Surjit Singh vs State of Punjab

B.S. Yadav, J.

The prosecution story, in brief, is that on 6.8.1979 Head Constable Natha Singh, along with Constable Naranjan Dass (PW2) and some other constables, was going on patrol duty, along the road towards Chak Kharak Singh Wala from the side of Basti Nizamdin. When they reached near the well known as Bulaki Wala in the area of Chak Kharak Singh Wala, the petitioner was seen coming with a gunny bag on his head. On seeing the police party, he tried to retreat. He was apprehended. On search of the gunny bag, rubbertube, Ex. P. 2 was recovered which was found to contain illicit liquor. 180 ml. of illicit liquor was separated from the contents of the tubes as a sample and sealed. The remaining contents of the tube were transferred into 24 bottles Ex. P. 3 to P. 26. Those bottles were separately sealed. Head Constable Natha Singh sent ruka Ex. PB to Police Station Sadar, Ferozepure, for registration of a case and on its basis Formal First Information Report Ex. PB/1 was recorded. Sample was sent to the Chemical Examiner who, vide his report Ex. PD, opined the contents to be of illicit liquor. After necessary investigation, the petitioner was charge sheeted.

At the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure. He denied the prosecution allegations. He examined Waryam Singh in his defence. This witness has stated that the Police had come to the village and had searched the house of the petitioner, but nothing incriminating was recovered.

The learned Additional Chief Judicial Magistrate who tried the case, believed the prosecution evidence and convicted the petitioner under section 61(1)(a) of the Punjab Excise Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/. Rigorous imprisonment in default of payment of fine was also awarded. The petitioner filed appeal which was heard by the learned Additional Sessions Judge, Ferozepure who did not find any merit in the same and dismissed it. The petitioner has now filed this revision.

The learned counsel for the petitioner argued that in the present case, no independent witness was joined at the time of the alleged recovery from his client. The prosecution version it that the Police party was on patrol duty when the petitioner was apprehended. In these circumstances, it could not be expected that the patrol party should have joined an independent witness before the search of the petitioner was conducted.

It was next argued by the learned counsel for the petitioner that the tube which was produced in Court could not be connected with the case. Of course it has come in evidence that no slip was found affixed to the tube which might connect it with the present case, but there is evidence to the effect that the bottles which were produced in the Court, bore the slip which connected the same with this case. The slip on the rubber tube might have been torn with the passage of time and on account of its rough handling. As bottles Ex. P.3 to P. 26 have been connected with the case, the prosecution version cannot be doubted.

The learned counsel for the petitioner further argued that both the Courts below have disbelieved the statement of DW1 Waryam Singh. At this stage, his evidence cannot be reappraised. In this respect, a reference can be made to State of Orissa v. Sahu and others, AIR 1979 SC 663 wherein it was remarked :

"So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Sec. 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defeat in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant error on a point of law which was consequently resulted in flare grant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose, 1973(4) SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram, 1973(2) SCC 583; (AIR 1973 SC 2145). In the latter case, viz. Akalu Ahir v. Ramdeo Ram (Supra) this Court following its earlier decision in Amar Chand Aggarwalla v. Shanti Bose (supra) held that in spite of the wide language of S. 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy as to the correctness, legality or propriety of any findings sentence or order recorded or passed by any inferior court situated within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a court of appeal under S. 423 as if it is hearing an appeal."

The above observations of their Lordships of the Supreme Court clearly lay down the powers of the revisional Court.

Lastly, the learned counsel for the petitioner argued that the petitioner be granted the benefit of the provisions of the section 360 of the Code of Criminal Procedure, 1973. The petitioner was found in possession of 24 bottles of illicit liquor. It is an economic as well as a social offence. Moreover, the lower appellate Court has remarked that previously too he has convicted in 5 cases under the Excise Act. He appears to be beyond reformation. Therefore, I do not think it a fit case to release him on probation.

For the foregoing reasons, I do not find any merit in the present petition and dismiss the same.