambardar Mit Singh (D.W. 2) and Ginder Singh (D.W. 3) who supported that stand, were considered unreliable.

Shri Harbans Lal, Learned Counsel for the petitioner, does not deny that alcohol is one of the ingredients of denatured spirit but he contends that spirit of that kind being unfit for human consumption is not an article the possession of which is punishable under the provisions of clause (a) of sub-section (1) of section 61 of the Act. For this contention he relies on the following definition of the expression "denatured" contained in clause (5) of section 3 of the Act:

''denatured'' means effectually and permanently rendered unfit for human consumption.

The contention is wholly without force in view of the other relevant provisions of the Act which are clauses (12-a) and (14) of section 3 and clause (a) of sub-section (1) of section 61 of the Act. These provisions may be reproduced here with advantage:

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(12-a) ''intoxicant'' means any liquor or intoxicating drug;

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(14) ''liquor'' means intoxicating liquor and includes all liquid consisting of or containing alcohol; also any substance which the State Government may by notification declare, to be liquor for the purposes of this Act;

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61(1) Whoever, in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act-

(a) imports, exports, transports, manufactures, collects or possesses any intoxicant; or

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shall be punishable for every such offence with imprisonment for a term which may extend to three years and with fine up to two thousand rupees and if found in possession of a working still for the manufacture of any intoxicant shall be punishable with the minimum sentence of six months imprisonment and fine of two hundred rupees.

Possession of an intoxicant is clearly an offence punishable under clause (a) reproduced above. Every liquor is an "intoxicant" within the definition of that expression as given in clause (12-a) of section 3 and "liquor", according to the definition given in clause (14) of section 3, includes all liquid consisting of or containing alcohol. Denatured spirit being admittedly a liquid containing alcohol, is a liquor and, therefore, an intoxicant, the possession of which (without a licence issued in accordance with the rules framed under the Act) is an offence punishable under clause (a) reproduced above. Whether or not an intoxicant is denatured is not a consideration which is relevant for the purpose of determining if its possession would be an offence under the said clause (a). I have thus has no hesitation in repelling the contention.

It is next contended by Shri Harbans Lal that Lambardar Hari Singh (P.W. 1), who is the only non-official Prosecution witness belongs to village Badhalwarh which lies at a distance of 15 miles from village Ugoke that no person from the locality in which the raid was conducted has come into the witness box to support the prosecution case and that that case should, therefore, be thrown out as unreliable. I do not find any force in this contention either. Lambardar Hari Singh (P.W. 1) no doubt does not belong to any place lying in the vicinity of Ugoke. He, however, claimed to have been present at the Ugoke Police Post from where, according to him, the Assistant Sub-Inspector joined him as a member of the police party. There is nothing extraordinary about this claim and in the circumstances in which the Assistant Sub-Inspector took him along, he must be regarded as a wholly independent witness who was interested neither in the prosecution nor in the petitioner. His word must, therefore, carry great weight and coupled with the depositions of the official witnesses, in my opinion, it clinches the issue against the petitioner the defence evidence produced on whose behalf I refuse to believe for the reasons given by the two Courts below.

The only other contention raised for the petitioner is that the sentence awarded to him is excessive. The quantity of the denatured spirit of which he was found in possession without a licence is no doubt large but there is nothing on the record to give an indication about its precise volume. All that can be made out is that it is eight drums full but the volume of each drum is not indicated anywhere. According to the Learned Counsel for the State, each drum should be presumed to have a capacity of four gallons, but I do not see on what principle of law or prudence such a presumption can be raised. In any case the petitioner is a first offender and I am inclined to take a more lenient view of the case on the question of sentence that has prevailed with the lower Courts. Accordingly I reduce the sentence to rigorous imprisonment for four months and a fine of Rs. 500/-, the sentence in default of payment of fine being rigorous imprisonment for three months. To that extent alone is the petition accepted, it being otherwise dismissed.