Puran Singh vs State of Haryana

A.S. Nehra, J.

The petitioner was convicted under Section 61(1)(a)(c) of the Punjab Excise Act by the Additional Chief Judicial Magistrate, Karnal vide his judgment dated 19.2.1986 and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/ and in default of payment of fine to undergo further rigorous imprisonment for six months. On appeal filed by the petitioner, the Additional Sessions Judge, Karnal vide his judgment dated 20.9.1986 maintained the conviction of the petitioner but his sentence of imprisonment was reduced from one year to six months and the sentence of fine from Rs. 2,000/ to Rs. 1,000/ and in default of payment of fine he was ordered to undergo further rigorous imprisonment for three months instead of six months.

Briefly stated, the prosecution story is as under :

On 20.1.1982, PW1 Kali Ram, S.I. was posted in Police Station Sadar, Karnal. On the date, he alongwith Inder Singh, A.S.I., Hukum Chand, H.C. and Ram Phal, Constable was going towards Jundla for patrolling. Then he reached near Bus Stand, Karnal, PW2 Yashpal Singh, Excise Inspector Jai Singh, A.S.I. Mohinder Singh, Vinod Kumar, Shob Raj, Constables and Chemel Singh, Excise Peon met him in a jeep whose Driver was Sham Lal. Then all of them went towards village Jundla for excise checking. When they reached near Raj Kot Farm then PW1 Kali Ram, S.I. received secret information that the petitioner was distilling illicit liquor by means of a working still in a Kotha meant for cattle and if raided he could be apprehended red handed. Upon this information, he sent rukha Ex. PA to the Police Station for registration of a case at about 6.15 p.m. upon which formal F.I.R. Ex.PA/1 was recorded by Joginder Singh, ASI. Thereafter, he alongwith police party went to the dera of the petitioner, where he was found distilling illicit liquor by means of working still and the petitioner was apprehended red handed, while changing water of the Cooler. There was a drum Ex. P1 which contained about 40 Kgs. of lahan and it was kept on the hearth. Bathal Ex. P2 was placed on the drum Ex. P1 and in the bathal there was chapan Ex. P4 was affixed while the other end of the rubber tube Ex. P6 which contained water was kept and it was being used as Cooler. The liquor was trickling in the receiver bottle drop by drop. One dibba, Ex. P7 was lying near the working stiff. The working still was dismantled and its components were allowed to cool down and a nip was taken from the receiver bottle. Sample nip and the receiver bottle Ex. P5 were separately sealed with the seal of Y.S.C. PW2 Yaspal Singh, Excise Inspector tested the contents of the drum Ex. P1 at the spot and found it to be partly distilled lahan. He gave his report Ex. PO. All the memo articles alongwith burnt pieces of wood were taken into possession vide memo Ex. PB attested by witnesses. PW2 Kali Ram, S.I. prepared rough site plan Ex. PC with correct marginal notes. After the completion of investigation, the challan was put in the trial Court.

In order to prove the allegations, the prosecution examined PW1 Kali Ram, S.I. and PW2 Yaspal Singh, Excise Inspector.

After close of the prosecution evidence, statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the allegations of the prosecution and pleaded false implication. In defence, he examined DW1 Anup Singh, who stated that the petitioner did not indulge in the distillation of illicit liquor and that the petitioner was apprehended in his presence from in front of the liquor vend at about 11 a.m.

Learned counsel for the petitioner has vehemently contended that the police party had raided the dera of the petitioner after receiving information and as such it was incumbent upon the Investigating Officer to join independent witnesses before conducting the raid and in the absence of independent witness, testimony of PW1 Kali Ram, S.I. and PW2 Yashpal Singh, Excise Inspector cannot be believed.

After hearing learned counsel for the parties, I find no force in the contention raised by the learned counsel for the petitioner. It is true that the Police party had gone to the dera of the petitioner after passing through the Village Jundla and they did not join any independent witness from the village. It was not asked from PW1 Kali Rim, S.I. as to why he did not join any independent witness in the police party while passing through villageJundla. The reason is obvious. If PW1 had spent some time in joining independent witness then the very purpose of raid would have been frustrated.

The learned counsel for the petitioner further submitted that the petitioner is a first offender, that there is nothing against his character and antecedents on the record and that he is a family man and is on bail. The offence was committed on 20.1.1982. The Court below did not give him the benefit of probation.

Keeping in view the abovesaid circumstances, the petitioner is given one chance to reform himself. Accordingly, his conviction is maintained but the sentence of imprisonment and fine is set aside and it is directed that he be released on his entering to a bond in the sum of Rs. 5,000/ with one surety in the like amount to the satisfaction of the trial Court and to appear and receive sentence when called upon during a period of two years and in the meantime to keep peace and be of good behaviour. He is further directed to deposit a sum of Rs. 3,000/ as costs of the proceedings.

Crl. Revision petition is partly allowed as indicated above.