Santa Singh vs The State

Gopal Singh, J.—This is revision petition by Santa Singh. By Judgment, dated May 3, 1968, passed by Shri S. K. Dhir. Judicial Magistrate Ist Class, Ludhiana, he was convicted u/s 61(1) (c) of the Punjab Excise Act, 1914 and sentenced to rigorous imprisonment for six.months and to pay fine of Rs. 10 or in default of payment of fine to further suffer rigorous imprisonment for one week. On appeal, his conviction and sentences were confirmed.

In the forenoon on September 22 1965, in pursuance of secret information received, Uttam Singh, Assistant Sub-Inspector, posted in the Excise Staff, Ludhiana, organised a raid party to capture the Petitioner. Girdhari Lal, Excise Inspector and Kartar Singh joined that raid party. While the raid party was proceeding towards Gill Road, they Came across tied Petitioner near Gol Chakar. They saw him coming on a bicycle from the side of Gill Chowk. He was stopped. A gunny bag was found tied on the carrier of the bicycle. On opening the gunny bag, there was found a rubber tube containing liquor. A sample of the liqour was drawn out of the lot contained in the rubber tube. The remaining quantity of liquor was transferred to 20 bottles. Memo pertaining to the recovery of the tube Exhibit P. A , gunny bag Exhibit P. 2 and 20 bottles of liquor Exhibits P 3/- to P. 3/20 is Exhibit P. A. The nip containing the sample was sent to the Chemical Examiner, By report Exhibit P. D., the Chemical Examiner gave the opinion that the liquor recovered was illicit liquor.

The Petitioner was proceeded against for trial. At the trial, the case of the prosecution was supported by the evidence of Kartar Singh P. W. 1, Girdhari Lal Excise Inspector P. W 2 and Uttam Singh, Assistant Sublnspector P. W. 4 testifying to the fact of recovery of liquor from the possession of the Petitioner. Bachan Singh Excise Clerk P. W. 3 was produced to show that after the receipt of sealed nip containing the sample from Kasturi Lal Constable, he handed it over to Shankar Dass Constable. There were filed affdivits of Inder Singh and Kasturi Lal, Exhibits P. E. and P. F. respectively to depose to the facts of Kasturi Lal having at first handed over the sealed sample to Inder Singh and after taking it back from the latter he delivered the same to Bachan Singh Excise Clerk, who, in turn, handed it over to Shanker Dass, who is further said to have carried it to the office of the Chemical Examiner.

In his statement u/s 342, Criminal Procedure Code, the Petitioner stated that he had been falsely implicated on account of enmity with the police. He produced in defence Kundan Singh D. W. 1 and Daulat Singh D. W 2 to prove that when the police came to his house and wanted to search it, he was already present there and no recovery of liquor had been effected from him near the Gol Chakar as alleged against him.

Shri S. S. Kang appearing on behalf of the Petitioner has contended that the prosecution have Failed to establish that the sample of liquor recovered could not have been tampered with in transit from the time of its recovery upto the time it reached its destination in the office of the Chemical Examiner, that the prosecution evidence does not warrant conviction of the Petitioner and that due weight has not been given to the defence evidence adduced on his behalf.

The sample of liquor sought to be sent to the Chemical Examiner was recovered by Uttam Singh, Assistant Sub-Inspector P. W. from the possession of the Petitioner on September 22, l965. The sample of liquor contained in a nip is said to have been sealed at the time of recovery. Bachan Singh, Excise Clerk P. W. has stated that he was handed over the sample by Kasturi Lal Constable on September 29, 1965. Kasturi Lal, in his affidavit Exhibit P. F., has stated that he received the sealed nip containing the sample of liquor recovered from the possession of the Petitioner on September 22, 1965 and delivered it on that date to Inder Singh, Moharrir Head Constable and that on September 29, 1965, after receiving it back from Inder Singh, handed it over to Bachan Singh, Excise Clerk P. W. Inder Singh, Moharrir Head Constable, in his affidavit Exhibit P. E., has testified to the fact of his having received from Kasturi Lal Constable on September 22, 1965, the said rip and having given it back to him on September 29, 1965 with seal intact for its being carried to the office of the Excise and Taxation Officer, Ludhiana for its delivery there.

Bachan Singh Excise Clerk P. W. states that he received the nip containing the sample from Kasturi Lal Constable on September 29, 1965. He further states that he handed over the nip to Shankar Dass Constable on September 30, 1965. He has vouch safed the fact that so long as it remained with him, nobody tempered with it. It is Shankar Dass Constable, who is said to have handed over the nip containing the sample in the office of the Chemical Examiner at Chandigarh.

From the above evidence, it has not been stated as to from whom was initially the nip containing the sample of liquor received by Kasturi Lal Constable on September 22, 1965. Neither Uttam Singh, Sub-Inspector P. W. nor Girdhari Lal, Excise Inspector P. W. has proved the fact of the nip having been handed over by Uttam Singh, Assistant Sub Inspector to Kasturi Lal Constable. The receipt of the sample of liquor by Shankar Dass Constable from Bachan Singh P. W. has been proved by Bachan Singh, but there is no further evidence to show that it was Shankar Dass Constable, who carried the sample to the office of the Chemical Examiner and it was he who delivered the nip there and that no one tampered with the sample as contained in the sealed nip. It is also not known as to on what date was that nip delivered in the office of the Chemical Examiner. It is not known as to who received the sample in that office and that the same had been received by him duly sealed and untampered. Thus, there are missing links in the chain of continuity of evidence, which had to be led on behalf of the prosecution to show that at no stage in course of transit right from the time it was recovered upto the time it reached the office of the Chemical Examiner, the sample could have been tampered with.

The prosecution have failed to prove as to from whom and at what place the nip containing the sample of liquor was, after its recovery, received by Kasturi Lal Constable. Similarly, the prosecution had to give evidence of Shankar Dass either by making him step in the witness box or by way of affidavit, to show that from the time he received the sealed nip, the same had not been tampered with right upto the stage it arrived at its destination. In reply, the counsel for the. State argued that u/s 510, Criminal Procedure Code, the report of the Chemical Examiner, Exhibit P. D , in which there exists a sentence to the effect that the seals were intact on arrival and agreed with the sample seal sent, be treated as evidence by way of substitute for the second missing link of the prosecution evidence. According to the provisions of Section 510, Criminal Procedure Code, it is only the report of the Chemical Examiner upon any matter or thing duly submitted to him for examination, that can be used as evidence. In other words, it is the report, by which is implied the opinion of the Chemical Examiner, which can be used as evidence provided the matter or thing, in respect of which such opinion is sought, has been duly submitted to him for examination. In the context, the word, ''report'' refers to the report proper pertaining to the examination of the matter or thing for forwarded to him and not to any incidental intimation noted or endorsed in that report, Section 510, Criminal Procedure Code, dispenses with the necessity of production of Chemical Examiner as a witness in Court to prove the contents of his report pertaining to the examination. It does not dispense with the necessity of proof of any other incidental or consequential matter, about which a note has been appended in that report. It is either the person, who delivered the nip containing the sample or the person, who received that nip, if not both, could prove the fact of the content of the nip having not been tampered with and the same having been kept in tact and duly delivered to the recipient in the office of the Chemical Examiner. In order that the necessity of proving the report of the Chemical Examiner may be disposed with, it must be proved by the prosecution that the matter or thing had been duly submitted to the Chemical Examiner for examination. Even if Section 510, Criminal Procedure Code, could be construed widely to cover the note pertaining to the seal on the nip being intact, which I do not think it can be, the prosecution have to prove that nip had been duly delivered for examination to the Chemical Examiner. In other words, the prosecution had none the less to prove that the nip containing the sample had been kept intact and was duly sealed when delivered to its recipient in the office of the Chemical Examiner and had not in any way been tampered from the time it remained with Shankar Dass Constable. In the absence of evidence of Shankar Dass Constable, the prosecution have failed to eliminate the chance of the nip containing the sample sought to be examined by the Chemical Examiner having been tampered with.

The case of the prosecution is supported by the testimony of Uttam Singh, Assistant Sub Inspector Girdhari Lal Excise Inspector and Kartar Singh P. Ws . Uttam Singh and Girdhari Lal P. Ws are official witnesses They are interested in the success of the recovery of the liquor said to have been effected by them from the possession of the Petitioner Kartar Singh P W., who was associated as independent witness.has admitted that he had been appearing in a large number of excise cases to support the recoveries made by the police from time to time. He said that he could not deny that he might have appealed in as large a number of cases as 25. He is thus a stock witness of the police and seems to be ever ready at their command.

The object of Section 103 Criminal Procedure Code, under which recoveries as in the present case are made, shall be defeated if the presence of at least two independent and respectable witnesses of the locality is not persisted with. It is stated by Kartar Singh P. W. and is also admitted by Uttam Singh and Girdhari Lal P. Ws. that about 100 persons came to the place near the Gol Chakar, where the recovery was effected from the Petitioner and saw the recovery being made. There is no reason why some independent witnesses should not have been asked to attest the recovery, when such a large number of witnesses were in fact present at the time the recovery was made.

The Petitioner produced two witnesses in support of his plea in defence that the recovery had not been made at the Gol Chakar from him but had been effected from one Sulakhan Singh at the Gol Chakar and as it was stated that the Petitioner also used to sell illicit liquor by carrying it in tube, portion of the liquor recoverd from sulakhan Singh was ascribed to the Petitioner as recovered from him and that recovery of iiquor had thus been planted on him. Kuudan Singh D.W.1, who is a respectable witness and whose dairy adjoins the house of the Petitioner, stated that when police arrived in the house of the petitoner to effect search, the Petitioner was also present there. Dau-lat Singh D.W.2, who is a shopkeeper and runs his shop in the neighbourhood of the house of the Petitioner, states that the Petitioner was present in his house when the police visited it for making search therein. Not only both these witnesses have consistently stated about the fact of the visit of the police to the house of the Petitioner for searching it but that fact has also been admitted by Uttam Singh, Assistant Sub-Insdector, Girdhari Lal Excise Inspector and Kartar Singh P.W. No independent witness has been produced. The fact of search of the house of Petitioner on the date when recovery is said to have been effected from him near the Gol Chakar has been admitted. There is also the admission of the fact that on that very day recovery of large quantity of illicit liquor was made from Sulakhan Singh. There is nothing unlikely in treating Part of the liquor recovered from the poss. ession ot Sulakhan singh as liquor recovered from the possession of the Petitioner, as if recovered from him at the place where the recovery of liquor from Sulakhan Singh was effected. As the case against the Petitioner is not free from doubt, the Petitioner is entitled to the benefit of doubt.