State of Punjab vs Mehal Singh

S.S. Rathor, J.

The respondent was accused of having committed an offence under Section 61(1)(c) of the Punjab Excise Act. 1914 on 1441984 when he was found distilling illicit liquor near a pond in the area of Basti Araian Wali within the jurisdiction of police Station Guru Harsahai, District Ferozepur.

Detail of the prosecution story need not be given as the same has been mentioned in paragraph 2 of the impugned judgment. During the trial the prosecution examined as many as three witnesses namely; HC Sajjan Singh (PW 1), HC Avtar Singh (PW 2)and Shri J C. Sharia, Excise Inspector (PW 3)to prove the factum of recovery of a working still at the spot being run by the accused. The link evidence was sought to be proved by examining PW 4 Avtar Singh, Constable and PW 5 HC Sukhwinder Singh, to prove their formal affidavits Exts. PE and PF respectively. The report of the Chemical Examiner (Ext. PG) was also tendered in evidence. After closure of the prosecution evidence, the accused when examined under Section 313 Cr.P.C. denied the allegations of the prosecution version and pleaded innocence. In defence, Constable Kewal Krishan (PW 1) was examined.

The trial Court acquitted the accused and his acquittal has been challenged by the State through the filing of this appeal.

The trial Court acquitted the accused on the short ground that link evidence was missing in the case. This matter by the trial Court has been dealt with elaborately in paragraph No. 7 of its judgment which is reproduced below :

"It was argued by the learned counsel for the accused that the link evidence is missing in this case. This contention has force. According to the constable Kewal Krishan DW 1 firstly the sample was sent to the office of Chemical Examiner through constable Sukhdev Singh and the sample was received back with the objection in the police station. Then the sample was taken by constable Avtar Singh and the same was received back with objection and third time the sample was taken by constable Avtar Singh to the office of Chemical Examiner. The affidavit of constable Avtar Singh Ex. PE shows that he took the sample on 30.5.1984 and deposited the same in the office of Chemical Examiner on the same day. Constable Avtar Singh has nowhere declared in his affidavit about the taking of the sample earlier to the office of Chemical Examiner. Constable Kewal Krishan DW 1 has categorically deposed in his statement that on 16.5.84 constable Avtar Singh took the sample to the office of Chemical Examiner. Even the affidavit of MHC Sukhwinder singh Ex PF shows that he handed over the sample to Constable Avtar Singh on 30.5.84. The affidavit of MHC Sukhwinder Singh is silent about the taking of the sample by constable Sukhdev Singh or by constable Avtar Singh earlier. Constable Kewal Krishan DW 1 has categorically deposed that on 19.4.84 the sample was taken by Constable Sukhdev Singh to the office of Chemical Examiner and then on 16.5.84 the sample was taken to the office of Chemical Examiner by Constable Avtar Singh and both the times the sample was received with objection and finally the sample was taken by constable Avtar Singh on 30.5.84 to the office of the Chemical Examiner. The prosecution has not filed the affidavit of constable Sukhdev Singh as well as the affidavit of Constable Avtar singh regarding taking over of the sample to the office of chemical Examiner on 16.5.84. So without these affidavits it cannot be said that the case property or sample remained intact. So the link evidence is missing in the case."

We have gone through the record of the case in the light of the observations and conclusions arrived at by the trial Court in the above quoted para of its judgment about the missing of link evidence in the case. DW 1 Constable Kewal Krishan was examined by the accused on the basis of the Police record. He deposed that a pint relating to this case is recorded to be sent on 16.5.1984 vide sr. No. 363/21 to the office of the Chemical Examiner, Patiala through Avtar Singh Constable No. 1185 and that same was received back with some objections raised by the office of the Chemical Examiner, Patiala. Again on 30.5.1984 sample of pint belonging to this case was sent vide road certificate no, 38/21 to the office of Chemical Examiner Patiala, again through the same constable i.e. Avtar Singh, Affidavit of Constable Avtar Singh is ext. PE on record. Nothing has been stated in Ext. PE(affidavit of Avtar Singh, Constable No. 1185) that he took the sample for analysis on 16.5.1984 also. In view of this, the affidavit of this witness is not a legal piece of evidence. Similarly affidavit of MHC Sukhwinder Singh (Ext.PF) shows that the sample was handed over to Constable Avtar singh on 30.5.1984. The affidavit of MHC Sukhwinder Singh is silent about taking of sample by Constable Avtar Singh earlier. In this case, the prosecution was required to prove that the incriminating material i.e. components of working still with distilled illicit liquor and Lahan recovered from the possession of the accused from the spot were deposited in the Malkhana with seals intact affixed at the spot. Further the illicit liquor alleged to have been recovered and deposited in the Malkhana of the Police Station reached the office of the Chemical Examiner in safe and intact condition without being tampered with at all. This is what is called link evidence. In view of affidavits Exts. PE and PF, it can certainly be said that prosecution has failed to prove that the property which was taken from the Mulkhanna on 16.5.1984 reached safe with seals intact in the office of Chemical Examiner and the moment it was received back in the Police Station, it was in its original position. In the absence of this it can safely be presumed that the property might have been tampered with. With this missing ling evidence,the benefit of doubt has to go to the accused.

In view of the discussion made above, the judgment of the trial Court is perfectly just and legal. There is no misappreciation or misreading of evidence on record. Relevant affidavits on record have been construed correctly. Finding no scope of interference in the judgment passed by the trial court, the appeal filed by the State is ordered to be dismissed.