Pritam Singh vs The State

Dua, J.—This revision is directed against the order of the learned Additional Sessions Judge, Jullundur, dated the 28th of January 1963, affirming the conviction of the petitioner u/s 61(l)(c) of the Punjab Excise Act, but reducing the sentence of imprisonment from nine months to six months. The learned Magistrate trying the petitioner had, it may be stated, sentenced him to nine months rigorous imprisonment and a fine of Rs. 200/-, in default of payment of which he had to undergo rigorous imprisonment for a further period of four months. The sentence of payment of fine and imprisonment in default was, however, maintained by the Court of appeal.

The case against the petitioner is that on the 12th of January 1962 at Kahnpur he was found working a still distilling illicit liquor, the component parts of which were inter alia a valtoha containing 30 seers of lahan, a brass dohni containing 104 ozs. of illicit liquor a. bamboo pipe, some bricks and a bucket containing 130 ozs. of illicit liquor. On the day mentioned above Sub-Inspector Banarsi Das, who had received secret information formed a raiding party consisting of Tarlok Singh, Teja Singh, Swarn Singh and Bhagat Singh in addition to some officials. They raided the house of the accused at about 3 in the morning when the accused was seen distilling illicit liquor in the courtyard of his house and was actually feeding the fire under the still. He was secured at the spot and when he tried to resist his arrest he sustained some injuries on his person.

In his statement u/s 342 of the Code of Criminal Procedure the accused denied the prosecution version and stated that as a matter of fact he had been summoned from his well and falsely implicated in the case. He also denied the place of recovery to be in his possession. In support of the defence three witnesses were examined by the accused. D. W. 1 is Sadhu Singh, according to whose statement when the police arrived in the village accused Pritam Singh was working at the witness''s well and was called from there. The following day the witness came to know that he (the petitioner) had been involved in the case. He has, however, admitted that the police actually arrived at the village at about 2-30 early in the morning. The witness was not called by the police. D. W. 2 Kashmiri Lal, Head Constable, produced the roznamcha in which it is stated that the police party left for Kahnpur at about 1 o''clock early in the morning and returned at 1 o''clock during day-time. D. W. 3 Mohinder Singh Head Constable has given the number of the van by which the police party left for village Kahnpur.

The trial Magistrate believed the prosecution version and convicted the petitioner as mentioned above. He expressly observed in the judgment that the defence had not assailed the testimony of Tarlok Singh P. W. 2 on the ground that he was a stock witness. No material discrepancy or inconsistency in the statements of the prosecution witnesses having been pointed out to the Court, the version given by these witnesses was up-held.

On appeal it was stressed that there was no occasion for the members of the raiding party to give beating to the accused who could not, in the circumstances, be expected to offer any resistance, with the result that false implication of the accused could not be reasonably ruled out. This argument did not impress the Court of appeal, for one thing, because the accused had not stated anything in his statement u/s 342 of the Code of Criminal Procedure regarding his injuries. The prosecution version that the accused offered resistance and was for this reason given some beating, according to the Court of appeal, also fixed the presence of the accused at the spot. This apart, holding the prosecution witnesses to be trustworthy, the appellate Court affirmed the conviction and reduced the sentence as mentioned earlier.

On revision to this Court, at the preliminary hearing on the 13th of February 1963 Khanna, J., admitted the revision but declined bail, at the same time ordering hearing within one month. On the 20th of March 1963, when the case was put on the board, the records of the trial Court had not arrived, with the result that Khanna, J, felt compelled to adjourn the case. On that day, however, in view of the short sentence the petitioner was directed to be released on bail.

On behalf of the petitioner Shri B.D. Mehra has submitted that section 103 of the Code of Criminal Procedure, which contains a salutary provision in regard to searches, has not been complied with, because the non-official witnesses associated in the raid were not respectable inhabitants of the locality. The counsel has also taken me through the testimony of Tarlok Singh P. W. 2 and has tried to point out some discrepancies in his evidence. Stress has also been laid on the contention that this witness has denied the use of force by the police when the accused was sought to be arrested. This, according to the learned counsel, throws considerable suspicion on the bona fides and integrity of the prosecution witnesses. The other circumstances, on which the counsel has laid emphasis, is that the place from where the recovery of the still is said to have been made is not in the possession of the accused and, therefore, he cannot be held liable for the possession of all the various articles. Finally it has been urged that the sentence is excessive and as the accused has been released on bail by this Court it is not a fit case in which he should be sent back to serve out the remaining sentence.

I have devoted most earnest and serious thought to the arguments of the learned counsel. In my opinion if the prosecution story of the presence of the accused at the spot when he was found working the still is accepted then the question of the possession of the precise place, where the still was being worked, loses importance. In so far as the..argument based on beating the accused is concerned, it is not without significance that the accused himself said nothing in his statement u/s 342 that he was beaten by the police on account of circumstances which would throw doubt on the veracity of the prosecution version. But this apart, the statement of Tarlok Singh, P. W. 2 also does not completely rule out struggle between the accused and the raid party. That the accused grappled with the police has been clearly stated by him, though he has denied any noticeable injury having been received by the accused, there being no "determined beating given to the accused. The accused was trying to run away when the police tried to secure him. This evidence clearly does not materially contradict the other prosecution evidence and does not cast any reasonable doubt on the prosecution version. This argument, therefore, need not detain me.

The contention that on account of the discrepancies pointed out the prosecution witnesses should be disbelieved is also difficult to sustain. The discrepancies on which reliance has been placed are in my opinion not those which belie the basic facts deposed to by the prosecution witnesses; they are strictly speaking discrepancies which are likely to be found in the statement of an average human being when deposing about incidents which happened some time ago; particularly so with the witnesses belonging to the class from which the prosecution witnesses in the case in hand have come. Power of observation and of stating what one has observed varies from individual to individual and merely because there are some discrepancies on certain points of minor importance in regard to what actually these witnesses may or should have noticed at the time of the raid is a matter which depends on personal faculties of the witness concerned. No objective test can he laid down which must be applied to every case with rigidity. One thing, however, is striking in this case, and that is, that, if the entire case had been fabricated then one would have reasonably expected the prosecution to fix the spot of illicit distillation at a place about which there could be no doubt about the possession of the accused. The petitioner''s learned counsel has suggested that possibly some other persons of the village might have been actually involved in distilling illicit liquor at the precises pot, but the accused has been falsely implicated in lieu of the real guilty persons. The argument in the abstract may be urged, but on the existing record I do not find any material justifying a reasonable possibility of the substitution of the accused for someone else who might actually have been engaged in distillation and who has been shielded by the prosecution. Indeed even the accused has not in his statement u/s 342 put forward or indicated any such suggestion, which in all likelihood would have been stated if there was some element of truth in it. I have, therefore, no hesitation in repelling the contention based on discrepancies.

In so far as section 103 of. the Code is concerned, I am not quite clear if this section in terms applies to the raid like the present, the object and purpose of which would, from its very nature, be defeated, if timely warning were given to the alleged culprits of the impending raid by calling respectable inhabitants from the locality to witness the raid. The question whether the local inhabitants would willingly involve themselves in such a raid also calls for some consideration from a realistic point of view but to that aspect I need not advert in this case. In any event, even if the rule underlying section 103 were, on general grounds, to be held applicable, there is ample authority for the proposition that non-compliance with the strict provisions of this section has no nullifying or vitiating effect. It is only a circumstance which may be taken into account along with other evidence. Each case has to be decided on its own facts and Court has to see if there: is any reasonable ground for suspecting that the accused has been the victim of a piece of chicanery or of sharp practice at the hands of the police. The matter has thus to be considered in the light of the explanation offered by the investigating officer, for, there may be good reasons in the case for associating witnesses from a place somewhat away from the village in which a raid is to be carried out. As stated a little earlier one of the possible reasons may be that if the raiding party goes and tries to call witnesses from the vicinity of the place of raid at midnight then the whole object of the sudden raid would be completely frustrated. In the present case nothing has been said at the Bar as to whether or not the investigating agency was asked to explain the reason for bringing with the raid party persons from outside the village and, if so, whether the explanation given is unconvincing, and then the police witness also can not be discredited merely because of their official status; and if the testimony of the police witnesses in this case is not considered to be suspicious, then too the conviction of the accused cannot be held unsustainable. Reference to sections 25 and 26, Evidence Act, for discrediting the police witnesses as a class is, in my opinion, not helpful and the analogy is also not apt. This argument is also, therefore, unacceptable.

In so far as the question of sentence is concerned, I am constrained to observe that illicit distillation has increased to such an extent in this State that deterrent sentences are, in my opinion, absolutely essential. Although, speaking for my part, I would not normally be inclined to send accused persons who are released on bail by this Court, back to jail to serve out the remaining sentence, yet I am unable to persuade myself to follow this rule uniformally without looking at the circumstances of each case. As already observed, illicit distillation has assumed such great proportion in the state that laws prohibiting it appears to me to be disobeyed with impunity and almost at a mass scale. The law appears to be considered by some villagers as a dead letter or non-existent lacking as it seems to do in vigorous public enforcement. It is, therefore, not possible for me to yield to the contention that the sentence should be reduced to that already undergone.

The revision thus fails and is dismissed. The accused must surrender to his bail-bond to serve out the remaining sentence. It is, however, for the legislature and the policy builders to seriously consider the problem created by the increase of these offences and to tackle it not only by setting in motion criminal law but also by sociological considerations and by educative process befitting a welfare democratic state.