Mastan Singh vs State of Punjab

K.S. Bhalla, J.

Mastan Singh was prosecuted on the allegation that on 18th March, 1981, S.I. Madan Gopal of Police Station Bagha Purana raided and apprehended him within the area of Sem Nullah accompanied by Excise Inspector Bal Kishan and other police officials while distilling illicit liquor by means of a working still. The still was dismantled and its various component parts were taken into possession by the Sub Inspector. The trial before SubDivisional Judicial Magistrate, Moga, resulted into conviction of Mastan Singh under section 61 (1)(c) of the Punjab Excise Act and he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/ in default of payment of which fine he was directed to suffer rigorous imprisonment for a further period of three months vide his judgment dated 25th February, 1934. Appeal directed against that judgment was held to have been disposed of by Additional Sessions Judge, Faridkot, vide his judgment dated 23rd February, 1985, whereby conviction and sentence of fine were maintained but that of imprisonment was reduced to one year from two years. This revision petition is directed against that judgment of the Additional Sessions Judge, Faridkot.

Perusal of the judgment of Additional Sessions Judge, Faridkot, makes it clear that he did not go through the record of the case. He has mentioned in para No. 2 of his judgment that the file of the trial Court bad been consumed by fire in the record room and that the file received after reconstruction from the lower court was without statements of the witnesses.Hearing of appeal without going through the record of the case by itself is an illegality. It is settled principle of law that the Appellant Court has to make independent appraisal of evidence for coming to the conclusion with regard to conviction or acquittal of an accused rather it is his valuable right granted by law. Sections 372, 374 (3), 381, 385, 386 and 387 of the Code of Criminal Procedure, 1973, are the relevant provisions governing such appeals. It is clearly mentioned in subsection (2) of section 385 of the said Code that the Appellate Court shall then send for the record of the case if such record is not already available in that court and hear the parties. That mandatory provisions of law was required to be followed as the appeal was not dismissed summarily and it was not only with regard to the extent or the legality of the sentence but instead of conviction was also challenged by the appellant before the Sessions Judge, that is, the revision on petitioner.

The learned Additional Sessions Judge skipped over the situation remarking that the absence of the copies of the statements of the witnesses did not affect the case of the prosecution on merit as the learned counsel for the appellant had simply contested the appeal on point regarding non association of independent witnesses. I am afraid the conclusion drawn by him is not the correct position. First of all, reliability of the official witnesses has to be appreciated after scanning their evidence by the Appellate Court. Mere production of witnesses is not sufficient to prove the guilt of a person. On the other hand, for coming to a conclusion against the liberty of a citizen it is incumbent upon the Court to see that allegation of the prosecution is properly proved. That was possible only if the Additional Sessions Judge had come to the conclusion that the. deposition of the official witnesses inspired his confidence and they could be relied upon to jump at the conclusion of commission of the offence by the accused. The fact whether it was necessary to associate independent witnesses or not as also to be appreciated from the facts and circumstances deposed by the witnesses. for instance, only the evidence led by the prosecution on the record could reflect about the availability of non official witnesses at the relevant time or whether a genuine attempt for their association was made or not. The distance of the place of recovery from the place where secret information was received too could be found from the evidence placed on the record in case the same was brought out in the statements to of the witnesses. Thus, for proper appreciation of the conduct of the investigating officer for association or non association of independent witnesses, it was necessary for the Appellate Court to go through his statement; particularly from the angle of facts elicited on the record through acid test of cross examination. The ruling cited by the Additional Sessions Judge, in his judgment, that is, The State of Punjab v. Ram Parkash, 1978 Cri. L.J. 601, also embraces the conclusion that nonassociation of independent witnesses amounts to a suspicious circumstance which would require the Court to scrutinise the prosecution evidence With More caution and care, although it is further remarked that in no case the same by itself can warrant the discredit of the prosecution case. In the absence of prosecution evidence the requisite scrutiny could not be made and in fact has not been made the Appellate Court. In para No 7 of his judgment. in a bid to show the compliance of subsection (2) of section 385 of the Code of Criminal Procedure the learned Additional Sessions Judge has remarked that he bad heard the arguments of the learned counsel for the appellant, Public Prosecutor for the State and bad gone through the record. I fail to understand what was the record, which was gone through by the Additional Sessions Judge in the absence of statements of the witnesses, which alone was the real record and primarily admissible evidence.

For conviction under section 61 (1)(c) of the Punjab Excise Act for distillation by means of a working still or the possession of such still, its working is also required to be proved. The Court cannot possibly be fixed with the knowledge of actual working of a still or process of The same is required to be candidly proved, particularly as minimum sentence is provided for such conviction. In the absence of evidence it cannot be said if the same was properly proved. I here is neither any discussion in the judgment of the trial Court to show if the actual process of distillation was going on at the time of alleged raid and apprehension. To come to the conclusion that the articles recovered from the revision petitioner were lahan and illicit liquor so as to make him criminally liable as well, the evidence of the expert witness was required to be scrutinised. In the absence of the statement of Excise Inspector it can neither be said with certainty if proper testing was done and the report was based on scientific conclusions and logical reasoning The Additional Sessions judge without appraisal of his statement, could neither come to the conclusion that his report was properly proved.

In the above said premise, judgment of Additional Sessions Judge cannot be sustained. The proper course for him was to get the evidence reconstructed some how or the other if he wanted to maintain conviction. However, no such course need now be tried ; particularly as the revision Petitioner is facing the music of criminal trial for the last more than six years and he also remained in jail for about a month either as under trial or a convict undergoing sentence. This revision petition is therefore allowed, conviction and sentence of revision petitioner Mansa Singh are set aside and he is acquitted of the charge against him.