Suresh Pal vs State of Haryana

A.N. Jindal, J

The trial Court vide judgment dated 18.02.2000, convicted and sentenced the accused-Petitioner (herein referred as ''the accused'') to undergo

rigorous imprisonment for a period of six months and to pay a fine of Rs. 2,000/- u/s 61(1)(c) of the Punjab Excise Act (for brevity ''the Act'').

The judgment was maintained by the Appellate Court on 23.08.2001.

On 30.01.1992, ASI Ram Mehar along with other police officials was present at Bus-Stand Gondar in connection with patrolling where he

received a secret information with regard to distilling of the illicit liquor by the accused in the land taken on lease by him. Accordingly, ruqa was

sent on the basis of which first information report was lodged. When the raid was conducted, the accused was found distilling illicit liquor by fueling

the fire. The still was dismantled and cooled. A drum, containing 50 kgs. Lahan, two bottles of distilled liquor and some components of the still

were taken into possession. The case was investigated.

On submission of the report u/s 173 Code of Criminal Procedure, the accused was charged accordingly to which he pleaded not guilty and

opted to contest.

In order to substantiate the charges, the prosecution examined ASI Ram Mehar Singh (PW1), Head Constable Sunehra Singh (PW2),

Constable Ram Kumar (PW3) and Kehar Singh (PW4).

In his statement u/s 313 Code of Criminal Procedure, the accused denied all the allegations and pleaded his false implication. However, no

evidence was led in defence.

The trial resulted into conviction. His appeal also failed.

Arguments heard. Record perused.

Sher Singh, an independent witness, joined by the prosecution, has not been examined; no other witness from the locality has been summoned

by the Investigating Officer to attest the recovery memo; no excise inspector was produced in order to prove if the contents, contained in the drum,

were fit for distillation and Investigating Officer has also not made any such statement that the contents, contained in the drum, were fit for

distillation. I also find force in the contention, raised by the counsel for the Petitioner that case property was not produced and put to the witnesses

to corroborate their version.

Admittedly, the case property including lahan and other components of the working still was not produced in the Court and no explanation has

come-forth as to why the case property was not produced. The case of the prosecution hinges on the testimonies of two official witnesses without

any corroboration from any other source. The case property was a corroborative piece of evidence to the oral testimony and in its absence, it

cannot be said that the accused was found in illegal possession of such contraband. It was observed in case Suba Singh v. State of Punjab, 1984

(1) RCR 429 as under:-

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 non-production 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 at the trial and normally it is the duty of the

prosecution to do so and in the present case as observed earlier the prosecution has not given 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 non-production of the case property benefit must be given to the accused.

The instant case is on the better footings. In this case, neither the liquor nor the drum containing lahan or the components of the still were

produced in the Court, therefore, it was very difficult to contradict or confront the Investigating Officer in order to confirm if the said case property

was recovered from the possession of the accused. Counsel for the Petitioner in order to prove te importance of production of the case property in

Court and the obligation of the malkhana people to preserve the same till it is produced in the Court, has relied upon the judgment delivered in case

Singara Singh v. State of Haryana, 1997 (2) RCR (Cri) 783 wherein it was observed that merely the case is supported by the official witnesses

will not put an end to the matter and further observed as under:-

Preserving a case property and producing it during the course of trial is of utmost importance. If the case property is perishable, the order of the

court can be obtained. Otherwise, an attempt must be made to keep the property in safe custody. It is a valuable piece of evidence. The Punjab

Police Rules as applicable to the State of Haryana provide the same guidelines. Under Rule 22.15, it is the responsibility of the officer-incharge of

the police station to examine the property twice a month because he is supposed to be incharge of the same. Rule 22.15 reads as under:

22.15. Public Property - Subject to the orders and responsibility of the officer-in-charge of the police station, the station clerk shall be considered

to be in charge of all public property including money and case property in his station house. Every officer in charge of the station shall examine the

property at least twice a month and shall report in the following Monday''s diary that he has done so. If property is found to be incomplete or to be

in any way damaged, he shall add to his report the names of the persons responsible for the loss or damage.

He shall also see that the property in connection with a case is expeditiously disposed of according to magisterial orders on the conclusion of the

case.

All property shall be examined by officers-in-charge of police stations on receiving and handing overcharge and by station clerks on relief. All

damages and shortages must then be carefully noted and reported to the Superintendent of Police. Furthermore, under Rule 27.17 It is the duty of

the prosecuting agency to maintain the said property till such time the final orders are passed. Sub-rule (1) of Rule 27.17 is material and reads as

under:-

27.17(1) At headquarters the head of the prosecuting agency, with the assistance of his staff, shall take charge of weapons, articles and property

connected with cases sent for trial and shall be responsible for their safe custody until the case is decided. When final orders are passed in the

case, such weapons, articles and property shall, if not made over to the owner, be made over to the sheriff.

Lastly his Lordship observed as under:-

Reverting back to the facts of the present case, one must look at the explanation offered. It is not that the case property had been stolen. Merely

stating that it had leaked will not satisfy a trained mind. There is nothing on the record to indicate that an entry was made in the roznamcha when

leakage was noticed. Even if no such entry was made, it should have been brought to the notice of the Court. Such a huge quantity of lahan could

not vanish in to thin air. Had the case property been produced, the witnesses had to identify as to what was recovered. A prejudice necessarily is

caused to the accused-Petitioner because in a given set of circumstances, he could seek a further taking of the sample. The defence counsel rightly

argued that prejudice had been caused. When such is the investigation and nature of material forthcoming, it would be unsafe further for rely on the

testimonies of the official witnesses. The Petitioner is entitled to an acquittal.

While placing reliance over the aforesaid judgments, it is observed that in the absence of production of the case property in the Court, the

recovery of illicit liquor from the possession of the accused cannot be said to be established beyond reasonable doubt. The aforesaid aspects were

not taken note of by the Courts below while recording the findings of the conviction against the accused. Resultantly, interference at my end has

become inevitable.

For the aforesaid reasons, this petition is accepted; impugned judgment is set aside and the Petitioner is acquitted of the charge framed against

him. He is directed to be set at liberty forthwith. Bail bond and surety bond, furnished by him, stand discharged. Fine, if any deposited, be

refunded.