Crl. Revision No. 739 of 2006 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 739 of 2006 (O&M) Date of Decision: March 31, 2011 Vikram ---Petitioner versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Rakesh Nehra, Advocate, for the petitioner Mr.J.S.Rattu, Deputy Advocate General, Haryana *** GURDEV SINGH, J. The petitioner-accused, Vikram, was convicted for the offence under Section 61(1)(a) of the Punjab Excise Act, 1914 (hereinafter referred to as “the Act”) by the Chief Judicial Magistrate, Rohtak, vide his judgment dated 14.7.2005 and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2000/- and in default of payment of that fine to undergo simple imprisonment for a period of two months. The accused preferred an appeal against that conviction and sentence but the same was dismissed by Additional Sessions Judge, Rohtak, vide judgment dated Crl. Revision No. 739 of 2006 -2- 8.3.2006. Now, he has preferred the present revision against that conviction and sentence. The facts, in brief, are that on 21.9.1997, Vejinder Singh ASI, PW- 5, along with Ashok Kumar HC, PW-3, Brahm Singh ASI, PW-2 and Raj Kumar, Constable, was present in Mata Darwaja Chowk in connection with patrolling and detection of crime, where he received a secret information that the accused was selling liquor by sitting on a charpai in the court yard in front of his hut and had kept a number of pouches containing the liquor under that charpai after digging a pit and in case a raid was conducted, he could be apprehended with that liquor. A raid was conducted at the hut of the accused, who on seeing the head light of the vehicle managed to escape. When the earth was dug under the charpai , six bags were recovered and each of that bag was found to contain 200 pouches and each of that pouch contained 200 ml. of country made liquor make 'Angoori'. One pouch each was taken out of each of the bag as sample and was sealed by the ASI with his seal “VS”. The remaining pouches in those very bags were also sealed with the same seal. The case property was taken into possession, vide Memo Ex. PB. The ASI sent his ruqa, Ex. PW5/B, to the police station and on the basis thereof, formal FIR, Ex. PW5/C, was recorded. He prepared the rough site plan, Ex. PW5/A, of the place of recovery and on coming back to the police station, deposited the case property with the MHC. Out of this case property, samples were sent to the Chemical Examiner on 15.10.1997 and were delivered at that place with seals intact. After analysis, it was reported by the Chemical Examiner, vide his report, Ex. PX/1, that those contained liquor. After the completion of the investigation, the challan was put in before the Additional Chief Judicial Magistrate, who found sufficient grounds for presuming that the accused committed offence punishable under Section 61(1)(a) of the Act. He was Crl. Revision No. 739 of 2006 -3- charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Shri Krishan, HC, PW-1, Brahm Singh ASI, PW-2, Ashok Kumar HC, PW-3, Satbir Singh ASI, PW-4 and Vejinder Singh SI, PW-5. After the close of the prosecution evidence, the accused was examined 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. He stated that no such offence was committed by him. He was called upon to enter on his defence, but he did not produce any evidence in defence. I have heard learned counsel for both the sides. It has been submitted by counsel for the accused that though the police party was having a secret information against the accused, still no independent witness was associated before conducting the raid at the hut of the accused. In the absence of any independent corroboration, the conviction could not have been recorded on the basis of statements of the police officials. The accused cannot be said to be in conscious possession of the alleged bags, containing the pouches of liquor, as he was never apprehended at the spot and those bags were lying concealed under ground. Only one pouch, out of each of those bags, was sent to the Chemical Examiner and, therefore, it cannot be said that the other pouches also contained country made liquor. He further submitted that the prosecution has failed to produce link evidence for proving that it were the samples which were taken into possession at the spot, which were sent to the Chemical Examiner and were found to contain liquor. Those samples were delivered in that office by one Shri Krishan, Constable No. 290, whereas, Shri Krishan, so examined in the Court, was Constable No. 836. Therefore, it cannot be said that those samples were of this very case. In view Crl. Revision No. 739 of 2006 -4- of these submissions, he prayed for the acquittal of the accused. On the other hand, the State counsel tried to controvert these submissions of the counsel for the accused by contending that the conviction of the accused can be based on the statements of the official witnesses and there is no requirement of law that those must be corroborated by some independent witness. The bags containing the pouches of liquor were recovered from beneath the charpai, where the accused was sitting and as such he can be said to be in conscious possession thereof. There is no such defect in the link evidence produced by the prosecution for proving that the samples which were taken from those bags at the spot, were sent to the Chemical Examiner and were found to contain liquor. The raid was conducted at the hut of the accused only after secret information was received and there was an opportunity with the Investigating Officer to join some witness from the public before conducting the raid but he failed to do so. However, this omission on his part cannot be made a ground for disbelieving the statements of the official witnesses, who deserve the same respect like other witnesses. . If on closure scrutiny, the statements of the officials witnesses are found to be worthy of credence, conviction of the accused can certainly be based on the same. Prosecution examined three recovery witnesses, Brahm, Singh, ASI, PW-2, Ashok Kumar HC, PW-3 and Vejinder Singh, SI, PW-5. Their statements were not assailed by the counsel for the accused during the course of arguments. They made consistent statements inter se and the trial court and the appellate court did not commit any illegality while placing reliance on their statements. According to these recovery witnesses, the bags, containing the pouches of liquor, were lying buried under the ground. It is very much apparent from the rough site place, Ex. PW5/A, that this recovery was effected Crl. Revision No. 739 of 2006 -5- from open space and it can be said to be accessible to each and every one. These bags were recovered only after digging the earth and were not visible from out side. In the facts of the present case, it cannot be said that the accused was in conscious possession thereof as he was never apprehended at the spot and no evidence was collected by the Investigating Agency nor any such evidence was produced in the Court that the accused was the owner of the open space from where that recovery was effected. Even if, for arguments sake, it is assumed that the accused was in conscious possession of those bags, even then, he could not have been convicted for the offence under Section 61(1)(a) of the Act, as the prosecution failed to produce link evidence for proving that the sample pouches, which were taken from those bags at the spot, were sent to the Chemical Examiner and were found to contain illicit liquor. No doubt, the prosecution proved on record the report of the Chemical Examiner, Ex. PX/1, wherein it is mentioned that six such samples were received and those were found to contain liquor. As per that report, those samples were delivered in the office of the Chemical Examiner by one Shri Krishan, Constable No. 290. That Constable was not examined by the prosecution and it was Shri Krishan, Constable No. 836, who was examined as PW-1, and he proved on record his affidavit, Ex. PA. Even that affidavit is defective and cannot constitute legal evidence. Paras No. 1 to 3 of that affidavit were never testified by the deponent to be correct as per his belief or as per his knowledge. Those were testified to be correct as per the record. The facts stated in those paras cannot be said to have been testified on the basis of the record as those were supposed to be in the personal knowledge of the deponent. As per the contents of this affidavit, the case property was deposited on 21.9.1997 with the deponent by Vejinder Singh , ASI. When that ASI was examined as PW-5, he never stated that he had deposited this case Crl. Revision No. 739 of 2006 -6- property with that deponent. Therefore, the samples, which were found to contain illicit liquor, cannot be linked with the samples which are alleged to have taken at the spot. In these circumstances, the accused could not have been convicted for the aforesaid offence. In the result, this revision is hereby accepted. Conviction and sentence of the accused is set aside. Fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE March 31, 2011 PARAMJIT