Suba Singh vs State of Punjab

A.S. Bainsa, J. (Oral)

The petitioner and his coaccused Chiman Lal were convicted for an offence under section 61(1)(a) of the Punjab Excise Act and sentenced to undergo R.I. for 11/2 years and to pay a fine of Rs. 1000/ each or in default of payment of fine to undergo further R.I. for the four months by the Chief Judicial Magistrate, Ferozepur. On appeal, his conviction and sentence was upheld by the learned Additional Sessions Judge, Ferozepur, but his coaccused Chiman Lal was given the benefit of doubt and his conviction and sentence were set aside. The petitioner has challenged his conviction and sentence by way of this petition.

The prosecution case briefly, as set up at the trial, was that on 15th September, 1980 at about 5.00 a.m. Jaswant Singh and Jarnail Singh, Head Constables along with other Police officials were holding Naka Bandi near a place known as Hada Rori. A threewheeler bearing No. PUW 4935 driven by Chiman Lal, coaccused, and Suba Singh, petitioner, sitting therein on the rear seat, passed by the police party and on being signaled by the police it did not stop. The police party chased it on cycles. The petitioner threw away the three tubes containing illicit liquor in a nearby lane and the petitioner was apprehended when he tried to escape with one of such tubes. The coaccused Chiman Lal who was driving the threewheeler, however, managed to escape by speeding up the three wheeler. 180 mls. of illicit liquor was taken out as sample from each tube and the rest of the liquor contained in the three tubes was adjudged to be 300 bottles. The samples and the tubes were sealed with the seal mark "JS" and were taken into possession vide Memo. Exhibit PA. The sample were found to be of illicit liquor on analysis.

At the trial, the petitioner denied the prosecution allegations and three witnesses were examined in defence.

The prosecution case rests on the testimony of P.W. 1 Jarnail Singh, Head Constable and P.W. 2 Jaswant Singh, Head Constable. They have supported the prosecution version as given in the earlier part of the judgment but their testimony does not inspire confidence. It is highly improbable that the police party would have chased the threewheeler on the cycles and if the threewheeler had been seen by the police party, the persons sitting therein would not have thrown the three tubes of the illicit liquor in the lane, rather they would have escaped by speeding up the three wheeler. It is highly improbable that the petitioner got down from the threewheeler and was trying to pick up one of the tubes when arrested. The whole story seems to be a concocted one and does not appeal to reason at all. Moreover, none of the three tubes was produced in the court with liquor and there is no evidence that the liquor was destroyed. Hence, in the absence of any liquor in the tubes it is very difficult to connect the petitioner with the crime. Register No. 19 of Police Station Ferozepur City was summoned and the same was brought by Head Constable Ujagar Singh, D.W. 1 and therein there is no mention of any damage done to the three tubes. Even in the affidavit of Krishan Kumar, Moharrir Head Constable (Exhibit PF) there is no mention of deposit of any tubes containing liquor in the police station by Head Constable Jaswant Singh. There is mention of only sample nips and sample seals. The affidavit also does not even mention that any tubes was damaged or liquor destroyed in the Malkhana. The estimate regarding 300 bottles of liquor in the tubes is conjectural as it was never measured and also there is no evidence on the record to show that the liquor in the tubes was measured.

Counsel for the State relied upon Balraj Singh v. State of Punjab, 1982 C.L.J. (C & Cr.) 222. Even the courts below have also based their conviction after relying upon the observations made in this authority but the courts below failed to appreciate the observations of the Division Bench in para 15 of this judgment which are as follows :

"I must, however, sound a strong note of caution that the view I am inclined to take must not be misunderstood to mean as if the production of the case property is to be dispensed with at the trial. 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."

Thus, the aforesaid authority is of no help to the prosecution. There is no quarrel with the principles of law as laid down in the aforesaid authority. The only observation is that the case property is a sort of corroborative evidence and that mere nonproduction of part or the whole of the case property would not by itself vitiate the subsequent conviction of the accused but in the same authority it is observed that the principle must not be misunderstood to mean as if the production of the case property is to be dispensed with the trial and normally it is the duty of prosecution to do so and in the present case as observed earlier the prosecution has not give any explanation as to how the liquor disappeared from the tubes. 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.

For the reasons recorded I am of the view that it is not safe to maintain the conviction of the petitioner and accordingly he is given benefit of doubt and acquitted.

In the result, the petition is allowed and the conviction and sentence as recorded by the courts below are set aside. Fine, if paid, be refunded to the petitioner.