Crl. Revision No. 589 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 589 of 2005 Date of decision: March 9, 2011 Nachhattar Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. SS Chadha, Advocate, for the petitioner. Mr. PS Paul, DAG, Punjab. GURDEV SINGH, J. (Oral) This revision has been preferred by Nachhattar Singh, petitioner/accused, against his conviction under Section 61 (1) (c) of the Punjab Excise Act, 1914 (hereinafter referred to as 'the Act') and sentence of one year rigorous imprisonment and fine of ` 5,000/-, which was passed by the Chief Judicial Magistrate, Ferozepur, vide judgment dated 21.5.2003 and which was upheld by the Additional Sessions Judge, Ferozepur, vide judgment dated 22.12.2004, in the appeal preferred by him against his conviction and sentence. The prosecution story, in brief, is that on 3.1.2000 Angrej Raj, HC (PW-1), alongwith Jasvir Singh, Constable (PW-2) and other police officials, was present in bus stand of Moti Nagar, where he received a secret information that the accused was in the habit of distilling and selling illicit Crl. Revision No. 589 of 2005 2 liquor and in case a raid was conducted, lahan and illicit liquor in huge quantity could be recovered from his possession. On the receipt of that information, HC sent his ruqa Ex. P1 to the police station, on the basis of which formal FIR Ex. P2 was recorded against the accused. A raid was conducted in the house of the accused and he was found distilling illicit liquor with the help of working still, which was installed in the court yard of his house. The working still was dismantled and cooled down and different components thereof were taken into possession, vide memo Ex. P4. The small drum, which was being used as a boiler, contained 20 kg of lahan. The illicit liquor which was being distilled, was collected in a plastic container. One nip of liquor was taken from that container as sample and the remaining liquor was found to be measuring 1-1/4 bottles, which was re-transferred into the same container. The drum, sample and the plastic container were sealed by the HC with his seal 'AR', which after the preparation of the specimen seal was handed over to Jasvir Singh Constable (PW-2). These articles were also taken into possession, vide same memo Ex. P4. The HC prepared rough site plan of the place of recovery and after coming back to the police station deposited the case property with Harbhajan Singh, MHC (PW-3). On 5.1.2000, Balwinder Singh, Excise Inspector (PW-5) visited the police station and sealed drum was produced before him by the MHC. After breaking open the seal, he tested the contents thereof and found that it was a mixture of water, gur and kikker bark, the colur of which was dark brown, the taste was bitter and smell of liquor was coming therefrom. He also stated that some illicit liquor had already been distilled from that lahan. He gave his report Ex. P9 and after sealing the drum with his seal 'BS', handed over the same to Harbhajan Singh MHC. The nip sample was sent to the Crl. Revision No. 589 of 2005 3 Chemical Examiner on 10.1.2000 through Balwinder Singh (PW-4) and was delivered in that office with seal intact. Vide his report Ex. P7, the Chemical Examiner reported that sample contained illicit liquor. After completion of the investigation, challan was put in before the CJM, who found sufficient grounds for presuming that the accused committed offence punishable under Section 16 (1) (c) of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt, the prosecution examined Angrej Raj, HC (PW-1), Jasvir Singh, Constable (PW-2), Harbhajan Singh, MHC (PW-3), Balwinder Singh, Constable (PW-4) and Balwinder Singh, E.I. (PW-5). 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. All 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. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence, so produced and hearing Assistant Public Prosecutor for the State and the learned defence counsel for the accused, he was convicted and sentenced as aforesaid. I have heard learned counsel for both the sides. While challenging the conviction of the accused, it has been submitted by his counsel that the prosecution case is resting on the statements of the police officials, who have made totally discrepant statements and in the absence of independent corroboration the conviction of the accused could not have been recorded. He referred to the discrepancies/contradictions occurring during their cross-examination and which, according to him, are sufficient to label them as unworthy witnesses. Crl. Revision No. 589 of 2005 4 On the other hand, it has been submitted by the learned State counsel that the discrepancies which have occurred in the statements of these witnesses are normal and were bound to occur as they were examined after lapse of much time, after recovery itself. Those discrepancies in no way affect the merits of their testimonies. The prosecution case rests on the statements of the police officials. The recovery witnesses examined by it are even discrepant as to whether any effort was made to join an independent witness from the public or not. It was stated by Angrej Raj, HC (PW-1) that after receipt of secret information, Jagroop Singh Constable was sent to the village to call for the Lambardar, Sarpanch or a member of the Panchayat for joining as independent witness, who came back after about 30 minutes and disclosed that no such person met him in the village. Though Jasvir Singh, Constable (PW-2) also deposed about that fact but at the same time, he stated that some persons were present after the secret information was received but none of them was joined in the police party. Thus, the Investigating Officer had the opportunity to join an independent witness after secret information was received. This non-joining of an independent witness requires the court to scrutinize the statements of these police officials with much care and caution. Some glaring discrepancies have occurred in the statements of these witnesses. Angrej Raj HC (PW-1) stated that there was no shop of Piara Singh at the place where secret information was received, though there are shops at that place and that the secret information was received near the house of one Sodhi Jasbir. On the same aspect, it was stated by Jasvir Singh, Constable (PW-2) that there is shop of Comrade Piara Singh at that Crl. Revision No. 589 of 2005 5 place. According to the former witness, the police official who was sent to the police station with ruqa had come back to the spot at 5/5.30 p.m. but according to the latter witness that police official never came back to the spot. According to that Head Constable, the door of the house of the accused opens towards northern side, whereas according to the Constable the same open towards the eastern side. According to the HC, the plastic container, in which illicit liquor being collected was of black colour, whereas according to the Constable the same was of green colour. They are discrepant even with regard to the description of the seal, which was used for sealing the case property. According to the HC, the same was of the shape of ring, whereas according to the Constable the same was made of handle and not ring. All these discrepancies occurring in the statements of these police officials assume importance in the absence of any independent corroboration thereof and make those statements unworthiness of belief. No reliance could have been placed on their statements. The conviction of the accused could not have been recorded on the basis of such like statements. In the result, the revision is accepted. The conviction and sentence of the accused is hereby set aside and he is acquitted of the offence. The fine, if already paid, be refunded to him. Records of the trial court be returned forthwith. March 9, 2011 (GURDEV SINGH ) prem JUDGE