Crl. Revision No. 464 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Crl. Revision No. 464 of 2005 Date of decision: January 31, 2011 Rajinder Singh and others ...Petitioners Versus State of Punjab ...Respondent (2) Crl. Revision No. 493 of 2005 Subash Chand ...Petitioner Versus State of Punjab ...Respondent (3) Crl. Revision No. 564 of 2005 Joginder Pal Singh and another ...Petitioners Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Jasbir Mor, Advocate, for the petitioners in Crl. Revision No. 464 of 2005. Mr. AS Syan, Advocate, for the petitioner in Crl. Revision No. 493 of 2005 None for the petitioner in Crl. Revision No. 564 of 2005 Ms. Gagan Mohini, AAG, Punjab. GURDEV SINGH, J. The above referred Criminal Revisions have been preferred Crl. Revision No. 464 of 2005 2 against the judgment dated 23.2.2005 passed by the Additional Sessions Judge, Patiala, vide which he dismissed the appeals preferred by the petitioners/accused; namely, Rajinder Singh, Joginder Pal Singh, Subhash Chand and Balraj Singh, against the judgment dated 31.8.2002 passed by JMIC, Samana, convicting the accused for the offence under Section 61 (1) (a) of the Punjab Excise Act, 1914 (hereinafter referred to as 'the Act') and sentencing them to undergo rigorous imprisonment for a period of six months and to pay fine of 1,000/- each and in default thereof to further undergo rigorous imprisonment for a period of one month. Briefly stated, the facts are that on 26.4.1997, Mohinder Singh ASI (PW-6), alongwith other police officials, was holding a nakabandi (picketing) on the tri-section of village Arno. At about 5.10 p.m. one Van make Maruti bearing No. DNA 3919 came with full speed from the side of village Tharua, which was stopped on the ground of suspicion. The same was being driven by Rajinder Singh, whereas the other accused were sitting on the rear seat thereof. When the search was taken by the said ASI, three plastic bags were recovered lying near the feet of those accused and each of that bag was found to contain pouches of capacity of 180 ml, containing country made liquor, make Patiala Rose. They could not produce any permit or licence for keeping that liquor in their possession. One pouch each was taken out of those three bags as samples, which were sealed by the ASI with the seal of 'MS', and, after preparation of the specimen seal was handed over to Rajbir Singh Constable. These samples and other pouches were taken into possession, vide memos Exs. PA, PB and PC. The ASI sent his ruqa Ex. PD to the Police Station through C. Kaka Singh and on the basis thereof formal FIR Ex. PE was recorded. On coming to the police Crl. Revision No. 464 of 2005 3 station, the ASI deposited the case property with Swaranjit Singh MHC (PW4). The samples were sent to the Chemical Examiner and were found to contain country made liquor. The JMIC charged the accused for the offence under Section 61 (1) (a) of the Act, after finding a prima facie case against them. They pleaded not guilty and claimed trial. The prosecution examined C. Nirmal Singh (PW-1), ASI Gulab Singh (PW-2), HC Gurbachan Singh (PW-3), MHC Swaranjit Singh (PW-4), C. Bant Singh (PW-5) and ASI Mohinder Singh (PW-6). After the close of the prosecution evidence, accused were examined by the trial court and their statements were recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. When they were called upon to enter on their defence, they examined C. Mehal Singh (DW-1) and Mai Ram (DW-2), in their defence. After going through the evidence, so produced and hearing Assistant Public Prosecutor for the State and the learned defence counsel for the accused, the trial court convicted and sentenced them, which was maintained by the Additional District Judge, as aforesaid. I have heard learned counsel for the parties. It has been submitted by the learned counsel for the petitioners that the prosecution is relying only on the statements of the official witnesses and in the absence of any independent corroboration, no reliance Crl. Revision No. 464 of 2005 4 can be placed upon the same. The conviction of the accused cannot be recorded only on the basis of the statements of the officials witnesses. Rajbir Singh Constable was the material witness as the seal after use was handed over to him and his non-examination is fatal to the prosecution. No official from the office of the Chemical Examiner was examined to prove the report and, as such, the same cannot be used against the accused. On behalf of Rajinder Singh accused, it has been argued that he was not found in possession of any such country made liquor and the same was recovered from the possession of the other accused. Therefore, he cannot be said to be in joint possession thereof merely on the ground that he was found driving the vehicle from which the liquor was recovered. On the other hand, it has been submitted by the learned State counsel that the conviction of the accused can be recorded on the basis of the statements of the official witnesses, even in the absence of any independent corroboration. From the evidence produced on the record, it stands proved that the contents of the samples were never tampered with till those were delivered in the office of the Chemical Examiner and, as such, non-examination of Rajvir Singh Constable is not fatal to the prosecution. She also submitted that the report of the Chemical Examiner is per-se admissible and there was no need to examine an official from his office to prove the same. Even Rajinder Singh was in conscious possession of the liquor so recovered from the Van and, as such, was rightly convicted and sentenced by the lower courts. There is no rule of law that before recording the conviction of the accused on the statement of the official witnesses, the same must be corroborated by some independent witnesses. The public apathy in joining Crl. Revision No. 464 of 2005 5 the police investigation makes it impossible for the police officials to join an independent witness in each and every case. In case the statements of the police officials, after thorough scrutiny, are found to be trustworthy, the conviction of the accused can be based upon the same, even in the absence of any independent witnesses. Those statements have not been assailed on any ground whatsoever. It cannot be said that the non-examination of Rajbir Singh Constable is fatal to the prosecution, if the prosecution is able to prove that the contents of the sample were never tampered with till those were delivered in the office of the Chemical Examiner. As per section 293 of the Code, any document purporting to be a report under the hand of a Government scientific expert, to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in the trial court. That section also applies to the Chemical Examiner. Therefore, the report of the Chemical Examiner is per-se admissible and the prosecution was not required to examine any official from that office for proving the same. The accused could have exercised their right under sub section (2) of that Section to summon and examine any such expert as to the subject matter of his report. That right was never exercised by them. It is the case of the prosecution itself that no such bag containing the alleged country made liquor was recovered from the possession of Rajinder Singh accused. He was driving the vehicle at the time the same was stopped. The bags were found lying in the feet of the other accused, who were sitting on the rear seat. No evidence has been produced by the prosecution for proving that this accused was in conscious possession of any of those bags. Crl. Revision No. 464 of 2005 6 It is a case where the prosecution has miserably failed to prove that all the pouches so recovered from the possession of the accused contained country made liquor. The samples were not taken from each of those pouches nor all those pouches were sent to the Chemical Examiner. Only one pouch was taken from each bag as sample. Any report made by the Chemical Examiner in respect of the contents of that pouch cannot be said to be in respect of all other pouches contained in those bags. In all fairness, the investigating officer was supposed to take the sample from each of those pouches. Even the three pouches so taken as sample cannot be said to be containing the country made liquor, in view of the evidence so produced by the prosecution. It is the prosecution case that the samples were sent on 28.4.1997 through Rajbir Singh Constable for delivering the same in the office of the Chemical Examiner, Patiala, but that Chemical Examiner refused to receive the same and those were brought back and re- deposited in the malkhana on that very date. It was on 18.5.1997, that these samples were collected by Mohinder Singh ASI from Gurbachan Singh AMC, and after opening the same, the contents of the pouches were transferred in the three different bottles, which were again sealed by him with the seal 'MS'. It appears that the objection of the Chemical Examiner was that the samples be sent in the bottles and not in the pouches. It was for the prosecution to prove that when these samples were taken back by the ASI from the malkhana, the seals thereof were intact so as to rule out the possibility of non tampering with the contents thereof. When that ASI was examined as PW-6 he no where stated that when he took back these samples from the AMHC, the seals thereof were intact. Therefore, it cannot be said that the contents of the samples, which were taken at the spot, were never Crl. Revision No. 464 of 2005 7 tampered with till those reached the office of the Chemical Examiner. In view of that it cannot be held that the sample so taken at the spot contained country made liquor. In the result, these revision petitions are hereby accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded. Records be sent back to the trial court. January 31, 2011 (GURDEV SINGH ) prem JUDGE