Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH 1) Crl. Appeal No. 423-SB of 1999 Date of decision. 28.02.2011 Satpal Singh @ Satya Parkash s/o Dalip Singh, r/o village Gopalwas. ....... Appellant Versus The State of Haryana ........ Respondent 2) Crl. Appeal No. 424-SB of 1999 Date of decision. 28.02.2011 Rajinder s/o Mange Ram, r/o village Gopalwas,P.S. Barda District Mohindergarh. ....... Appellant Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Sourabh Mohunta, Advocate for the appellants in both the appeals. Mr. Dharuv Dayal, Deputy Advocate General,Haryana for the respondent-State in both the appeals. **** Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --2-- M. Jeyapaul, J.(Oral) The 4th accused Satpal Singh who was the only accused convicted under Section 61(1)(a) of the Punjab Excise Act, 1914 (hereinafter called 'the Act') has preferred Criminal Appeal No. 423- SB of 1999. The 3rd accused Rajinder in the said case though acquitted of all the charges framed against him, has preferred Criminal Appeal No.424-SB of 1999 challenging the order of confiscation of jeep bearing registration no. HYG-4314 to the State passed by the trial Court. 2. It is the case of the prosecution that on 22.03.1997 the police party headed by PW-11 Sub Inspector Krishan Chand having received furtive information waited for the arrival of the vehicle loaded with liquor bottles having parked their jeep near village Nawa. At about 3.30 AM they found that a jeep bearing registration No. HYG-4314 followed by a tractor was coming. On seeing the police party, the jeep took a turn and sped away. A chase was given by the police party headed by PW-11. The 4th accused Satpal Singh, who is the appellant herein, fell down from the jeep after a gun shot fire was given towards the jeep by the police party. The 2nd accused Ranbir, who was the driver of the tractor, was also apprehended. The 4th accused/ appellant herein alongwith the 3rd accused Rajinder was taken to PW-1 Dr. Gajraj Singh, Medical Officer for medical examination. Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --3-- 3. PW-1 Dr. Gajraj Singh, Medical Officer examined the appellant on 22.3.1997 and found that he had sustained five lacerated injuries and one abrasion. He had opined that all the injuries were caused by a blunt weapon. No fracture of any sort was found as per the opinion of PW-2 Dr. R.A. Gupta, SMO. 4. PW-11 Krishan Chand, Sub Inspector thereafter came down to the police station where the jeep was brought. He took sample from one liquor bottle in one of the cartons. The same was sent for examination by an Expert of Forensic Science Laboratory. The report would show that the bottle contained Indian Made Foreign liquor. PW-11 Krishan Chand, Sub Inspector having completed the investigation filed final report against the accused. 5. The trial Court having disbelieved the evidence of the witnesses examined on the side of the prosecution as regards the role of A-1 to A-3, recorded their acquittal of all the charges. But having been convinced with the recovery of liquor bottles, which contained Indian Made Foreign liquor in the jeep travelled by the appellant herein convicted him for the offence punishable under Section 61(1)(a) of the Act. The jeep bearing registration No. HYG-4314 was also ordered to be confiscated to the State. Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --4-- 6. The learned Counsel appearing for the appellant would submit that it is an admitted case of the prosecution that about 22,000 bottles of liquor were already lying in the police station. Therefore concoction of the case with the aid of the bottles already lying in the police station cannot be ruled out. It is his further submission that no independent witness was associated for the purpose of recovery of material objects. It is his further submission that the Investigating Officer should have lifted samples from all the bottles allegedly recovered from the jeep travelled by the appellant herein. There is a material lacuna on the part of the investigating agency in not drawing samples from all the bottles. The evidence of PW-1 Dr. Gajraj Singh, Medical Officer would go to show that the appellant herein received injuries with blunt weapon. Therefore the defence version projected through the statement under Section 313 of the Code of Criminal Procedure that the appellant sustained injuries on account of the attack launched by the police party will have to be accepted by the Court of law. It is his further submission that the appellant in Criminal Appeal No.424- SB of 1999, who has been relieved of all the charges by the trial Court is entitled to retain the jeep alleged to have been used for the purpose of transporting of liquor bottles. Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --5-- 7. The learned Deputy Advocate General, appearing for the respondent-State would submit that no independent witness could be associated as no one was willing to cooperate in the matter of recovery of liquor bottles at the police station. It is his further submission that just because 22,000 bottles of liquor were lying in the police station, it cannot be attributed that a false case was foisted the accused by the police officials who had no grudge against him. Even assuming for the sake of arguments that only one bottle was found in possession of the accused/appellant herein and the said bottle contained Indian Made Foreign liquor he is liable to be convicted for the offence under Section 61(1)(a) of the Act. It is his submission that the lapse on the part of the investigating agency would not go to rescue the accused as he was caught red handed and in fact he sustained injuries at the time when the chase was given. Therefore he would submit that the trial Court has rightly taken a decision to convict the accused/appellant herein for the aforesaid offence. As far the confiscation of the jeep to the State, it is his submission that the trial Court has confiscated the jeep to the State which transported the contraband only in terms of Section 78 of the Act. Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --6-- 8. PW-11 Krishan Chand, Sub Inspector accompanied by PW-10 Kamal Singh, Head Constable and other police officials had given a chase to the jeep which transported Indian Made Foreign liquor. The 4th accused/appellant herein had sustained injuries when he fell down from the jeep which carried the liquor bottles immediately after a fire shot was given by the police party towards the jeep. The Police Party cannot expect an independent witness to such an occurrence at about 4.30 AM on the road. Further the police officials were concerned with the treatment to be given to the appellant who sustained injuries on account of the fall from the jeep. 9. Of course PW-1 Dr. Gajraj Singh, Medical Officer has deposed before the trial Court that the appellant herein has received five lacerated injuries and one abrasion and that those injuries were caused by a blunt weapon. 10. Firstly the evidence of the doctor is only opinion evidence. But quite unfortunately he has very assertively deposed before the Court that the injuries were caused by blunt weapon. The above opinion expressed by him may reflect the possibility of such injuries being caused with a blunt weapon. But it is a common knowledge that such lacerated injuries and abrasion found on the person of the appellant herein could have been caused if a person violently fell down and came into Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --7-- contact with a rough surface or blunt object. There is no record to show that the appellant informed the learned Illaqa Magistrate at the time of remand that he sustained injuries at the hands of the police. Therefore the very fact that the appellant was caught red handed alongwith the jeep which transported liquor bottles goes to show that he was involved in the transportation of the contraband. 11. It is true that the police officials had not associated any independent witness at the time of recovery of 24 cartons which contained liquor bottles. It was allegedly recovered at 10.30 AM on the day of occurrence at the police station. The lame excuse given by PW-11 was that no independent witness was willing to associate himself for the purpose of recovery. PW-11 Krishan Chand, Sub Inspector in all fairness should have associated some respectable persons in the locality for the purpose of recovering the material objects in this case. But just because an independent witness was not associated, the case of the prosecution cannot be thrown overboard when other materials available on record would clinchingly establish the involvement of the appellant herein in the transportation of illicit liquor bottles. 12. Of course the learned Counsel appearing for the appellant cited a decision of this Court in Shishpal and Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --8-- another v. State of Haryana 2011(1) RCR (Criminal) 267 wherein it has been observed that non-examination of independent witness could not be a valid ground to acquit the accused but prudence required corroboration of the official witness from independent source. That was a case where the entire case of the prosecution was writ large with doubt. The non-association of the independent witness was also taken into consideration by the Court. But here in this case, the other materials would go to establish that the appellant herein was caught red handed while transporting liquor bottles in a jeep. Therefore, mere non-association of independent witness during the course of recovery of contraband from the jeep which was intercepted by the police and brought to the police station would not belie the case of the prosecution. 13. The police officials out of inexperience has lifted sample from one liquor bottle in one of the cartons recovered from the jeep. He had not drawn sample from each of the cartons. Of course this is a real lapse on the part of the investigating agency. PW10 and PW-11 would speak to the recovery of the 24 cartons of liquor bottles. The sample drawn from the cartons contained Indian Made Foreign liquor as per the expert's report. It is not necessary that the sample should be drawn from each and every bottle. If the sample is Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --9-- lifted from one of the bottles in a carton, that would be sufficient to test the nature of content in the entire carton. The Court will have to presume that the entire carton contained Indian Made Foreign liquor. 14. It is true that PW-11 Krishan Chand, Sub Inspector would admit very fairly that there were more than 20,000 bottles of liquor already lying in the police station at the time when the recovery was made in this Case. The very fact that the appellant herein was caught red handed with injuries sustained by him on account of a fall from the jeep immediately after a gun shot was given at the jeep would go to show that no false case was foisted on the appellant. There was no grudge or ill-will established against the police officials for booking such a false case against the appellant. Therefore the Court cannot presume that the bottles already lying in the police premises were used for the purpose of booking a case against the appellant. 15. It is found that the trial Court has properly appreciated the testimony of PW-10 Kamal Singh, Head Constable and PW-11 Krishan Chand, Sub Inspector in the background of the medical evidence against the accused to come to a decision that the appellant herein committed the offence punishable under Section 61(1)(a) of the Act. I do not Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --10-- find any reason to interfere with the well considered decision passed by the trial Court. 16. Now coming to the order of confiscation of the jeep passed by the trial Court, it is found that the trial Court has passed the order of confiscation of the jeep bearing registration No. HYG-4314 owned by the appellant in Criminal Appeal No. 424-SB of 1999 in terms of Section 78 of the Act. As per the aforesaid provision of law whenever the Court finds that the offence punishable under the said Act was committed not only the liquor bottles which fall under the definition of intoxicant, but also the vehicle used for the purpose of transportation are liable to be confiscated. Therefore, I do not find any flaw in the order passed by the trial Court confiscating the jeep bearing registration No. HYG-4314 to the State. 17. Coming to the quantum of sentence, relying upon the decision of this Court in Harpal Singh @ Kala v. State of Punjab 2010(1) RCR (Criminal) 866 , I deem it proper to reduce the sentence of two years rigorous imprisonment imposed on the appellant to the sentence already undergone by him. 18. In the result, confirming the conviction recorded against the appellant in Criminal Appeal No. 423-SB Criminal Appeal No. 423-SB of 1999 & Criminal Appeal No. 424-SB of 1999 --11-- of 1999 for the offence punishable under Section 61(1)(a) of the Act, the sentence of imprisonment awarded to him is reduced to the sentence already undergone by him. The fine imposed on him by the trial court is maintained. The order of confiscation of jeep bearing registration No. HYG-4314 passed by the trial Court is sustained. 19. With the above modification in the sentence, both the appeals stand dismissed. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and compliance report be sent forthwith. 28.02.2011 ( M. Jeyapaul ) dinesh Judge Whether to be referred to the Reporters or not? ( Yes/No )