Singara Singh vs State of Haryana

V.S. Aggarwal, J. (Oral)

The learned Additional Chief Judicial Magistrate, Kurukshetra, held the petitioner guilty of the offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to Haryana. The petitioner was sentenced to undergo rigorous imprisonment for three months and a fine of Rs. 1,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for two months. The petitioner preferred an appeal. The learned Sessions Judge, Kurukshetra on 1.5.1987 dismissed the appeal.

The relevant facts of the prosecution case are that on 13.5.1984 ASI Chaman Lal along with HC Kanshi Ram and C. Narinder Singh were present at Bus Stand Masana. They were conducting the excise checking. Secret information was received that petitioner Shingara Singh a resident of Masana sells illicit liquor and in case a raid is conducted, liquor or lahan could be recovered from him. On this information, the ASI alongwith his police party went to the fields of the petitioner. The petitioner was present at his tubewell. He was interrogated. The petitioner made a disclosure statement that he was kept concealed a drum containing lahan in a heap beneath toori (fodder) and that he could get the same recovered. His statement was recorded. In pursuance of that statement, he led the police party near that heap. The petitioner got recovered a drum. It contained 100 Kilograms of lahan. After drawing the samples the drum and the sample were sealed. They were deposited in the Malkhana. Subsequently, the representative sample was sent for chemical analysis. The report revealed that it was lahan fit for distillation. This led to the filing of the challan in court.

The learned trial Court on appraisal of the evidence concluded that it has been established on basis of the testimonies of the official witnesses that lahan was recovered from the possession of the petitioner. Accordingly the petitioner was held guilty as referred to above followed by the order of sentence. An appeal was preferred but was dismissed by the learned Sessions Judge. It was concluded that on basis of the testimonies of the official witnesses which establishes the guilt of the petitioner, there is no ground to interfere in the impugned judgment of the trial court. As a result of the dismissal of the appeal, the present revision petition has been filed.

Perusal of the record shows that one Karta Ram was a public witness and had joined the police party. According to the prosecution version the recovery was effected in his presence including the disclosure statement made by the petitioner. In court the witness took a somersault assault and did not support the prosecution case. The rest of the evidence of the prosecution comprised of ASI Chaman Lal and HC Kanshi Ram. Both official witnesses did support the prosecution version. When the public witness does not support the prosecution case, extra care and caution is required while scrutinizing the testimonies of the official witnesses. It is not that no conviction can be based on the testimonies of the official witnesses but the facts of each case will have to be weighted on their own merits.

Merely because in the present case the official witnesses have supported the prosecution version, will not put an end to the matter. During the course of trial, the case property including the lahan had not been produced. Both the courts below took note of the fact but concluded that nonproduction of the same will not prove fatal. Learned Assistant Advocate General also took up the same line of argument. He urged that merely because if illicit liquor or case property was not produced, it should not prove fatal to the prosecution case.

The said argument is without any merit. Preserving a case property and producing it during the course of trial is of utmost importance. If the case property is perishable, the order of the court can be obtained. Otherwise, an attempt must be made to keep the property in safe custody. It is a valuable piece of evidence. The Punjab Police Rules as applicable to the State of Haryana provide the same guidelines. Under Rule 22.15 it is the responsibility of the officerincharge of the police station to examine the property twice a month because he is supposed to be incharge of the same. Rule 22.15 reads :

"22.15. Public Property. Subject to the orders and responsibility of the officerincharge of the police station, the station clerk shall be considered to be in charge of all public property including money and case property in his station house. Every officer in charge of the station shall examine the property at least twice a month and shall report in the following Monday''s diary that he has done so. If property is found to be incomplete or to be in any way damaged he shall add to his report the names of the persons responsible for the loss or damage.

He shall also see that the property in connection with a case is expeditiously disposed of according to magisterial orders on the conclusion of the case.

All property shall be examined by officersincharge of police stations on receiving and handing over charge and by station clerks on relief. All damages and shortages must then be carefully noted and reported to the Superintendent of Police."

Furthermore under Rule 27.17 it is the duty to maintain the said property till such time the final orders are passed. Subrule (1) of Rule 27.17 is material and reads :

"27.17(1). At headquarters the head of the prosecuting agency, with the assistance of his staff, shall take charge of weapons, articles and property connected with cases sent for trial and shall be responsible for their safe custody until the case is decided. When final orders are passed in the case, such weapons, articles and property shall, if not made over to the owner, be made over to the sheriff."

In the present case, one is constrained to observe that the said rules have totally been ignored. It is true that in the case of Balraj Singh v. State of Punjab, 1982 Cr.L.J. 1374 this question had come up for consideration and the court had answered that mere nonproduction of part or whole of the case property would not vitiate the conviction. But in paragraph 15 the Division Bench gave the following note of caution :

"I must, however, sound a strong note of caution that the view I am inclined to take must not be understood to mean as if the production of the case property is to be dispensed with at the trial. Normally it is the duty of the prosecution to do so. Equally if some thing vital turns on it the accused can insist upon its production and the refusal to do so would be a factor for adverse notice against the prosecution by the Court. But in the ultimate analysis, the issue is one of the prejudice caused to the accused and any failure of justice resulting therefrom. In this context the question whether such an objection could be, but has not been raised at the earliest stage of trial is of considerable relevance. In a case of innocent or inadvertent nonproduction of the case property material prejudice is to be shown by the accused in order to claim the vitiation of the conviction. No abstract or absolute rule that "no case property, no conviction", can possibly be raised to the pedestal of a rule of law, because this by itself is likely to occasion a failure of justice. As has been said earlier, the substantial issues in a criminal trial like the proof and punishment of crime should not be converted into a plaything of technicalities. If the prosecution has innocently or inadvertently failed to exhibit the case property, yet the accused even though fully represented by counsel makes no objection or grievance thereof at the time of the trial, it would hardly lie in his mouth at the revisional stage to say that all the proceedings stand vitiated even though connived at or wholly condoned by his own conduct."

This position had been considered by a Single Judge of this Court in the case of Suba Singh v. State of Punjab, 1984(1) RCR 429 and the court observed :

"It seems that the aforesaid authority is being misused by the prosecution and the courts below in the present case without reading the whole of the judgment have blindly convicted the petitioner. The principle of law as laid down in the aforesaid authority is to be applied cautiously in the facts and circumstances of each case if there is plausible evidence that the case property could not be produced or was destroyed. In the absence of any plausible explanation for nonproduction of the case property benefit must be given to the accused."

From the aforesaid, it is clear that an attempt must be made to preserve the case property till such time the petition or the case is finally decided or adjudicated. In final analysis though the trial may not be vitiated as held in the case of Balraj Singh (supra) but it has to be seen ultimately if any prejudice is caused to the petitioner or not. If prejudice is caused, necessarily the benefit would be accruing to the accusedpetitioner.

Reverting back to the facts of the present case, one must look at the explanation offered. It is not that the case property had been stolen. Merely stating that it had leaked will not satisfy a trained mind. There is nothing on the record to indicate that an entry was made in the roznamcha when leakage was noticed. Even if no such entry was made, it should have been brought to the notice of the court. Such a huge quantity of lahan could not vanish in to thin air. Had the case property been produced, the witnesses had to identify as to what was recovered. A prejudice necessarily is caused to the accusedpetitioner because in a given set of circumstances, he could seek a further taking of the sample. The defence counsel rightly argued that prejudice had been caused. When such is the investigation and nature of material forthcoming, it would be unsafe further to rely on the testimonies of the official witnesses. The petitioner is entitled to an acquittal.

As a result of the reasons given above, the petition is allowed. The judgments and the order of sentence passed by the courts below are set aside. The petitioner is acquitted giving him the benefit of doubt.