State of Punjab vs Sardul Singh

Harmohinder Kaur Sandhu, J.

On 24.4.1980, A.S,I. Darshan Singh of Police Station ''C'' Division, Amritsar, was patrolling the area along with other police officials and Darshan Singh PW. When the police party reached near the abadi of Kohrian, Sardul Singh respondent and one Satnam Singh were seen coming from the opposite direction. On suspicion they were apprehended. Personal search of the respondent was conducted which led to the recovery of two bladders containing illicit liquor from a gunny bag. Sample was taken from each bladder and the liquor from the bladders was transferred into 40 bottles. The sample and the bottles were sealed with the seal bearing impression ''DSM'' which after use was handed over to Darshan Singh PW. A recovery memo was prepared and a ruqqa was sent for registration of the case. Rough site plan showing the place of recovery was prepared. The case property was deposited with Moharrir Head Constable with seals intact. Samples were sent to the Chemical Examiner who reported that the contents of the sample constituted illicit liquor. On these allegations the respondent was prosecuted for an offence under Section 61(1)(a) of the Excise Act by Shri U. S. Momi, Judicial Magistrate Ist Class, Amritsar.

The respondent pleaded not guilty and contended that no illicit liquor was recovered from his possession. The recovery was foisted on him.

After going through the record and bearing the counsel for the parties the learned trial Court found that charge against the respondent was not proved beyond reasonable doubt and acquitted the respondent vide its judgment dated 2321982. It is this judgment which has been assailed by the State of Punjab by way of present appeal

Sh. Randhir Singh, Assistant Advocate General, Punjab, learned counsel for the appellant contended that there was sufficient evidence on record to prove the recovery of illicit liquor from the possession of the appellant, even though the investigating officer did not appear in Court for his crossexamination. The prosecution had examined Constable Bhupinder Singh who had witnessed the recovery and his statement was corroborated by Darshan Singh PW who was an independent witness and was not shown to have any bias against the respondent. The assertion of the learned counsel, however, does not hold good as the charge against the respondent was not substantiated by any independent, cogent and convincing evidence. The investigating officer ASI Darshan Singh made his statement in Court but his crossexamination was deferred. Subsequently various opportunities were granted to him but he did not appear in Court and his testimony was, therefore, not tested on the avail of crossexamination. He was the most important witness in the case as he was alleged to have effected search of the respondent, and recovered illicit liquor from his possession. He prepared the various documents on which the prosecution placed reliance but as he was not crossexamined, his testimony could not be taken into consideration and in this way material evidence in the case was missing.

The testimony of other two witnesses examined in the case namely Darshan Singh PW I and Constable Bhupinder Singh PW 3 did not inspire conviction. Crossexamination of Bhupinder Singh showed that he had no knowledge regarding any fact about which he was questioned by the defence counsel and the only inference that could be, drawn was that he had not witnessed any recovery. Similarly, Darshan Singh PW, who was only a chance witness, could not be called an independent witness. The suggestion given to him was that previously too he was cited as a prosecution witness in numerous cases but he could not deny the suggestion. Even the case property was not duly connected with the respondent. Darshan Singh PW (1) admitted that there was no liquor in the bottles Ex. P.S. to P. 8 and the rest of the bottles did not bear any chit or seal which were necessary to connect the case property with the respondent. He also admitted that liquor could be taken out from the bottle Ex. P. 24. The witnesses were also discrepant on various particulars regarding the place and the manner in which the empty bottles were procured. The learned trial Court rightly appreciated the evidence and acquitted the respondent. The appeal is devoid of any force and the same is hereby dismissed.