Decided on April 10,1991

TILAK RAJ Appellant


KAMLESH SHARMA, J. - (1.) THIS Revision Petition is directed against the judgment dated 26.3.1987 passed by the Sessions Judga, Una. District Una. whereby the appeal of the petitioner accused, Tilak Raj was rejected and the judgment dated 15.11.1986 of Chief Judicial Magistrate, Una. was confirmed. The Chief Judicial Magistrate had convicted the petitioner under Section 61 (1) (a) of the Punjab Excise Act, as applicable to Himachal Pradesh, and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 500/-. In default of payment of fine, he was to undergo simple imprisonment for a period of two months.
(2.) THE prosecution case was that on 5.7.1984 Sh. Shamsher Singh, Head Constable (P.W. 1) posted at Police Check-Post Pandoga, District Una, alongwith Sh. Dalip Singh (P.W. 2), Peon Excise Department, routine checked bus No. PJG-1908 of Punjab Roadways. This bus was coming from Hoshiarpur and was bound for Nangal. When Sh. Shamsher Singh crossed the seat on which the petitioner was sitting he felt bad smell. On his enquiry, the petitioner pointed out two jerricans which contained 32, litres of spirit. He disclosed that these were brought from Jalandhar. At this, Sh. Shamsher Singh made the petitioner to alight from the bus along with the two jerricans. Later the petitioner was handed over to S.H.O., Sh. Munshi Ram (P.W. 6) who took sample from the jerricans and sent them for chemical examination. On receipt of the report of the Chemical Examiner, a challan was put up. S/Sh. Shamsher Singh (P.W. 1) and Dalip Singh (P.W. 2) have supported the prosecution case in toto. According to Sh. Shamsher Singh, the petitioner had disclosed to him that there was 32 litres of spirit in the both jerricans which he had brought from Jalandhar. At this, he brought down the petitioner and both the Jerricans from the bus and later handed them over to Sh. Munshi Ram S.H.O. who took the jerricans in his possession vide Memo Ex. P.A. after taking out samples from them. He has further stated that Sh. Dalip Singh (P.W. 2) a Peon of the Excise Department was with him during the checking of the bus and all this happened in his presence. Sh. Dalip Singh (P.W. 2) has reiterated what was stated by Sh. Shamsher Singh (P.W. 1). He had also signed Ex. P-A., Ex. P-B and Ex. P-C.
(3.) THE prosecution has also produced the driver of the Bus, Rajan Kumar (P.W. 5) who has stated that his bus was checked by the Police at Pandoga village and two jerricans containing spirit were found underneath the seat on which one Babu was sitting. Anyhow, he showed his in ability to identify that Babu. He has further stated that the Babu was made to get down from the bus alongwith the jerricans and thereafter he drove away the bus from that place. Sh. Munshi Ram, S.H.O. (P.W. 6), has deposed that he took into possession both the jerricans vide Memo Ex. P-A and took out samples out of them which were sent to the Chemical Examiner whose report is Ex. P-E. He has also stated about the further investigation conducted by him. The other witnesses are formal and their statements need not be discussed for the purpose of deciding this petition.;

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