Subeg Singh vs State of Haryana

S.D. Bajaj, J.

Inside his field towards the west of village Thai in Police Station, Asandh of Karnal District in Haryana State accused petitioner Subeg Singh was found working a still for distillation of illicit liquor around 3.00 p.m. on April 11, 1982. On being prosecuted for it under Section 61 of the Punjab Excise Act I of 1914, vide its impugned judgment dated December 18, 1985 the learned trial court convicted him of the offence with which he stood charged and vide sentencing order dated December 19, 1985, sentenced him to undergo rigorous imprisonment for a period fine the convicted accused was ordered to undergo rigorous imprisonment for further period of six months. Criminal Appeal No. 1 of 1986 filed against it before the learned lower appellate Court was dismissed by it on April 17, 1986. Hence the Criminal Revision No. 581 of 1986 in this Court.

I have heard Mrs. Sushil Dogra, Advocate, with Mr. R.C. Dogra, and Miss Nivedita Dogra, Advocates, for the petitioner. Shri D.S. Bishnoi, DAG Haryana for the respondent State and have perused the entire relevance material on record very carefully.

Two case with FIR Nos. 119 and 120 were registered against the petitioner in Police Station Asandh on April 11, 1982. Both these cases were under Section 61 of the Punjab Excise Act; one in respect of the Lahan recovered in pursuance of disclosure statement made by the accused and the other in respect of the working still. In the lahan case, the accused was acquitted by the learned trial court on October 20, 1986 disbelieving the deposition of investigating officer Udey Chand and Excise Inspector Yash Pal. It is an irony of fate for the petitioner that the same witnesses have been believed against him by the learned trial court in the case of illicit distillation in spite of want of association in investigation by the investigating officer of independent witnesses of the locality. Link evidence in respect of seals on incriminating substances having not been tampered with; while these articles were in custody at the Malkhana or in the course of transit to the office of Chemical Examiner having not been produced and the incriminating officer having retained the seal used for sealing the incriminating articles with himself after use for two days, till the sample articles reached the office of the Chemical Examiner. All the three circumstances narrated above sound the death knell of the prosecution case set up against the accused petitioner.

It has repeatedly been held by this Court in Raghbir Singh and another v. The State of Haryana, 1990(2) Chandigarh Law Reporter 691; State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361 ; State of Punjab v. Gurnam Singh, 1991(3) Recent Criminal Reports 412 and Gurvel Singh v. The State of Punjab, 1992(1) Recent Criminal Reports 114 that failure of the investigating officer to join independent witnesses of the locality in investigation sounds the death knell of the prosecution case set up against the accused, conviction based by the learned trial court on the statements of the police and excise officials cannot be sustained and the accused is entitled to secure an acquittal on this score. In line with the ratio of the decisions aforesaid conviction of accused Subeg Singh in the present case also falls through and has to be set aside.

Then again the affidavit of Moharrir Head Constable as also the constable who carried the sample of distilled illicit liquor to the Chemical Examiner has not been brought on record and duly proved. Link evidence is therefor, missing. It was against held by this Court in Resham Singh v. The State of Punjab, 1981 Chandigarh Law Reporter 304 and Gurvel Singh v. the State of Punjab, 1992 (1) Recent Criminal Reports 114 that omission to produce link evidence aforesaid is again fatal to the prosecution case. In the present case, there is also added thereto failure on the part of investigating officer to make over his seal used on the sample if incriminating articles to another person (in this case ASI joined as witness of sealing the sample) for two days; till those samples had reached the Chemical Examiner. The omission aforesaid brings in the possibility of these samples being tampered with by the investigating officer during transit initially from the place of recovery to the Malkhana of Police Station Asandh and thereafter from the Malkhana of Police Station Asandh and thereafter from the Malkhana to the Police Station aforesaid to the office of the Chemical Examiner.

For the legal infirmities aforesaid Criminal Revision No. 581 of 1986 succeeds and is allowed. Accused Subeg Singh is given by the benefit of doubt and acquitted. The accused is on bail from this Court vide order dated May 6, 1986. Bail bond furnished by his surety and the personal bond put in by the accused petitioner himself before the learned trial court shall both stand discharged.

JUDGMENT accordingly.