Crl. Revision No. 724 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No. 724 of 1997. DECIDED ON : 28.7.2009. Suresh Pal and others Petitioners. VERSUS State of Haryana. Respondent. CORAM HON'BLE MR. JUSTICE JORA SINGH Present: Ms. Harmanpreet Kaur, Advocate, for the petitioners (Amicus Curie). Mr.K.S.Godara, Deputy Advocate General, Haryana, for the respondent. JORA SINGH,J. Suresh Pal, Amrik Singh and Surjit Singh have filed this revision against the judgment dated 15.7.1997 passed by Additional Sessions Judge , Karnal. Vide this judgment, appeal against the judgment and order dated 20.1.1997 passed by Additional Chief Judicial Magistrate, Karnal was rejected. Case of the prosecution, in brief, is that on the intervening night of 19th and 20th July, 1985, police party headed by Assistant Head Constable Ram Chander of Police Station, Sadar, Karnal was holding a Crl. Revision No. 724 of 1997 2 Nakabandi near the bridge of drain of canal in the area of village Kachhwa. While holding Nakabandi, one tempo bearing registration No. HYK 4197 came from the side of Karnal and was signalled to stop for checking purposes. Three persons, namely Amrik Singh, Surjit Singh and Shiv Kumar were on the tempo. Some goods were found covered with a tarpaulin and on checking of the goods, ten boxes containing 115 bottles of country made liquor were recovered. Petitioners failed to produce any licence or permit to carry liquor. One nip was separated to serve as sample from each bottle. Samples and the remaining liquor in the bottles were sealed with the seal bearing impression “RC” and were taken into police possession by preparing recovery memo. Offending vehicle was also taken into custody. Ruqa was sent to the police station on the basis of which, formal FIR under Section 61(1) (a) of the Punjab Excise Act, 1914 ( for short “the Act”) was registered against the revisionists. After completion of investigation, petitioners were challaned. Accused were charged under Section 61(1) (a) of the Punjab Excise Act to which they pleaded not guilty and claimed trial. Crl. Revision No. 724 of 1997 3 In order to substantiate its case against the revisionists, the prosecution examined Sardara Ram, PW-1; ASI Ram Chander PW2 and PW3 Mihaya Singh. Report of the Chemical Examiner Ex.PQ and affidavit of MHC Dharampal Ex.PY were tendered into evidence. After the close of prosecution evidence, the petitioners were examined under Section 313 Cr.P.C. to explain the allegations levelled against them and they denied all the allegations and claimed to be innocent. Ultimately, on merits after evidence, trial Court opined that petitioners have committed an offence punishable under Section 61(1)(a) of the Act and sentenced them to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.1500/- each. In default of payment of fine, they shall further undergo rigorous imprisonment for a period of two months each. Feeling aggrieved against the judgment dated 20.1.1997, appeal was preferred but the same was dismissed vide the impugned judgment. I have heard learned counsel for the petitioners, learned Deputy Advocate General, Haryana and have gone through the evidence on the file very carefully and thoroughly. Crl. Revision No. 724 of 1997 4 Learned counsel for the petitioners argued that the police party was holding a Nakabandi but no independent witness was joined. As per prosecution story, 115 bottles of country made liquor were recovered from the possession of the petitioners but no evidence on the file as to which of the petitioners was in conscious possession of the country made liquor. Case property was not produced in Court. No explanation by the prosecution as to why the case property was not produced. No order of the Court that the case property being of perishable nature was disposed of. Mr. K.S. Godara, Deputy Advocate General, Punjab, argued that police party was holding a Nakabandi but nobody was ready to join the investigation. Case property was not produced in Court because case property was deposited with the MHC but MHC did not produce the same in Court. Recovery was heavy. There was no reason to implicate the petitioners. First submission of the learned counsel for the petitioners is that police party was holding a Nakabandi. Independent witnesses were available but no one was joined. Non joining of independent witness was fatal but submission of the learned counsel for the petitioners carries little weight. Admittedly, the police party was Crl. Revision No. 724 of 1997 5 holding a Nakabandi, then tempo was sighted while coming from the side of Karnal. No question to join any one, as independent witnesses were not available at that time. If we presume that while holding a Nakabandi, independent witnesses were available and no effort was made to join any of them, then, on this short ground, prosecution story is not to be ignored. On the intervening night of 19th/ 20th July, 1985 party was holding a Nakabandi and at 12.05 A.M. Tempo was sighted coming from the side of Karnal. No witness stated that independent witness were available and no one was joined. Common experience shows that when police party is holding a Nakabandi during night time then nobody agrees to join the party and if any one comes forward to join the raiding party, then fails to appear to support the prosecution story. Independent witness joined, in case appears as PW then seldom supported the prosecution story. Normally, independent witnesses joined, appears in defence, to avoid enmity with the accused. If PW is appearing as DW, then prosecution story is not to be thrown out. Before recovery, police party had no enmity with the petitioners. No complaint to any authority after the present occurrence. When the police party had no enmity with Crl. Revision No. 724 of 1997 6 the petitioners then there was no idea to implicate. Possibility of false implication cannot be ruled out, especially when recovery is very small. When the recovery is heavy, then question arises how police official, after purchasing 115 bottles of country made liquor is to plant the same when there is no enmity with the petitioners. When no independent witness joined is examined, then evidence on the file is to be scrutinized with great care and caution. Due to non-joining of independent witness, prosecution story is not to be ignored out rightly. Next submission of the learned counsel for the petitioners was that case property was not produced in Court. There is no order of the Court on the file that concerned police station was not in a position to produce the case property on each and every date of hearing or as per order of the Court, case property was disposed of. 115 bottles of country made liquor were recovered from the possession of the petitioners as per story. Case property without any reason was not produced in Court. After recovery, case property was deposited with the MHC. So, prosecution was to produce the case property whether it ( case property) was in the custody of the Investigating Officer or the MHC. Learned Additional Crl. Revision No. 724 of 1997 7 Sessions Judge while disposing of appeal in para No.7 observed “that it is true that the case property (10 cartons containing 115 bottles of liquor) were not produced in the Court but simply on that ground the accused cannot be acquitted because Assistant Sub Inspector Ram Chander had deposited the case property with Moharir Head Constable and it was the responsibility of the in-charge of Malkhana to produce the case property when the prosecution witnesses were examined in the Court. By the time the recovery witnesses were examined in the Court, they had been transferred from Police Station, Sadar Karnal and it was not within their control to produce the case property in the Court. Recovery is of 115 bottles of country made liquor. So, many bottles cannot be planted by the police. When there is no motive to implicate, so production of case property in the Court is quite immaterial and not sufficient to grant acquittal of the accused”. Approach of the learned Additional Sessions Judge, Karnal seems to be not correct one. Country made liquor was recovered as per story and on return to the police station, the case property was deposied with the MHC then it was for the prosecution to produce the case property when Investigating Officer Crl. Revision No. 724 of 1997 8 and the recovery witnesses appeared in Court. MHC was also cited as PW but he failed to appear. Affidavit of MHC Dharam Pal was tendered. If the case property was with the MHC then why his affidavit was tendered. MHC with case property should have been produced in Court for cross examination. If MHC failed to bring case property on the date of hearing then APP should have requested the Court to adjourn the case and bound down the witnesses with request that case property is to be brought on the next date and after the case property is brought from the concerned Malkhana, then witnesses are to be examined. When prosecution witness appeared in Court then no request was made by the prosecution to bound down the witnesses with a direction that concerned police station should bring the case property. If the case property was to be produced by the MHC, then MHC should have been produced as PW. There was no idea to tender his affidavit. No order from the Court that on each and every date case property is not required to be produced, so, prosecution is allowed to dispose of the case property. So, with the non-production of the case property, prosecution story is liable to be ignored because the petitioners were deprived of their valuable right to cross examine the witnesses qua the case Crl. Revision No. 724 of 1997 9 property. Next submission of the learned counsel for the petitioners was that link evidence is missing. Recovery was effected by the police party headed by Assistant Sub Inspector Ram Chander. After recovery, case property was deposited with the MHC. Samples were sent to the office of Chemical Examiner through Constable Ram Kishan but Ram Kishan was not produced as PW. Affidavit of Ram Kishan was not tendered into evidence. Submission of learned counsel for the petitioners is correct one. After recovery by the police party headed by Assistant Sub Inspector Ram Chander, on return to the police station, case property was deposited with MHC Dharam Pal and MHC Dharam Pal had handed over samples to Constable Ram Kishan for deposit of the same in the office of Chemical Examiner but Ram Kishan was not produced as prosecution witness. Affidavit of Ram Kishan was not tendered into evidence. In the absence of statement or affidavit of Ram Kishan constable, link evidence is missing. Possibility of tampering with the case property cannot be ruled out. No explanation was furnished from the side of the prosecution as to why Constable Ram Kishan was not produced as PW. If due to some unavoidable Crl. Revision No. 724 of 1997 10 circumstances, prosecution was not in a position to examine Constable Ram Kishan then his affidavit could easily be tendered. Learned Deputy Advocate General, Haryana, failed to convince whether Ram Kishan is dead and with the death of Ram Kishan, prosecution was not in a position to produce Ram Kishan or his affidavit. When statement of Ram Kishan or his affidavit is missing from the file then tampering of the case property cannot be ruled out. No other contention was put forward. In view of all discussed above, impugned judgment suffers from infirmity and illegality. Judgments of the learned Additional Sessions Judge, Karnal dated 15.7.1997 and Additional Chief Judicial Magistrate, Karnal, dated 20.1.1997 are set aside. Revisionists are acquitted of the charges levelled against them. This petition stands disposed of accordingly. 28.7.2009 ( JORA SINGH ) Anoop JUDGE