Sunil Kumar v. State of Punjab

with Mr. J.S.Khiva, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the respondent-State. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioner Sunil Kumar was tried in case FIR No. 152 dated

7.8.1996 registered at Police Station City, Hoshiarpur, under Section 61 (i)(a) of the Punjab Excise Act (for short “the Act”). The Court of learned Chief Judicial Magistrate, Hoshiarpur, found the petitioner guilty of offence and convicted and sentenced him to undergo rigorous imprisonment for eighteen months and a fine of Rs.2,000/-, in default whereof to further undergo for three months. Aggrieved against the same, petitioner filed an appeal, which was dismissed by the Court of learned Additional Sessions Judge, Hoshiarpur. Case of prosecution is that the police party along with Jagan Criminal Revision No. 472 of 1999 2 Nath, Excise Inspector for checking of excise cases, were present near Shimla Pahari Chowk, when an information was received from special informant that Sunil Kumar son of Badri Nath, resident of Joshian Gali, Hoshiarpur, indulge in the sale of illicit liquor and is bringing heavy quantity of liquor from Bhangi Choe towards Dhobi Ghat, in case the raid is effected, he can be apprehended at the spot. Believing the information to be reliable, the Investigating Officer made an attempt to associate independent witness but due to fear no public man came forward. The police party in a private jeep went towards the spot. They found that one person on seeing the police party retraced his steps. On suspicion, he was apprehended and he disclosed his name to be Sunil Kumar son of Balbir. His personal search was conducted. From the bag on his right shoulder, 36 bottles of Indian Made Foreign Liquor brand “Gold Riband” were recovered. The FIR was investigated. Report under Section 173 Cr.P.C. was submitted. The petitioner was charge sheeted for an offence under Section 61(i)(a) of the Act. A charge was also framed under Section 211(7) Cr.P.C. In which it was stated that under the provisions of Section 68(A) of the Act, he is liable for enhanced punishment because of his previous conviction in five cases, particulars of which were given in the charge under Section 211 (7) Cr.P.C. It will be apposite here to reproduce the same as under:- “1. In FIR No. 42 dated 19.5.1994 under Section 61 of the Ex. Act, you were convicted by the Court of Sh.P.S.Bajaj, Chief Judl. Magistrate, Hoshiarpur on

23.8.1994 and released on probation of Criminal Revision No. 472 of 1999 3 good conduct and behaviour for a period of six months in the sum of Rs.3000/-.

2. In FIR No. 172 dated 25.11.1994 under Section 61 of the Excise Act, you were convicted by CJM, Hoshiarpur, on

12.8.1996 and released on probation on furnishing probation bonds for the period of one year and in the sum of Rs.1000/-.

3. In case FIR No. 184 dated 21.12.1994 under the Excise Act, P.S. City you were convicted by the Court of Chief Judl. Magistrate on 12.8.1996 and released on probation on furnishing probation bonds in the sum of Rs.3000/-.

4. In case FIR No. 15 dated 9.2.1995 police station city under the excise Act you were convicted by the court of chief Judl. Magistrate, Hoshiarpur on 6.2.1994 and released on probation under Section 4 of the Probation of Offenders Act.

5. In case bearing FIR No. 91 dated

28.6.1995 you were convicted by the court of Chief Judl. Magistrate, on

4.9.1997 and sentences to RI for 3 months and to pay a fine of Rs.500/-.” Prosecution has examined Jagan Nath, Excise Inspector as Criminal Revision No. 472 of 1999 4 PW.1. He deposed regarding the apprehension of accused, recovery of 36 bottles of whisky make “Gold Riband” effected from the petitioner. He has also drawn the samples from each bottle. The defence failed to cause any dent in cross-examination except that the witness stated in the Court that he has not seen the case property in the Court. PW.2 Gurmel Singh, Head Constable, has been examined to prove link evidence regarding the deposit of case property i.e. bottles Ex.P1 to Ex.P36, bag Ex.P37 and samples and its further transmission through the Constable to the Laboratory. He is also officer who carried investigation. Prosecution tendered affidavit of Gurdial Singh, Moharrir Head Constable, as Ex.PE along with the report of Chemical Examiner Ex.PD and also affidavit of Narinder Singh, Constable, as Ex.PF. Thereafter statement of accused under Section 313 Cr.P.C. Was recorded. Accused stated in his statement under Section 313 Cr.P.C. that he has been falsely implicated in case of recovery of six bottles of liquor. It was further stated that he made representation to the Senior Superintendent of Police and Deputy Inspector General of Police. Before the trial Court, argument was raised that the case rest upon the evidence of official witnesses and no independent witness has been joined by the police. It has been further urged that the affidavits have been tendered but no opportunity has been given to the accused to cross-examine those formal witnesses. The Court noticed that on

21.5.1998 when the affidavits of formal witnesses were tendered, statement of accused was recorded that he does not intend to cross- examine the witnesses. Learned trial Court held that a sufficient Criminal Revision No. 472 of 1999 5 opportunity was given which the accused had not availed. The Courts below had placed implicit reliance upon PW.1 Jagan Nath, Excise Inspector and PW.2 Gurmel Singh, Head Constable. The Courts held that their evidence aspire confidence and no independent witness is required. Before the Appellate Court, only argument raised was that no independent witness has been examined and no reliance should be placed on the official witnesses. Learned Appellate Court has held that excise witness cannot be termed as police witness. I have heard Mr. R.K.Battas, learned senior counsel for the petitioner assisted by Mr. J.S.Khiva, Advocate and Mr. Mehardeep Singh, learned Assistant Advocate General, Punjab. It has been contended by Mr. Battas that PW.2 Gurmel Singh, Head Constable, who had carried out investigation under the Act has not joined any independent witness. It has been further stated by Mr. Battas that learned Appellate Court committed a grave error to hold that PW.1 Jagan Nath, Excise Inspector, was an independent witness. The two Courts below are unison to place implicit reliance on the testimony of PW.1 Jagan Nath, Excise Inspector and PW.2 Gurmel Singh, Head Constable. This Court while exercising revisional jurisdiction cannot re-appreciate or re-evaluate the evidence. At this stage, Mr. Battas contended that the petitioner has suffered a protracted trial. The present FIR was registered in the year

1996. The petitioner was taken into custody on 9.4.1999. He was granted bail by this Court on 22.4.1999. he has undergone about 13 days of his actual sentence. Since the petitioner has been convicted Criminal Revision No. 472 of 1999 6 previously in five cases and his antecedents are not such that this Court can reduce his sentence to already undergone. However, protracted trial is to be construed as mitigating circumstance. To balance the aggravating and mitigating circumstances, it will be appropriate if the sentence of petitioner is reduced from 18 months to nine months rigorous imprisonment. However, sentence of fine is enhanced to Rs.10,000/-, which shall be deposited within three months from the date of receipt of certified copy of this order. Failure to deposit the amount of enhanced fine, the petitioner shall undergo rigorous imprisonment for three months, in default. With these modifications, the present revision petition is disposed off. May 6, 2008 “DK” (Kanwaljit Singh Ahluwalia) Judge