HARBANS SINGH RAI,J - (1.) BALDEV Singh son of Dalip Singh, was convicted by Sub Divisional Judicial Magistrate, Panipat under Section 61(1)(a) of the Punjab Excise Act, vide his order dated 29th November, 1985, and sentenced thereunder to rigorous imprisonment for three months and a fine of Rs. 1,000/-, or in default of payment of fine, to undergo further rigorous imprisonment for two months. His appeal was dismissed by Sh. S.K. Jain, Sessions Judge, Karnal, vide order dated 19th February, 1986. Feeling aggrieved he has come up in revision.
(2.) AS per the prosecution story, Jagdish Chander, HC, along with other police officials was present at the Canal Rest House Bahali on 19th November, 1984, on patrolling and excise detection duty when he received a secret information that the petitioner Baldev Singh r/o that village was in possession of lahan Jagdish Chander, HC, organised a party and raided the dera of the petitioner where the accused was present. He was interrogated during which he suffered a disclosure statement Ex. PB stating that he had burried a drum near the khera. He led the police party to the place of concealment and got drum Ex. P1, containing 180 kgs. of lahan, recovered from there. The contents of the drum Ex. P1 were tested by Sat Narain, Excise Inspector, and were found to be a mixture of gur, water and kikkar bark. The mixture was fully fermented and fit for illicit distillation vide report Ex. PA for the Excise Inspector. After investigation, the accused was sent up to face trial which ultimately led to his conviction and sentence as noticed above. In support of its case, the prosecution examined Sh. Sat Narain Sharma PW1, Excise Inspector, who proved his report Ex. PA aforesaid. Satbir Singh, Countable (PW-2), Zile Singh PW-3 and Jagdish Chander, HC PW-4, who comprised the raiding party which recovered illicit lahan from the possession of the petitioner, corroborated the prosecution case giving details of the raid of the place of the petitioner, the disclosure statement made by him leading to the recovery of illicit lahan from the petitioner, contained in drum Ex.P1.
(3.) AS there were basic contradictions in the prosecution evidence, the trial Court found that Zila Singh PW-3 may not have been present at the place and time of recovery, and, thus, excluded his evidence, with the following observations :- "Further the learned defence counsel pointed out the discrepancy in the testimony of PW3 and the remaining two eye-witnesses PW-2 and PW4 regarding the place where the accused was allegedly interrogated when he made his disclosure statement leading to the alleged recovery of drum Ex.P1. PW2 and PW4 have consistently stated that the secret information was received while the police party was present in the canal rest house Behali. On receipt of secret information, rukka was sent to the police station and thereafter the dera of the accused was raided where the accused was found present and was interrogated who made disclosure statement Ex. PB leading to the recovery of drum Ex. P1 which was taken into possession vide memo Ex. PC whereas PW3 has stated that Balwant Singh accused (instead of Baldev Singh accused) came to the rest house and he was interrogated in the rest house where he made his disclosure statement Ex. PB. It is true that the above discrepancy is a material discrepancy. So, it can easily be inferred that PW3 was not present at the time of interrogation of the accused when he allegedly made disclosure statement. PW3 also expressed his ignorance about the places visited by the police party and about the case, if any, was detected by the police in addition to the present case. He also expressed his ignorance about the fact as to when and from which side the informer came to the police. As such even if the statement of PW3 excluded even then there is consistent testimony of PW2 and PW4 proving the prosecution allegations." According to the prosecution, PW3 Zile Singh participated in the raid and he was very much present at the time of recovery. The approach of the trial Court in excluding the testimony of Zile Singh PW3 from consideration is not justifiable. The learned Sessions Judge while deciding the appeal did not consider this aspect of the matter. Apart from this lacuna, there is another serious dent in the prosecution case. At the time of the raid of the place of the petitioner, no effort was made by the prosecution to join any resident of the locality. In this view of the matter, the testimony of official witnesses alone cannot be sufficient to sustain the conviction of the accused. I am, therefore, not inclined to hold that the case against the petitioner has been proved beyond reasonable doubt. Consequently, the revision petition is accepted and the petitioner is given the benefit of doubt and acquitted of the charge. His conviction and sentence are set aside. Petition accepted.;