Crl. Revision No. 1987 of 2005 {1} In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1987 of 2005(O&M) Date of Decision: February 17, 2011 Gurnam Singh ---Petitioner versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Abinashi Singh, Advocate, for the petitioner Mr. P.S.Paul, Deputy Advocate General, Punjab *** GURDEV SINGH, J. The petitioner-accused, Gurnam Singh, was convicted for the offence under Section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as 'the Act”) by the Additional Chief Judicial Magistrate, Patiala, vide judgment dated 2.9.2004 and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months. That conviction and sentence was upheld by Additional Sessions Judge, Patiala, in the appeal, which was preferred by the accused and was decided vide judgment dated 17.9.2005. Briefly stated, the prosecution case is that on 22.9.1999, Pritpal Crl. Revision No. 1987 of 2005 {2} Singh SI, PW-4, along with Baljit Singh HC, PW-3, and other police officials was present near the Primary School, Charasaon, where he received secret information that the accused was in the habit of distilling illicit liquor with the help of working still and in case a raid was conducted at his house, such a working still, along with illicit liquor can be recovered from his possession. On the receipt of that information, the SI sent his ruqa, Ex. PF, to the Police Station, on the basis of which formal FIR, Ex. PF/1 was recorded. Thereafter, this police party conducted a raid at the house of the accused and he was found distilling illicit liquor with the help of the working still. The working still consisted of one hearth, on which a drum had been placed, which was being used as boiler. One tasla of iron had been affixed with that drum with the help of clay, which contained water and was being used as cooler. One rubber pipe had been affixed in that cooler and the other end of which had been placed in a plastic container wherein the illicit liquor was being collected drop by drop. After dismentalling the working still, it was cooled. The plastic container was found to contain five bottles of illicit liquor, out which one nip of liquor was taken as sample and the remaining liquor was re-transferred into the same container. The drum was found to contain about 30 liters of lahan. Nip, container and the drum were sealed by the SI with his seal “PS”, which after the preparation of the specimen seal, was handed over to Baljit Singh HC and these articles were taken into possession, vide Memo Ex. PC. The SI prepared the rough site plan of the place of recovery. Ex. PG, with correct marginal notes and on coming back to the police station, deposited the case property with Kuldip Singh, MHC, PW-2. On 24.9.1999. Mohinder Singh, Excise Inspector, PW-5 came to the police station and the above said sealed drum was produced before him by the MHC. He tested the contents thereof and found the same to be the mixture of water, gur and kikkar bark, the taste of which was bitter and Crl. Revision No. 1987 of 2005 {3} smell of alcohol was coming therefrom. He found that the same was fully fermented lahan from which some illicit liquor had already been distilled. After that test, he sealed the drum with his own seal “MS” and handed over the same to the MHC and submitted his report Ex. PW5/A. The nip sample was sent to the Chemical Examiner on 2.11.1999 through Kulwant Singh, PW-1 and was delivered at that place with the seal intact. After analysis it was reported by the Chemical Examiner, vide his report Ex. PD, that the same contained illicit liquor. After completion of the investigation, the challan was put in before Additional Chief Judicial Magistrate, Patiala, for the trial of the accused, who charged him for the offence under Section 61(1)(c) of the Act, to which he pleaded not guilty and claimed trial. For proving the guilt of the accused, prosecution examined Kulwant Singh, PW-1, Kuldeep Singh MHC,PW-2, Baljit Singh, PW-3, Pritpal Singh SI, PW-4 and Mohinder Singh, Excise Inspector,PW-5 and tendered in evidence the report of the Chemical Examiner, Ex. PX. After the close of the prosecution evidence, the accused was examined by the trial court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. I have heard counsel for both the sides. It has been submitted by counsel for the accused that the conviction of the accused could not have been recorded on the basis of the statements of the police officials in the absence of any corroboration by independent witnesses. No independent witness was joined before conducting the raid, though the police party had the prior information. In these Crl. Revision No. 1987 of 2005 {4} circumstances, the non-joining of the independent witnesses is fatal to the prosecution. He supported that argument by judgment of this Court reported in 1998(4) RCR (Criminal) (Darshan Singh vs. State of Punjab). He further submitted that the drum which was produced in the court, did not contain any lahan and there was no identification mark on the same. Therefore, it cannot be said that it was the same drum, which is alleged to have been recovered from the possession of the accused and the statements of the police officials that the said drum contained lahan, stands contradicted and become unreliable. He also submitted that the sample which was taken at the spot was sent to the Chemical Examiner after 40 days, for which an adverse inference is to be drawn against the prosecution and the same creates a doubt in its version. Therefore, conviction of the accused cannot be sustained. In the last, he submitted that the accused is an old man of 62 years and had been standing his trial from the last 11 years and as such he be granted the benefit of probation. On the other hand, it has been submitted by the State counsel that efforts were made to join the independent witnesses after secret information was received against the accused, but no one opted to join. Therefore, the non- joining of such an independent witness cannot be made a ground for acquitting the accused. The case property was produced in the court and it was specifically deposed by the Investigating Officer that those were the components of the working still, so recovered from the possession of the accused. It was not possible to preserve the identification mark and the lahan in the drum for such a long period and the lahan was bound to evaporate by the passage of time. The guilt of the accused stands proved from the statements of the recovery witnesses. There may be some delay in sending the sample to the Chemical Examiner, but that delay has no effect on the merits of the case. The contents of that sample were never tampered with as is evident from the Crl. Revision No. 1987 of 2005 {5} evidence produced during the investigation. She also opposed the prayer of the counsel for the accused for releasing him on probation on the ground that for such like an offence such a benefit cannot be granted. It is an admitted fact that the prosecution relied only on the statements of the police officials for proving the guilt of the accused. There was prior information with the Investigating Officer and he had an opportunity with him to join independent witnesses before conducting the raid. It was made clear by him during his cross examination that one Buta Singh was called to join the investigation but he refused to do so. His statement, that the efforts were made to join the independent witnesses, stands corroborated by the statement of Baljit Singh HC, PW-3 and there is nothing on the record to disbelieve their testimony. It is a case where efforts were made to join the independent witnesses but on account of the refusal of those witnesses, they could not be joined in the investigation. The public apathy in joining the police investigations makes it impossible for the Investigating Officer to join independent witnesses in each and every case. It is a matter of common knowledge that even if such independent witnesses join the investigation they seldom come forward to support the prosecution case in the court. In Darshan Singh's case (supra), the conviction of the accused recorded by the trial court was not set aside merely on the ground that there was no independent corroboration to the statements of the police officials but the same was recorded in view of the fact that the police officials had made discrepant statements and it was held that in view of those discrepancies, it was not safe to convict the accused on the sole testimony of the police officials in the absence of any corroboration by some independent evidence. How much value can be attached to the statements of the police officials, was laid down by the Hon'ble Supreme Court in Tahir vs. State(Delhi) 1996(3) C.C.Cases 23 Crl. Revision No. 1987 of 2005 {6} (SC). It was held therein that no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The rule of prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. Therefore, the only duty caste upon the court was to scrutinize the statements of the police officials with more care and caution before recording the conviction of the accused on the basis thereof. Pritpal Singh SI, PW-4 and Baljit Singh HC, PW-3 made consistent statements before the trial court and during their cross examination, no discrepancy crept in, so as to make them unworthy of believe. Their trustworthy statements were sufficient to record the conviction of the accused even in the absence of any independent evidence. The findings recorded by the trial court, which were up held by the appellate court, does no suffer from any perversity or illegality. It was admitted by Pritpal Singh SI, PW-4 during his cross examination that there was no identification slip on the drum, which was produced in the Court and there was no lahan at that time. It is pertinent to note that this very drum was produced before Mohinder Singh, Excise Inspector, PW-5, after two days of the recovery and at that time the seal was found intact and it contained 30 liters of lahan. Statement of Pritpal Singh SI, Crl. Revision No. 1987 of 2005 {7} PW-4, was recorded on 18.11.2003 i.e. after four years of the recovery. It was not possible, keeping in view the conditions prevailing in the Malkhanas of the police stations in the State of Punjab, to preserve the identification of the drum. By the passage of time, the lahan was bound to spill or evaporate. The merits of the prosecution case are not being effected merely on the ground that after four years no identity slip was found on that drum and no such lahan was found therein. This fact was not disputed by the State counsel that nip sample was sent to Chemical Examiner on 2.11.1999. The rule of prudence requires that it should have been sent at some early date so as to rule out the possibility of tampering with the contents thereof. However, in the present case, from the evidence produced by the prosecution, it firmly stands proved that till the nip sample reached the Chemical Examiner, the contents thereof were not tampered with. It was stated by Pritpal Singh, PW-4 that he had deposited the case property with the MHC on the date of recovery itself and his statement to that effect was corroborated by the statement of Kuldeep Singh MHC, PW-2, as contained in his affidavit Ex. PB. According to that MHC, the sample was sent to the Chemical Examiner on 2.11.1999 through Kulwant Singh, constable, who was examined as PW-1, and proved on record his affidavit, Ex. PA. As per the deposition contained in that affidavit, nip was delivered by him in the office of the the Chemical Examiner without tempering with the contents thereof. The non-tampering of the contents of the sample is further fortified by the report of the Chemical Examiner, Ex. PX, wherein it is incorporated that at the time of the receipt of the nip, the seals thereof were intact and those agreed with the specimen seal sent therewith. In these circumstances, this delay in sending the sample to the Chemical Examiner has least effect on the merit of the case of the prosecution. From the other evidence produced by the Crl. Revision No. 1987 of 2005 {8} prosecution it stands proved beyond any reasonable doubt that the accused was found distilling the illicit liquor with the help of the working still. There is no ground for setting aside the conviction of the accused while exercising the revisional jurisdiction, keeping in view the well reasoned finding of conviction recorded by the trial court and upheld by the appellate court. The accused may have become an old man of 62 years but that itself cannot be a ground for giving the benefit of probation to him. He was found distilling the illicit liquor with the help of working still and for that offence minimum sentence has been prescribed. There have been so many cases in which the persons had died or lost their eye sight by consuming such like illicit liqour which is being prepared under most unhygienic conditions. Such like persons, who want to make easy money at the cost of health of others, are not entitled to any such indulgence of the court. I do not find it just and expedient to release the petitioner on probation. In the result, this revision petition is dismissed. The accused be taken into custody for undergoing the sentence of imprisonment so imposed upon him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE February 17, 2011 PARAMJIT