Crl. Rev.No.2170 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.2170 of 2006 Date of Decision: 7 - 12 - 2011 Mohinder Singh and another .....Petitioners v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Ms.Amarjit Kaur Khurana, Advocate for the petitioners. Ms.Gagan Mohini, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioners on 8.1.1996 in the area of Village Chak Paliwala were found in possession of 602 bottles, measuring 750 Mls. each, of illicit liquor and, thus, the prosecution sent them for trial for offence under Section 61(1)(a) of the Punjab Excise Act (hereinafter to be referred as, `the Act'). The Court of Sub Divisional Judicial Magistrate, Jalalabad vide impugned judgment dated 15.9.2005 held the petitioners guilty of offence under Section 61(1)(a) of the Act and vide a separate order of even date sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- each. In default of payment of fine, they were to further Crl. Rev.No.2170 of 2006 [2] undergo simple imprisonment for 15 days. Aggrieved against the same, petitioners filed an appeal. The lower Appellate Court vide its judgment dated 15.9.2006, affirmed the conviction and upheld the sentence. Hence, the present revision petition. Prosecution case emerges in the testimony of PW4 SI Major Singh. He stated that he along with companion police officials, including ASI Kunda Singh, was on patrol duty in a Government Gipsy bearing registration No.PB-05A-9458 being driven by Constable Jaswant Singh. When the police party reached near Village Lakhowali towards Village Chak Paliwala, at that time, on a katcha passage one Eicher tractor was spotted. On suspicion, the tractor was stopped and during interrogation, the driver of the tractor disclosed his name Gurdip Singh son of Inder Singh and also told that in the trolly sticks of cotton plants were loaded. Two persons sitting on those sticks disclosed their names as Mohinder Singh son of Kartar Singh and Phuman Singh @ Phula son of Surjan Singh. The trolly was searched and from it 8 tubes filled with illicit liquor were recovered. The illicit liquor was measured, from which 602 bottles were filled. Gurdip Singh, the driver of the tractor was declared as a proclaimed offender. HC Jaswant Singh PW1 tendered into evidence his affidavit Ex.P1. He stated that he was posted as Moharrir Head Constable at Police Station Sadar Jalalabad on 8.1.1996 and the case property was deposited with him. Thereafter, the samples were sent by him to the Chemical Examiner. C. Kasturi Lal PW2 tendered into evidence his affidavit Ex.P2. He stated that on 10.1.1996, MHC Jaswant Singh handed over to him samples of 180/180 nips and he deposited the same with the Chemical Crl. Rev.No.2170 of 2006 [3] Examiner. PW4 SI Major Singh, Incharge CIA Staff, Ferozepur deposed regarding stopping of Eicher tractor, apprehension of the accused and the recovery. Thereafter, the prosecution closed its evidence. Statements of the accused were recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to them. In their statements the accused had taken a stand that they were labourers and were innocent travelers in the trolly. The question which this Court has to determine is as to whether the accused were in conscious possession of the illicit liquor or not. In the present case, no independent witness has been examined. Petitioners were neither owner nor driver of the tractor. In the Narcotic Drugs and Psychotropic Substances Act, 1985, presumption can be drawn against the accused under Section 54, but no such presumption is available under the Punjab Excise Act. The Investigating Agency in the present case has made no effort to find out as to who had distilled the illicit liquor and from where it was brought and to where it was being taken. Admittedly, the tractor was being driven by co-accused Gurdip Singh. The possibility cannot be ruled out that the petitioners being co-villagers had taken the lift in the trolly and were not aware that illicit liquor was being carried on in the trolly. It has come in the evidence that 8 tubes of illicit liquor were kept below the cotton sticks loaded in the trolly. It was incumbent upon the prosecution to prove that accused were in conscious possession of the illicit liquor. Even, no effort in this regard has been made by the prosecution. Hence, taking into consideration the totality of circumstances, this Court, in Crl. Rev.No.2170 of 2006 [4] an abundant caution shall grant the petitioners the benefit of doubt. Consequently, the present revision petition is accepted. The conviction and sentence awarded to the petitioners by both the Courts below is set aside. The petitioners are acquitted of the charge giving them the benefit of doubt. ( KANWALJIT SINGH AHLUWALIA ) December 7, 2011 JUDGE RC