Bhagwant Singh v. State of Punjab

Mr.O.P.Dabla, Deputy Advocate General, Punjab, for the respondent-State. A.N.JINDAL, J: ***** Bhagwant Singh accused-petitioner (herein referred as 'the accused') was prosecuted for keeping in his possession 120 card-board boxes, each box containing12 bottles of illicit liquor. Consequently, vide judgment dated 27.08.2002, passed by the Chief Judicial Magistrate, Moga, he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3,000/- under Section 61(i)(a) of Punjab Excise Act, 1914 (for brevity 'the Act'). His appeal was also dismissed on 11.08.2003, by Addl. Sessions Judge, Moga. On 15.06.1995, Sub Inspector Udik Chand alongwith other police officials was holding a picket at old Zira Road near grain market, in connection with the excise checking. Under the instructions of Narinder Pal Singh, Superintendent of Police, Moga, and Simarjit Singh, Assistant Commissioner of Excise and Taxation Office, Faridkot, Sub Inspector Udik Chand had also joined Ramji Dass Mittal, Excise Inspector, Moga. At about 9:30 a.m., the accused while driving a truck bearing registration No.PB-04C-9786 came from the side of village Dhalle Ke. On suspicion, he signalled the truck to stop. After stopping, when the accused alighted from the truck, he was apprehended and on search of the truck, as per rules, Criminal Revision No.1760 of 2003 2 he was found in possession of 120 boxes, containing 12 bottles of liquor mark 'John Belt' in each box, kept concealed below black tarpaulin of polythene in the body of the truck, for which the accused could not show any permit or licence. All the aforesaid boxes were numbered from one to one hundred twenty and from each box, a sample was drawn and all the sample quarts were sealed with the seal of 'EI' bearing impression 'RD'. The sample parcels were also sealed. All the boxes, each box, containing eleven full bottles and one quart to a bottle, were put into respective gunny bags and the said gunny bags were sealed with the seal bearing impression 'RD' and taken into possession. Sample seal, after use, was handed over to Ramji Dass Mittal, Excise Inspector. The truck was also taken into possession. A ruqa was sent to the police station on the basis of which FIR was registered and the case was investigated. On submission of the report under Section 173 Cr.P.C., the accused was charged under Section 61 (i)(a) of the Act to which he pleaded not guilty and opted to contest. The prosecution in order to substantiate the charges examined Ramji Dass, Excise Inspector, Moga (PW1), Sub Inspector Udik Chand, Investigating Officer (PW2), MHC Gurdev Singh (PW3) and Lakhwinder Singh (PW4), who had tendered his affidavit. When examined under Section 313 Cr.P.C., the accused denied all the allegations levelled against him and pleaded his false implication in the case. No evidence was led in defence. The trial resulted into conviction. His appeal also failed. The only argument, which has been reiterated by the counsel for the petitioner, is that the Investigating Officer did not join any independent witness at the time of effecting the recovery, therefore, Criminal Revision No.1760 of 2003 3 recovery stands vitiated. Having pondered over the argument, the same sans merit. There is no requirement of law to join public witness in each and every case. Only the law of prudence requires that in order to give more authenticity and corroboration to the prosecution version, the public witness needs to be associated in order to attest the recovery memo and it may be required in the case of secret information or raid but in cases of chance recovery sometime the witnesses are not joined for want of availability. However, in case no public witness has been joined, a duty has been cast on the Court to scrutinize the evidence with greater care and caution so as to rule out any false implication. In the instant case, both the official witnesses have consistently stated that 120 boxes of English liquor were found from the possession of the accused for which he could not show any permit or licence. Such heavy recovery could not be foisted upon the witnesses from their own source and no such finger could be raised against them to dub them as inimical or interested witnesses. Both the Courts below have rightly concluded that the evidence of the official witnesses is cogent, convincing, reliable and trustworthy. In Akmal Ahmed versus State of Delhi 1999 (2) RCC 297 (SC), it was held that it is now well- settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi vs. Sunil 2001 (1) RCR (Crl.) 56 : (2000) 1 SCC 748, it was held as under:- “It is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way Criminal Revision No.1760 of 2003 4 round. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” In Appa Bai and another versus State of Gujarat, AIR 1988 SC 696, it was observed that the prosecution story cannot be thrown out on the ground that an independent witness had not been examined by the prosecution. It was further observed in the said judgment that the civilized people are generally insensitive, when a crime is committed even in their presence and they withdraw from the victims' side and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals and do not involve themselves in it. It was also observed in case Ganesh son of Kapil Dev, resident of Haraj, Police Station Sheela Ganj, Distt. Moti Hari (Bihar) versus State of Haryana 2009 (2) RCR (Criminal) 39 by the Division Bench of this Court that prosecution story cannot be thrown away on the ground that independent witness had not been examined by the prosecution. I also do not agree to the next contention that the seal after use was not handed over to the independent person. It has been held in Full Bench judgment of this Court in case Piara Singh versus State of Punjab 1982 C.L.R. (2) 447, that the seal on the sample of the illicit liquor, recovered from the accused, was not entrusted to any independent person. when there are no allegations that the seal was tempered and prejudiced the accused. The prosecution case cannot be thrown away merely on this sole ground. As regards the discrepancies in the statements of witnesses, the counsel has taken me through the statements of Ramji Dass, Excise Criminal Revision No.1760 of 2003 5 Inspector (PW1) and Sub Inspector Udik Chand (PW2). Both are consistent in all the material particulars and no such discrepancy has been pointed out which may go to the root of the case to enable this Court to doubt the prosecution version. As regards the argument that 120 boxes were containing 12 bottles in each box but the samples were not drawn from all the 1440 bottles, therefore, the recovery of the other bottles cannot be said to be proved, is without any merit. So far drawing of the samples from 120 bottles, as per chemical examiner's report, these were found to be illicit liquor and such report was sufficient to hold the accused guilty of the offence. Anyway, the accused was not authorized to keep such a huge quantity of liquor, though it may be illicit, without licence or permit, as such, the offence under Section 61(i)(a) of the Act stands established. Both the Courts below have returned the concurrent findings of fact regarding the guilt of the accused and no such defect, illegality or irregularity has been pointed out which may render the judgment as invalid, warranting interference by this Court. Resultantly, this revision petition, being devoid of any merit, is dismissed. Amicus Curiae would be at liberty to claim remuneration from the competent authority as per rules. (A.N.Jindal) Judge

15.12.2010 mamta-II