Mahla Singh vs The State of Punjab

Sukhdev Singh Kang, J.—Mahla Singh has filed this revision against his conviction and sentence by the Courts below.

Briefly stated, the facts, as alleged by the prosecution, are that on July 4, 1976 at about 7.30 A.M. a Police Party headed by Bhallan Singh Head Constable and accompanied by Nagore Singh Head Constable and a few Constables of Police Station Sardulgarh, was returning from village Jhanda Khurd. When they reached near the bus-stop of village Jhanda Kalan, they saw the accused-petitioner coming from the side of the link road. On seeing the police party he tried to go back. This aroused the suspicion of the police party. He was stopped. His person was searched and he was found carrying a rubber tube concealed in a gunny bag and containing illicit liquor. A sample was taken out of this liquor. The remaining liquor was transferred into 13 bottles. The sample as well as the bottles of liquor were sealed. A case was registered against the accused-petitioner. On receipt of the report of the chemical examiner, that the sample, sent to him, contained illicit liquor, the accused-petitioner was challaned. He was tried and convicted by the learned trial Court u/s 61(1)(a) of the Punjab Excise Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-. Dissatisfied with this order, the accused filed an appeal and the learned Sessions judge affirmed the findings of the learned trial Magistrate and dismissed the appeal. Hence the present revision petition.

Mr. Pawan Bansal, Learned Counsel for the petitioner, has argued that on that very day after the alleged recovery of the illicit liquor, Lahan was alleged to have been recovered at the instance of the petitioner. The petitioner was challaned for the possession of illicit liquor in this case. He was also challaned in the other case for the possession of Lahan. According to the Learned Counsel, in view of the provisions of Section 218 of the Code of Criminal Procedure, the petitioner could not be tried in this case. There is no merit in this contention. The illicit liquor is alleged to have been recovered first of all and the petitioner had been tried for that offence. There is no bar for the trial of the petitioner for this offence. If any argument was available, at all, to the petitioner that could be regarding the second case. In that case the accused-petitioner has already been acquitted.

Mr. Bansal then argued that in this case the prosecution has failed to connect the samples alleged to have been taken out of the illicit liquor with the report of the chemical examiner. According to him, Constable Ganda Singh has sworn in an affidavit to the effect that on 11th August, 1976 he deposited the samples of this case in the office of the chemical examiner at Patiala. He has mentioned therein that the samples were handed over by the deponent to the chemical examiner. There is merit in this contention of the Learned Counsel. The prosecution has failed to connect the alleged samples to the report of the chemical examiner. The affidavit of Ganda Singh does not mention that he had handed over the samples of this case to the chemical examiner Re has only stated that he deposited the samples in the office of the chemical examiner. The prosecution has not cared to examine the official in the office of the chemical examiner to whom the samples had been handed over. They have not put in the affidavit of that official. The sample in this case reached the office of the chemical examiner on 11th August, 1976, whereas the report of the chemical examiner is dated 25th October, 1976. It is not proved by any evidence that during this interregnum the sample was not tempered with by any body. So the prosecution has not been able to establish that the samples alleged to lave been taken out of the illicit liquor, alleged to have been recovered from the possession of the petitioner tally with the report of the chemical examiner. In the absence of that evidence, there is no proof on the file that articles recovered were illicit and contraband and their possession was illegal.

In view of the above position, I allow this revision petition, set aside the conviction and sentence passed against the petitioner and acquit him. Fine, if paid, shall be refunded to the petitioner.