M.R.Sharma, J. - (1.) The petitioner was convicted under section 61(1) (a) of the Punjab Excise Act for being in possession of 8 bottles of illicit liquor.
(2.) The prosecution story in brief is that on July 4, 1970, Sub-Inspector Bhagat Singh was posted in C. I. A., Gurdaspur. He along with Jagtar Singh, Excise Inspector, was coming on a jeep from Pathankot side. They found the petitioner on the turning of road to Ghorata. On suspicion, the person of the accused was searched and it was loured that he was carrying 8 bottles of illicit liquor in a bladder concealed in his attach-case The liquor was taken inti possession, vide recovery memo Exhibit P. A. and ruqa Exhibit P. B. was sent to the police station for registration of the case. The learned trial Magistrate recorded the conviction of the petitioner on the ground that Jagtar Singh Excise Inspector (P. W. 1) and Bhagat Singh Sub-Inspector (P.W.2) could be implicitly relied upon. The appeal filed by the petitioner was partially accepted, sentence of imprisonment was remitted and the fino imposed on the petitioner was enhanced to Rs. 100.00. He has come up in revision before me presumably on the ground that if his conviction remains, he will be thrown out of service.
(3.) The learned counsel for the petitioner has submitted that the conviction should not have been recorded on the basis of the statements of the Excise Inspector and the Sub-Inspector of Police only The petitioner in his statement under section 342 Code Criminal Procedure stated that he had gone to the house of one Man Manohar Singh tor the execution of a warrant and this fact has been found to be true by the learned appellate Court. It does look somewhat strange that the police constable who was directed to execute a warrant, should be moving about with illicit liquor. It is also in evidence that Iqbal Singh Inspector had conducted an excise raid on village Deeded and some persons found in possession of illicit liquor were taken into custody. The case of the petitioner is that Iqbal Singh Inspector called him bad names and when he protested. Iqbal Singh got annoyed and falsely implicated him in this case Iqbal Singh Inspector, whose presence is admitted, has not been produced as a witness in this case. In the circumstances, it is open to the learned counsel for the petitioner to contend that a presumption should be drawn against the prosecution to the effect that it Iqbal Singh had been produced as a witness, his statement would have been favourable to the petitioner. It is no doubt true that, apart from minor discrepancies, the two witnesses of the prosecution have made cube consistent statements. But in the peculiar circumstances of this case, I am not prepared to affirm the conviction of the petitioner on their statements. If Iqbal Singh Inspector was in charge of the raid, normally he should have submitted a report against the petitioner under section 173 Code Criminal Procedure but this report is stated to have been submitted by Bhagat Singh Sub Inspector.;