State of Punjab vs Gurdial Singh

S. S. Rathor J.

On 2811984, ASI Kartar Singh (PW3) along with his subordinate Police officials was roaming about in the area on patrol duty. When the Police party reached near the cremation ground which was at some distance from Basti Labh Singh, smoke was seen coming out from some places. On suspicion, the Police party reached at the place from where smoke was emanating and found the accused distilling illicit liquor through a still. He was apprehended and all the components and still apparatus were taken into possession vide recovery Memo. Ext. PA attested by the Police officials and signed by the accused. Ruqa Ex. PB was sent through Constable Om Parkash by ASI Kartar Singh (PW) and formal FIR Ex. PB/1 was recorded. Rough Site planExt. PC was prepared. The case property was stated to have been deposited with the MHC in due course. The contents of lahan were tested by the Excise Inspector on 2911984 and he found the same to be fit for distillation of illicit liquor. After completion of the challan, the accused was put to trial. On appearance in the Court, charge under Section 61 (1) (c) of the Punjab Excise Act, 1914 was framed and the accused pleaded not guilty and claimed trial. To substantiate the charge framed against the accused, during trial examined PW1 Ram Rattan Constable, PW2 Shri J.C. Sharla, Excise Inspector and PW3 ASI Kartar Singh. In addition to this, report of the Chemical Examiner Ex. PD/1 and affidavits Exts. PE & PF of the formal witnesses were tendered and the prosecution evidence was closed.

The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein he emphatically denied the prosecution version and claimed false implication.

During the trial, admittedly, the entire case property a longwith the components of the working still alleged to have been recovered from the accused when the accused was working the still, have not been produced during the trial. The trial Court took serious note of this fact as a fatal infirmity in the prosecution case and as such, passed the JUDGMENT of acquittal and in doing so the trial Court placed reliance on two judgments of this Court reported as Shabeg Singh v. State of Punjab, 1983 Chandigarh Criminal Cases 1 and Suba Singh v. State of Punjab, 1981 Chandigarh Criminal Cases 250. Feeling dissatisfied with the acquittal order passed by the trial Court in favour of the accused respondent, the State has come up in appeal which is being disposed of vide this judgment.

The only argument raised by Mr. S.S. Kang, Deputy Advocate General, Punjab is that, nonproduction of the case property should not have been the sole basis of acquittal and in support of this contention, he has placed reliance on a Division Bench judgment of this Court reported as Balraj Singh v. State of Punjab, 1983 CLR 318.

We have given deep thought to the contention raised by Mr. Kang. The aforesaid two Single Bench judgments have been rendered by brother A.S. Bains, J. (as be then was) in the latter judgment i.e. Suba Singh v. State of Punjab (supra), the Division Bench judgment in Balraj Singh''s case (supra) was also considered and brother A.S. Bains, J. recorded the reasons in Para 5 of the judgment. Under these circumstances, the trial Court committed no error of law in passing the order of acquittal applying the judgment of Suba Singh''s case (supra) to the facts of the present case. We would like to make it clear that non production of the case property during the trial cannot be excused as of rule of course, production of case property in the court is a corroborative piece of evidence. But the evidenciary value of such piece of evidence would depend upon the facts of each case. In every case, a trial Court is not free to dispense with the production of the case property. Before doing the so, trial Court is expected to weigh in mind the importance of the case property and the amount of prejudice the accused is likely to suffer, for its non production. To conduct a fair trial is a pious duty of the Court. We also strongly approve and place reliance on the observations of the Division Rench in Balraj Singh''s case (supra) in the same terms as done by brother A.S., Rains J. in Suba Singh''s case (supra).

The prosecution even otherwise has miserably failed to substantiate ate its case against the accused. Admittedly, the Police Party headed by ASI Kartar Singh (PW3) was on patrol duty. A Police party is always on patrol duty for checking of commission of offences in the area and in such circumstances, the head of (the Police a party/Investigating Officer is required to join some independent person as a member of the party to lend credence to its ultimate action. In this case, no effort was made to associate any witness either in the raiding party or before the arrest of the accused. The police, party had seen smoke coming out at a distance. Presumably it was believed that some illicit still was working and such suspicion would particularly arise when the Police party was on patrol duty. Still on such greve suspicion, no attempt was made to join some independent witness. The matter does not rest here, PW1 Constable Ram Rattan has admitted that another still was also working at a distance of about 10 Karams from the still in question. He has further admitted that the place of occurrence was near a road but it was not a busy road. The distance between the road and the working still was stated to be 20 Karams by this witness. It is further in his evidence that a Railway line was at a distance of 20 Karams on the other side of the place of occurrence in view of this fact, it is quite clear that" the place of occurrence was between road and Railway line. Apparently the place of occurrence was visible and accessible to every one PW4 ASI Kartar Singh has tried to fill in this lacuna in the prosecution case. He has stated that before the accused was overpowered, efforts were made to join a person from the public in the party but no one agreed. In crossexamination, he admitted that he did not remember as to how many persons were called to join the party. He admitted that no legal action was taken against them. The said witness could not give the names of the persons whom he tried to join in the investigation. No such effort on his part finds mention in (the Ruqa Ex. PB sent to the Police Station for registration of the case. In fact, it is clear that he pleaded ignorance about she material feels. So much, so, he has admitted that he made the statement before the Court after going through the Police fill .

Even otherwise, there are material contradictions between the statements of PW1 Ram Rattan and PW3 ASI Kartar Singh. After sealing of the material recovered, the seal was handed over to Constable Ram Rattan (PW1). PW1 has stated that he handed over the seal to the ASI in the evening at about 7.00 p.m. whereas PW3 stated that he did not know as to when the seal was handed over to him after 1/12 days of the occurrence. Both these witnesses materially contradicted each other as to the location of place of occurrence and surroundings on different sides of the place of occurrence. In view of this, it would not be safe to base conviction on the sole statement of official witnesses whose statements are otherwise discrepant and untrustworthy. Accordingly, the prosecution case against the accused respondent is found extremely doubtful and order of acquittal passed by the trial Court is not to be interfered with. Consequently, the appeal filed by the State stands dismissed.