Shamsher Singh vs State of Punjab .

Harmohinder Kaur Sandhu, J.

Shamsher Singh was tried for an offence under Section 61(l)(c) of the Punjab Excise Act. He was held guilty by Sh. B.J. Nangali, Judicial Magistrate 1st Class, Zira and was sentenced to undergo rigorous imprisonment for 1 1/2 years and to pay a fine of Rs. 5000/ Against the judgment recording his conviction Sham Singh filed an appeal which was dismissed by Shri R.L. Anand, Additional Sessions Judge, Ferozepur, vide his judgment dated 28.8.1986 after sentence of imprisonment was reduced to one year. These judgments are assailed by Shamsher Singh in this revision petition.

The prosecution case against the petitioner was that on 31.3.1983 Head Constable Santokh Singh was going towards village Basti Bhoru along with other police officials when within the revenue estate of village Ghumyariwala he noticed smoke rising from the side of canal minor. On suspicion that place was raided and the petitioner was apprehended while he was distilling illicit liquor by working a still. The still was cooled down and dismantled and articles of still were taken into possession, which included a drum used as a boiler. The liquor lying in the receiver tin was transferred into three bottles after a sample was seized. Another drum containing 200 kilograms of Lahan which was lying near the working still was also seized. A case was got registered against the petitioner. Lahan in the drums was got tested from Excise Inspector. The sample was sent to the Chemical Examiner who sent his report Ex. PE.

The prosecution case rested on the testimony of Excise Inspector Harbhaksh Singh PW1, Head Constable Santokh Singh PW2 and Constable Avtar Singh PW3. Report, of the Chemical Examiner Ex PE. and affidavits of formal witnesses Ex. PF and Ex. PG were also tendered in evidence.

At trial the contention of the petitioner was that he had a dispute regarding 20 killas of land with one Ajmer Singh and security proceedings had been initiated against him and Ajmer Singh as well. He was later on falsely involved in this case. One Witness was examined by him in his defence.

I have heard the learned counsel for the parties.

It was contended on behalf of the petitioner that charge against the petitioner was not proved beyond reasonable doubt and the case of the prosecution suffered from various infirmities. The only evidence against the petitioner consisted of two petty police officials i.e. Head Constable Santokh Singh and Constable Avtar Singh. The police party was on patrol duty and no independent witness was joined. Moreover, the case property was not duly connected. A reference was made to the statement of Head Constable Shamsher Singh who deposed that there was no chit fixed on the drums to indicate the identify the case. The colour of liquor in three bottles was different and there was no number of Register No. 19 on any of the case property. The drums were completely empty and there was no residue or any kind in the drums.

The contentions of the learned counsel for the petitioner are quite tenable. The statements of the witnesses show that the police officials were in a position to join independent witnesses with them but no effort was made to associate any one, PW2 admitted that on their way to the place of recovery they had passed through Basti Bhoru but he never tried to associate any person from that village. Mere statements of two petty police officials are not sufficient to sustain conviction of the petitioner because they are interested in the result of the case and success of their investigative efforts. The Courts have always expected independent corroboration to such recoveries. In a case like the present one where the investigating officer prefers not to join any member of the public, an inference is normally down that he wanted to keep the entire occurrence as a secret and that shall attach a taint to the testimony of investigating officer. In the absence of independent corroboration it will be unsafe to base conviction for an offence for which harsh punishment has been provided. Dilbagh Singh v. State of Haryana, 1991(1) Recent Criminal Reports 35 (P&H) is an authority on this point.

The case of the prosecution further suffers from the infirmity that the case property was not produced in Court when statements of the Excise Inspector and Constable Avtar Singh were recorded. Head Constable Santokh Singh PW2 admitted that the case property did not bear any slip containing the number of the case and particulars of the petitioner so as to connect the same with the distillation of illicit liquor by the petitioner. Although the drums were stated to contain 100/200 kilograms of Lahan, they were found empty, when produced in Court without any residue. It was the duty of the prosecution to keep the material exhibits of the case intact till they mere produced in Court. In these circumstances the case of the prosecution cannot be considered as free from doubt and the petitioner is entitled to benefit of doubt.

For the reasons recorded above, I allow the revision petition, set aside the conviction and sentence of the petitioner and acquit him of the charge. Fine if recovered, shall be refunded to him.