Criminal Revision No. 1758 of 2001 -1- *** IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1758 of 2001 Date of decision: December 24, 2010 Nirmal Singh .. Petitioner Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. P.P.S. Duggal, Advocate for the petitioner. Mr. O.P. Dabla, DAG, Punjab for the respondent. A.N. Jindal, J Vide judgment dated 24.8.2000 passed by the trial court, the petitioner was convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- under Section 61 (1) (c) of the Punjab Excise Act, 1914 ( for brevity, 'the Act' ). His appeal was also dismissed 19.11.2001. On 25.9.1996, ASI Jugraj Singh along with other police officials as well as one Excise Inspector were going towards village Ratta Khera and Karmuwalla where ASI Jugraj Singh received secret information that the accused was distilling liquor while installing working still in the field situated in the area of village Ratta Khera and if raid is conducted then the accused could be apprehended red handed. Believing the information to be correct, ruqa was sent for registration of the case and ASI Jugraj Singh after joining Kartar Singh raided the disclosed place and caught the accused while operating the working still. The Investigating Officer dismantled the working still and its components and took the same into possession along with lahan vide memo Ex.P4. The lahan as well as the other drums containing lahan as recovered from the place of recovery were got tested Criminal Revision No. 1758 of 2001 -2- *** from Excise Inspector Tarlochan Singh (PW1) whereas the sample of illicit liquor was sent to the office of the Chemical Examiner. On receipt of the report of the Chemical Examiner Ex.PX and on completion of the investigation challan was presented in the court. The accused was charged under Section 61 (1) (c) of the Act, to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined EI Tarlochan Singh (PW1), C. Sukhwinder Singh (PW2), HC Sukhwant Singh (PW3), MHC Jaswant Singh (PW4) and ASI Jugraj Singh (PW5). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. In defence, he examined Kartar Singh (DW1). The trial resulted into conviction. His appeal also failed. Arguments heard. Record perused. The first contention raised by the learned counsel for the petitioner is that the independent witness so cited was given up. Howefer, he has supported the defence version, therefore, the case of the prosecution is doubtful. In this regard, he has relied upon the judgment delivered in case Bachan Singh vs. State of Punjab 2000 (1) RCR (Criminal) 113. In that case the witness had explained that he had gone to the police station for his own work and was made to sign on blank papers. Having gone through the judgment delivered in Bachan Singh's case (supra), the same is not applicable to the facts of the present case. Here in this case, Kartar Singh has not explained as to how his thumb impression came on the recovery memo. His blatant reply regarding ignorance about the occurrence and his non explanation as to how his thumb impressions came on the police papers clearly indicate that he intentionally withheld himself from the prosecution and supported the case of the accused. As regards the non examination of Kartar Singh it has been often seen that the independent witnesses remain in more contact with the accused than with the police functionaries. They are always reluctant to support the cause of the State as they know that by doing so, they will gain nothing but the enmity of the accused. Not only this, they do not stand by Criminal Revision No. 1758 of 2001 -3- *** the State for diversity of the reasons, may be extraneous or otherwise. As regards the argument that though the witness was made to resile, it was the duty of the prosecution to examine him, it is observed that the argument is without any basis. It is the dominus-lites of the State to examine all or any of the prosecution witnesses and the State cannot be compelled to examine each and every witness. Again, it is reiterated that the official witnesses are at par with the independent witnesses unless they are dubbed as inimical or interested witnesses. No such allegations have been levelled against the official witnesses. Further more, no such discrepancies have been pointed out in their testimonies which may be sufficient to shatter their credibility or reliability. In such circumstances law does not require any further corroboration. The present case is on better footings. After the recovery of lahan, it was deposited with MHC Jaswant Singh , EI Tarlochan Singh then was summoned who examined the lahan in a drum weighing about 80 kgs and two drums weighing 150 kgs each which were bearing the seal of “JS”. After analyzing the lahan, he vide his report Ex.PA, opined that the said drums contained lahan fit for illicit distillation. Thereafter, he sealed those drums with his own seal bearing impression “TSE”. Further Jaswant Singh (PW4) has tendered himself for cross-examination, besides tendering his statement Ex.PW5/A in the shape of an affidavit and he was not cross- examined on any point. Thus, the fact with regard to deposit of three drums of lahan and articles of working still with him stand un-challenged. In these circumstances and in view of such corroborative evidence on the record, mere non-examination of the independent witness becomes insignificant. As regards the argument that the case property did not bear the identification mark, it has been observed time and again that these are the witnesses who are to prove the recovery of the illicit liquor and in the present case, two witnesses namely HC Sukhwant Singh (PW3) and ASI Jugraj Singh (PW5) have duly proved that the accused was found distilling the illicit liquor by way of working still. They have duly identified the case property in the court. The production of the case property is merely a corroborative piece of evidence. It has also been often seen that the conditions of the malkhana in this part of the country are not congenial and Criminal Revision No. 1758 of 2001 -4- *** the same are exposed to sun, rain and rodents, therefore, the identification marks, some times, are bound to dis-appear with the passage of time. Any way, in the present case, the witnesses have duly identified the case property, therefore, in the given circumstances of the case mere non presence of the identification marks over the case property hardly effect the prosecution case. The learned counsel for the petitioner has placed reliance over the judgment delivered in case Dilbagh Singh vs. State of Haryana 1991 (2) C.C. Cases 448 (HC) in order to contend that the identification marks create a doubt over the recovery of the case property. In this regard it is observed that in Dilbagh Singh's case (supra) the case was based on the testimonies of two petty police officials. The Excise Inspector Ram Singh who had tested the lahan was also not examined. The witness with whom the case property was deposited and who had taken the sample was not examined. In those circumstances, the court had held that it was the duty of the prosecution to keep the material exhibits of the case intact till the same were produced in the court. Any way, the facts of the instant case are quite distinct and ample evidence has been led by the prosecution in order to prove the recovery of the working still as well as three drums of lahan from the accused. As regards the judgment delivered in case Singara Singh vs. State of Haryana 1997 (2) RCR (Criminal) 783 in this case, the case property had not been produced at all. In those circumstances the court took the view that non production of the case property in the court was fatal, but, in the instant case the case property was produced and it was bearing some seals but the same were not legible. However, the witnesses have clearly identified the case property which was produced in the court, therefore, the aforesaid judgment is not applicable to the facts of the present case. Faced with the situation, learned counsel for the petitioner has urged that the recovery had been effected long back on 25.9.1996. The petitioner has suffered a lot due to the protracted proceedings pending in the court, therefore, some leniency on the quantum of sentence may be extended. Criminal Revision No. 1758 of 2001 -5- *** Taking stock of the entire circumstances of the case, it would be in the fitness of the things to take some lenient view in the matter. Resultantly, this petition is dismissed with the modification in the sentence which is reduced to six months without any alteration in the sentence of fine. December 24, 2010 (A.N. Jindal) deepak Judge