Thakur Singh vs State of Punjab

P.K.Jain, J.

This revision is directed against the judgment dated September 28, 1995, passed by the Additional Sessions Judge, Ferozepur, whereby the conviction and sentence of the petitioner recorded by the Judicial Magistrate, Ferozepur, by his judgment dated 10.2.1994, for an offence under section 61(1)(c) of the Punjab Excise Act has been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/ or in default of payment of fine to undergo further rigorous imprisonment for two months.

The case of the prosecution is that on 21.6.1987, a police party headed by H.C. Shiv Dyal Singh was going from village Alike towards village Dulchike, when smoke was seen emitting out of the wild growth. The police party reached the spot and found the petitioner distilling illicit liquor by means of a working still. At the crucial moment, the petitioner was feeding fire under the hearth. The working still was made to cool down and dismantled. The drum boiler was found to contain 80 Kgs. of lahan decides two others drums, each containing 150 Kgs. of lahan lying nearby. Distilled liquor was being collected in a tinreceiver, out of which a sample of 100 mls. was drawn out and the remaining liquor was transferred in two bottles. The sample, the bottles, the drum boiler and other two drums were sealed. According to the report of the Chemical Examiner the sample was opined to be illicit liquor. After completing the investigation, a chargesheet was filed against the petitioner.

The petitioner denied the charge framed against him under section 61(1)(c) of the Punjab Excise Act and claimed trial.

In support of its case the prosecution examined five witnesses. Shri Kabal Ram E.I.(PW 1) had opined that the contents of the boiler drum and the other drums were fit for distillation vide his report Exhibit PA. MHC Om Parkash (PW2) and Constable Makhan Singh (PW4) tendered their affidavits Exhibits PW 2/A, and PW4/A being formal witnesses. Karam Singh (PW3) and H.C. Shiv Dyal (PW5) are the main prosecution witnesses regarding the recovery of the working still along with the lahan and the illicit liquor. In his statement recorded under section 313 of the Cr.P.C., the petitioner denied the allegations of the prosecution and pleaded false implication.

On an appraisal of the evidence, the trial Magistrate came to the conclusion that the prosecution had proved its case against the petitioner beyond reasonable doubt and as such convicted and sentenced him as stated above. His appeal against the conviction and sentence did not find favour with the Additional Sessions Judge. Hence this revision.

I have heard the learned counsel for the parties and gone through the record.

Shri M.S. Sidhu, Advocate, learned counsel for the petitioner, made a faint attempt to challenge the conviction of the petitioner on the ground that no independent witness was joined while conducting raid and the conviction of the petitioner could not be sustained merely on the testimony of the two police officials. This plea has been considered at length by both the Courts below who have given the concurrent finding that the testimony of both the police officials H.C. Shiv Dyal and Constable Karam Singh is credible, unimpeachable and no malice or hostility on their part towards the petitioner had been shown.

Although the jurisdiction of the High Court to interfere in respect of the correctness of the findings of fact, even when the findings are concurrent is unquestionable, it will not, as a rule go into the evidence save in exceptional cases or where the judgment on the facts is manifestly wrong and grossly and palpably unjustified. The High Court would go into a question of facts in its revisional jurisdiction only when the lower Court has totally misconceived the evidence and come to an obviously wrong conclusion. In the present case, the learned counsel for the petitioner has not been able to point out that the impugned judgment is either manifestly wrong or grossly unjustified.

It has been pointed out from time to time that the testimony of the official witnesses has not to be rejected as a matter of rule merely on the ground of their official status and if it is found that the police officials had no hostility towards the culprit, the Court may be perfectly justified in accepting their testimony. The presumption that a person acts honestly applies as much in favour of a police officer as all other persons. In the case in hand there was no prior information with the police party and it was merely a case of chance recovery when the smoke was seen emitting from the wild growth. In these circumstances, both the Courts below were justified in placing implicit reliance upon the testimony of H.C. Shiv Dyal and Constable Karam Singh. Therefore, this contention of the learned counsel for the petitioner has no merit in it.

10 It has been further argued by the learned counsel for the petitioner that according to the testimony of the Investigating Officer, the working still cannot be operated from the case property produced in the Court and as such the same is fatal to the prosecution case. This contention is without any merit. The obvious reason is that the production of the case property later in Court is only a corroborative piece of evidence. If the direct evidence is credible and unimpeachable and in the view of the Court is sufficient to establish the charge and a consequent conviction, it cannot be said that the whole of it would lose its value by the mere nonproduction of the case property, which is merely corroborative. The trial of offences and their punishment is a matter of substance which turns on the weight and the credibility of the direct evidence and not merely on the technicalities of the procedures. This view finds affirmation in a Division Bench Judgment of this Court rendered in Balraj Singh v. The State of Punjab, 1982 Crl.L.J. 1374.

In the present case all the available components of the working still were produced in the Court besides the liquor and the lahan recovered from the spot of occurrence. There is a direct testimony of Excise Inspector Sh. Kabal Ram that the contents of the boiler drum and the other drums were fit for distillation. There is also positive evidence on the record that the distilled liquor was found to be illicit as per report of the Chemical Examiner. There is direct testimony of Karam Singh (PW3) and H.C. Shiv Dyal (PW5) that at the crucial moment the petitioner was feeding fire under the hearth and was distilling illicit liquor by means of a working still. In the face for this testimony, this contention of the learned counsel for the petitioner is not sustainable.

As a last limb of his argument, the learned counsel has urged that the petitioner may be released on probation. It has been contended that the petitioner has been facing prosecution since 21.6.1987; his appeal against conviction was dismissed on 28.9.1995 and since then he is undergoing sentence. It has also been pointed out by the learned counsel that there is no past criminal history against the petitioner.

On the hand other the learned State counsel has argued that an offence under section 61(1)(c) of the Punjab Excise Act is punishable with a minimum sentence of one year''s rigorous imprisonment and as such the petitioner cannot be released on probation.

The question directly arose before a Full Bench of this Court in Joginder Singh v. The State of Punjab, 1980 C.L.R. (Pb.& Har.) 196. After a review of the Probation of Offenders Act as well as Sections 360 amd 361 of the Cr.P.C., it was specifically held that a convict for an offence under section 61(1)(c) of the Punjab Excise Act can be deatt with and released on probation even though a minimum sentence of one year''s rigorous imprisonment is prescribed. In Bakhtawar Singh v. The State of Punjab, 1987(2) Recent Criminal Reports 496 : 1988 C.C. Cases 509 (HC) , the petitioner was ordered to be released on probation of good conduct for an offence under section 16(1)(c) of the Punjab Excise Act. A similar view has been expressed in Sadhu Singh & another v. The State of Punjab, 1988(1) Recent Criminal Reports 703 : 1989 (1) C.L.R. 150 .

In the present case the petitioner has already undergone the agony of a long protracted trial for a period of about 8 years. He has also undergone a considerable period of sentence imposed upon him for the offence in question. He is not a previous convict nor has any past criminal history. Keeping in view the said circumstances, it would be just and proper if the petitioner is released on probation.

As a result of the above discussion, the revision is allowed in part. The conviction of the petitioner under section 61(1)(c) of the Act is hereby affirmed. However the sentence of imprisonment imposed upon the petitioner is set aside and he is ordered to be released on probation on his entering into a bond in the sum of Rs. 5000/ with one surety in the like amount for a period of two years to the satisfaction of the trial Court undertaking to appear and receive sentence when called upon during the said period and in the meantime to keep the peace and be of good behaviour. The amount of fine imposed upon the petitioner shall be treated as costs of proceedings.

The revision stands disposed of as indicated above.