Pargat Singh alias Pagga vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Accusedpetitioner stands convicted under Section 61(1)(a) of the Punjab Excise Act, 1914 (in short the ''Act'') for keeping in his possession 30 bottles of illicit liquor on 9.4.1985. He is sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 1000/ ; in default to further undergo R.I. for four months.

Skeletal facts of the case are that on 9.4.1985 head Constable Lajpat Singh along with Head Constable Jagir Singh and other police officials was on patrol duty on the bank of river Bias within limits of Harike. They found accused coming from the village Booh. On seeing the police party, as the accused tried to slip away, it aroused suspicion resulting into his apprehension and arrest. On his personal search, it was found that he was carrying one tube containing 30 bottles of illicit liquor. 180 M. Litre liquor was separated as sample. Remaining liquor and this sample was separately sealed with seal bearing impression ''LS''. Thereafter F.I.R. was registered. Sealed contraband was sent to the Police Station Malkhana on that very date. On 22.4.1985 this sample was taken by constable Vinod Kumar to Chemical Examiner. Till then it was kept in the custody of Moharrir Head Constable Dhir Singh. The Chemical Examiner also found the sealed sample with sample seal intact. He opined that it contained illicit liquor. His report is at Exhibit PD. After completing usual investigation, chargesheet was filed.

Accused denied the guilt and pleaded false implication though chose not to adduce any evidence.

During trial prosecution examined Head Constable Jagir Singh, Head Constable Lajpat Singh, tendered in evidence affidavits Exhibits PF and PE of constable Vinod Kumar and Moharrir Head Constable Dhir Singh respectively.

The learned Magistrate relying on the prosecution evidence held that the accused was in possession of 30 bottles of illicit liquor, and thus, he was convicted and sentenced, as stated above. Appeal preferred by the petitioneraccused was also dismissed.

Petitioner''s learned counsel submitted that the accused has been wrongly convicted by the courts below; link evidence is not proper and it does not connect the alleged recovery of illicit liquor with petitioneraccused. The statements of both the witnesses Jagir Singh and Lajpat Singh are full of inherent contradictions. No independent witness was joined at the time of search and seizure. The accused was prosecuted because of enmity with the police officials and his last contention is that the benefit of probation should have been given to the petitioneraccused.

The learned Assistant Advocate General Punjab supported the concurrent findings of the courts below and submitted that the accused has been rightly held guilty of the said offence.

From the statements of Head Constable Jagir Singh and Head Constable Lajpat Singh, it is evident that on 9.4.1985 when they were on patrol duty on the bank of river Bias in the Harike, they found the accused coming from the village Booh. As the accused tried to slip away, his conduct raised suspicion and he was immediately apprehended by the police party. The time of search was 1.40 P.M. As it was a chance recovery, no independent witness was joined. No suggestion was given to the witnesses that the independent witnesses were present at the spot but they were not joined. When police party apprehends any accused for any alleged offence under Section 100(4) of the Code of Criminal Procedure, they should join independent witness, but if independent witnesses are not available or if they decline to join the investigation, that is no reason to discard sworn testimony of the official witnesses. That circumstance only requires that the court should scrutinise the testimony of these official witnesses minutely. The learned Magistrate has minutely scrutinised the statements of both these witnesses and found them trustworthy. Accused has taken the plea of false implication, but no suggestion was put to these witnesses that they have any ulterior motive or animus to rope him in this offence. The only contradiction pointed out is that they are not consistent on the point as to by which article the liquor was weighed. This does not amount to a contradiction. It is a mere discrepancy which is bound to occur if the witnesses are examined after a lapse of many months. Memory of such witnesses may fail on such minute details of recovery.

The second contention is that the link evidence is not proper. 30 bottles of illicit liquor were seized from the possession of the accused by Head Constable Lajpat Singh PW2 in the presence of Head Constable Jagir Singh PW1. On the date of seizure the sample was separated and remainder were duly sealed and were deposited in the police station Malkhana. Both the affidavits were read over to me during arguments. Moharrir Head Constable Dhir Singh''s affidavit is produced at Exhibit PE. In this affidavit he has testified that on 9.4.1985 Head Constable Lajpat Singh deposited in the Malkhana the sealed sample as well as the remaining liquor, which was in his custody till 22.4.1985. During this period the seized articles were not tampered by anybody. On 22.4.1985 he gave sample to constable Vinod Kumar to be produced before the Chemical Examiner. Vinod Kumar constable in his affidavit Exhibit PF has stated that on 22.4.1985 this duly sealed sample was given to him by Head Constable Dhir Singh. He took it to the office to be further endorsed for chemical examination. Thereafter on that very date he produced the sample before the Chemical Examiner. From the Chemical Examiner''s report Exhibit PD, it is evident that the seal on the sample was found intact and tallied with the sample seal sent along with the sample. Thus, in my considered view, there is no reason to hold that the link evidence is not proper and does not connect the accused with the recovery, safe custody and despatch of the sample of the Chemical Examiner.

The last contention is with regard to the sentence. The accused was found in possession of 30 bottles of illicit liquor. Considering the recovery of heavy quantity of illicit liquor, benefit of probation was declined to him by the courts below. In my considered view, the discretion has been properly exercised. The huge quantity of recovery indicates that the accused might be indulging in such antisocial activity.

Hence, finding no merit in the revision, it is hereby dismissed.