Ram Sarup and anr. vs State of Haryana

A. S. Nehra J.

The petitioners were convicted under Section 61(i)(c) of the Punjab Excise Act, and were sentenced to R. I for two years and to pay a fine of Rs. 200/ each and in default of payment of fine, they were further sentenced to undergo R. I. for six months each by the Judicial Magistrate I Class Karnal on May 6, 1986. The appeal filed by the petitioners was dismissed on July 18, 1986, by the Additional Sessions Judge, Karnal, but the sentence of imprisonment was reduced from two years to one year. However, the sentence of fine was maintained. Hence, this revision petition

Briefly stated the facts are as under :

On 531983, PW3 Kartar Singh SubInspector (Now Inspector) received a secret information against the petitioner to the effect that they were distilling illicit liquor by means of a working still in the field of Vijay Singh and if raided, could be apprehended red handed. Upon this information, he registered formal FIR Ex. P3/A against the petitioner. He alongwith constable Partap Singh PW2, Ranbir Singh, Inder Singh and Ram Kumar went in a Govt. Jeep No. HRD 6760 to the spot. He found that both the petitioners were distilling illicit liquor by operation a working still. At that time, Ram Sarup petitioner was changing the water while Dalip Singh petitioner was feeding the fire. He took both the petitioners in custody. There was hearth on which drumi containing 25 kgs. of lahan was placed which was being used as boilerone bathal Ex. P2 made of earth was fixed on the boiler in which then were two holes. Chapani Ex. P3 was suspended with small ropes in the bathal and there was hole in the Chapani in which one end of the plastic tube Ex. P4 was fitted and the other end of the plastic tube was in the Canny Ex. P8. There was one Tasla Ex. P5 in which there was water and was being used as cooler. One Diba tin Ex. P6, one pitcher containing water Ex. P7, some half burnt pieces of wood were lying there. The working still was dismantled and its components were allowed to cool down. A sample nip was taken from the plastic canny and the liquor in the canny was measured which was found to be five bottles. The sample nip and the canny were separately sealed with the seal of P. S. The drumi Ex. P1 was also sealed with the seal of P. S. All these articles were taken into possession vide memo Ex. PW2/A attested by Partap Singh constable PW2 and Ranbir Singh constable. PW5 Kartar Singh S. I. prepared rough site plan Ex. PW3/B of the place where the working still was captured. He deposited the case property with seals intact on the same day with the Moharrir Malkhana PW1 Yashpal Singh, Excise Inspector, examined the contents of drumi Ex. P1 on 631993 and found the same to be partly distilled lahan.

3.Prosecution in support of its case, examined Yashpal Singh, Excise Inspector PW1, Partap Singh Constable PW2 and PW3 Kartar Singh SubInspector. Affidavit Ex. PY of Jagdish Chander MHC, was tendered into evidence.

After the close of the prosecution evidence, the statements of the petitioners were recorded in terms of Section 313 of the Code of Criminal Procedure, whereby, they denied all the allegations of the prosecution and pleaded false implication. However, they did not lead any defence evidence.

Learned counsel for the petitioners argued that PW3 Kartar Singh S. I. has reached the field where petitioners were allegedly distilling illicit liquor by means of a working still on receipt of secret information and as such, it was incumbent upon him to join independent witness in the police party before conducting raid. PW3 Kartar Singh S. I. received the secret information against the petitioners at about midnight. The formal FIR Ex. PW3/A was drawn up at about 12.15 a.m. on 531993 and the police reached the field where the petitioner were operating working still at about 12.45 a.m. or 1 a.m. on that day. In the beginning of March, there is pretty cold. PW3 had given explanation for nonjoining of the independent witnesses which seems to be plausible. He states that the field where the petitioners were operating working still was at a distance of about 1 k.m. from village Uplana and before going to the fields, he had tried to join Sarpanch, Panch, Lamberdar or Chowkidar from village Uplana and for this purpose, they had knocked their doors but due to winter season none came out. It is a matter of common knowledge that if a door of a house is knocked in the mid of night in the winter season the occupier of the house does not come out easily. Therefore, it is not the fault of the Investigating Officer if independent witness was not joined in the police party because it was old hour of a winter night and the independent witnesses were not available at that time. If this witness (PW3) had spent some extra time in joining independent witness than he could not have been able to apprehend the petitioners redhanded and the very purpose of raid would have been frustrated. Hence, the case of the prosecution cannot be discarded for nonjoining of independent witness.

Learned counsel for the petitioners has next contended that there are number of discrepancies in the statements of PW2 Partap Singh and PW 3 Kartar Singh S. I., which are fatal to the prosecution case. But in my opinion, there are no discrepancies in the statements of the witnesses, if these statements are closely perused. After a period of three years, one is not expected to remember exact time, distance or other minor circumstances. These minor discrepancies only suggest that PWs are telling the truth and are not tutored witnesses.

Learned counsel for the petitioners has further submitted that the petitioners are entitled to be released on probation under Section 360 of the Code of Criminal Procedure. Learned counsel for the petitioners submitted that the petitioners are first offenders that there is nothing against their character and antecedents on the record and they are family men and are on bail since July 24, 1986.

Learned counsel for the petitioners has submitted that in the instant case, the learned lower Courts have not considered this aspect of the matter.

It seems that the provisions of Sections 360 and 361 of the Code of Criminal Procedure 1973, were not brought to the notice of the learned lower Court. The legislature, by including these provisions in the new Code, intended to reform the offenders, where it is possible, by giving them the benefit of probation. It is only by giving special reasons under Sections 361 of the Code of Criminal Procedure that the benefit of probation can be denied by the court. Special reasons are to be given by the Court with regard to the age, character and antecedents of the offenders and the circumstances in which the offence was committed.

10.It is incumbent upon the Courts to give benefit of probation when the offenders are entitled to it under Section 360 of the Code of Criminal Procedure, unless the Courts find that the convicts are incorrigible and cannot be reformed. Keeping in view the aforesaid principle, the petitioner are given one chance to reform themselves. Accordingly, conviction of the petitioners is maintained, but the sentence of imprisonment and fine are set aside and it is directed that they be released on their entering into a bond in the sum of Rs. 5000/ with one surety in the like amount each 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. The petitioners are further directed to deposit Rs. 5000/ each as costs of the proceedings. This revision petition is thus, partly allowed.