Partap Singh vs State of Haryana

V.S. Aggarwal, J.

This revision petition has been filed by Partap Singh and another directed against the judgment and the order of sentence passed by the learned Judicial Magistrate Ist Class, Bhiwani dated 15.11.1986 and also the judgment of the learned Additional Sessions Judge, Bhiwani dated 23.3.1987 whereby the appeal filed by the petitioners was dismissed. The learned trial Court had held the petitioners guilty of the offence punishable under Section 61(i)(a) of the Punjab Excise Act and sentenced them each to undergo rigorous imprisonment for 11/2 years and to pay a fine of Rs. 3,000/. In default of payment of fine, they shall further undergo rigorous imprisonment for 6 more months. The appeal as mentioned above had been dismissed.

The brief facts of the prosecution case are that SI Khan Chand along with ASI Bhagat Singh, HC Dilbag Singh and other members of the police force were on patrolling and excise checking duty. A secret information was received that some persons are in the habit of bringing illicit liquor from Rampur Beri and that if a raid is conducted, the illicit liquor can be recovered. a raiding party was organised of the above said police officials. A tractor was found coming from the side of Baralu village. It was stopped. The petitioners were present on the tractor. The search was conducted. Three gunny bags were found tied with two ropes. They were checked. It was found that they contained two tubes and two jerrycans. In all it was found to be 271 bottles of illicit liquor. The samples were taken. They were sealed with the seal of ''CS''. The samples were sent for chemical analysis and it was found to be illicit liquor. On these broad facts, report under Section 173 of the Code of Criminal Procedure was submitted.

The learned trial Court on appraisal of the oral evidence of Hari Singh PW1, HC Dilbag Singh PW2 and ASI Bhagat Singh PW3 concluded that it has been established that illicit liquor was recovered from the possession of the petitioners. The discrepancies pointed by the petitioners were ignored holding that it was not material to shake the prosecution case. The same reasoning found favour with the learned Additional Sessions Judge, Bhiwani. Hence, the present revision petition.

It is not being disputed that the prosecution case rested on the sole testimonies of the official witnesses. Therefore, it had been argued that when public witnesses could be joined and have not been joined, the prosecution case must be taken to have not been established beyond all reasonable doubt.

In its broad principle, the said argument indeed cannot be accepted. It is not always necessary that public witnesses must be joined in every recovery that is to be effected. However, an attempt must be made to join independent witnesses and if no independent witness is in the raiding party, a reasonable explanation should be forthcoming for nonjoinder of the public witnesses. In the present case, it transpired in the statement of ASI Bhagat Singh PW3 that they had called the Lamberdar and Sarpanch of the village but they did not turn up. They even met 23 persons from the public but they refused to join the raiding party. It is anybody''s guess as to who were those persons. It has also not been explained if any action was taken against the Lamberdar and Sarpanch for not joining the police raid. The explanation, therefore, appears to be patently not correct or in other words for no valid reasons, public witnesses have not been joined. When explanation forthcoming is not correct, it makes the prosecution case shaky and untrustworthy.

In addition to that the alleged recovered illicit liquor had not been produced during the course of trial. Only empty jerrycans and tubes found from the petitioners were produced before the trial court when evidence was recorded. Learned Assistant Advocate General urged that it was not necessary that the said illicit liquor should have been produced at the relevant time. But the learned counsel forgets the Punjab Police Rules as applicable even to Haryana. Under Rule 22.15 it is the responsibility of the officerincharge of the police station to examine the property twice a month because he is supposed to be incharge of the same. Rule 22.15 reads :

"22.15. Public property. Subject to the orders and responsibility of the officer incharge of the police station, the station clerk shall be considered to be in charge of all public property including money and case property in his station house. Every officer in charge of the station shall examine the property at least twice a month and shall report in the following Monday''s diary that he has done so. If property is found to be incomplete or to be in any way damaged he shall add to his report the names of the persons responsible for the loss or damage.

He shall also see that the property in connection with a case is expeditiously disposed of according to magisterial orders on the conclusion of the case.

All property shall be examined by officers in charge of police stations on receiving and handing over charge and by station clerks on relief. All damages and shortages must then be carefully noted and reported to the Superintendent of Police".

Furthermore under Rule 27.17 it is the duty to maintain the said property till such time the final orders are passed. Subrule (1) of Rule 27.17 is material and reads :

"27.17(1). At headquarters the head of the prosecuting agency, with the assistance of his staff, shall take charge of weapons, articles and property connected with case sent for trial and shall be responsible for their safe custody until the case is decided. When final orders are passed in the case, such weapons, articles and property shall, if not made over to the owner, be made over to the sheriff."

In the present case, one is constrained to observe that the said rules have totally been ignored. It is true that in the case of Balraj Singh v. State of Punjab, 1982 Crl. L.J. 1374 this question had come up for consideration and the court had answered that mere nonproduction of part or whole of the case property would not vitiate the conviction. But in paragraph 15 the Division Bench gave the following note of caution :

"I must, however, sound a strong note of caution that the view I am inclined to take must not be misunderstood to mean as if the production of the case property is to be dispensed with at the trial. Normally it is the duty of the prosecution to do so. Equally if some thing vital turns on it the accused can insist upon its production and the refusal to do so would be a factor for adverse notice against the prosecution by the Court. But in the ultimate analysis the issue is one of the prejudice caused to the accused and any failure of justice resulting therefrom. In this context the question whether such an objection could be, but has not been raised at the earliest stage of trial is of considerable relevance. In a case of innocent or inadvertent nonproduction of the case property material prejudice is to be shown by the accused in order to claim the vitiation of the conviction. No abstract or absolute rule that "no case property, no conviction", can possibly be raised to the pedestal of a rule of law, because this by itself is likely to occasion a failure of justice. As has been said earlier the substantial issues in a criminal trial like the proof and punishment of crime should not be converted into a plaything of technicalities. If the prosecution has innocently or inadvertently failed to exhibit the case property, yet the accused even though fully represented by counsel makes no objection or grievance thereof at the time of the trial, it would hardly lie in his mouth at the revisional stage to say that all the proceedings stand vitiated even though connived at or wholly condoned by his own conduct".

This position had been considered by a Single Judge of this Court in the case of Suba Singh v. State of Punjab, 1984(1) RCR 429 and the court observed :

"It seems that the aforesaid authority is being misused by the prosecution and the courts below in the present case without reading the whole of the judgment have blindly convicted the petitioner. The principle of law as laid down in the aforesaid authority is to be applied cautiously in the facts and circumstances of each case if there is plausible evidence that the case property could not be produced or was destroyed. In the absence of any plausible explanation for nonproduction of the case property benefit must be given to the accused."

From the aforesaid, it is clear that an attempt must be made to preserve the case property till such time the petition or the case is finally decided or adjudicated. In final analysis though the trial may not be vitiated as held in the case of Balraj Singh (supra) but it has to be seen ultimately if any prejudice is caused to the petitioner or not. If prejudice is caused, necessarily the benefit would be accuring to the accusedpetitioner.

Reverting back to the petition in hand, it is not disputed that the case property never saw the light of the day during the trial. The explanation given was that there was leakage. One wonders if there was so much leakage in the Malkhana and still it was not flooded. In addition to that there is no entry in the Roznamcha that leakage has been noticed. There is no report about the leakage nor this fact was brought to the notice of the court. When such is the situation, mere allegations that illicit liquor was recovered will not be convincing. It reflects adversely on the whole prosecution case, the investigation and also about the functioning of the Malkhana. In these circumstances, the petitioner''s counsel rightly urged that prejudice has been caused.

As a result of the reasons given above, the petition is allowed. The judgment and the order of sentence passed by the courts below are set aside. The petitioners are acquitted giving them the benefit of doubt.