UJAGAR SINGH,J - (1.) THIS is a criminal revision against the order passed by the Sessions Judge, Ferozepur dated 19.8.1985 whereby the petitioner stands convicted and sentenced for an offence under Section 61(1)(c) of the Punjab Excise Act. The sentence imposed is to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/-. In default of payment of fine the petitioner was directed to suffer further R.I. for two months. Appeal against the order failed.
(2.) THE petitioner was apprehended while distilling illicit liquor by means of a working still on 14.3.1982. After investigation, report under Section 173 of the Code of Criminal Procedure was submitted. The petitioner was tried by the trial Court. The prosecution examined PW1 Excise Inspector or Hardial Singh, PW2 ASI Basant Singh and PW3 Constable Tehal Singh. Affidavits Ex.PE and PF of Constable Darshan Singh and MHC Nand Singh respectively were tendered into evidence. The report of the Chemical Examiner Ex.PD was also tendered. I have gone through the statements of the witnesses and other record thoroughly. P.W.1 Excise Inspector Hardial Singh stated that on 16.3.1982 he was posted at Fazilka and reached Police Station Fazilka MHC Nand Singh produced a drum containing 80 kg of Lahan and another drum containing 100 kg of lahan. Both the drums had a seal of BS fixed thereon. The seals were broken by him and the lahan was tested found to be fit for distillation. Thereafter he prepared a report which is Ex.PA. After testing, the drums were sealed by his own seal. In his statement, this witness has nowhere stated that he compared the seal, found to have been fixed on the drums with any sample seal. The day he appeared, the drums had no chits or seals affixed thereon. In this view of the matter, it is not possible to draw an inference that the seal was intact and compared with the sample seal. The fact that the drums produced in court had no seal or chit thereon, the identity of the drums tested by this witnesses is not established. Affidavit of MHC Nand Singh Ex.PF also does not indicate that PW1 Excise Inspector Hardial Singh had compared the seal fixed on the drums with the sample seal alleged to be that of the said ASI. The affidavit also does not reveal that MHC Nand Singh gave that sample seal to the Excise Inspector Hardial Singh for comparison. The affidavit only shows that on 16.3.1982 Excise Inspector Hardial Singh came to the Police Station for testing the Lahan contained in both the drums which he produced and the Excise Inspector had broken the seal and after testing the lahan, gave the report after fixing his own seal thereon, handed over the drums to him. Affidavits of both the Constable Darshan Singh Ex.PE and MHC Nand Singh Ex.PF do not have the legally required verification. Both the affidavits are verified to be correct on knowledge, as well as information. This gives no indication which part of the affidavit is on the basis of knowledge and which on the basis of information. In this situation, both the affidavits cannot be taken into consideration.
(3.) IT may be noted that apart from the lahan contained in the drums, some illicit liquor as also taken into possession and the same was poured into 5 bottles, but no separate charge was framed against the petitioner for an offence under Section 61(1)(a) of the Punjab Excise Act and, therefore, for possession of illicit liquor, he was not convicted. Although there is a mistake in the order of the Sessions Court that the petitioner was convicted under Section 61(1)(a) of the Act, yet the same seems to be accidental. Copy of judgment in case : State v. Harnam Singh who was acquitted by the same Court for allegedly distilling illicit liquor through a working still on the same day was acquitted. It is of no avail to the revision-petitioner, because the finding given in that case was that HC Malkiat Singh was not present at the time of alleged raid and, therefore, the prosecution could not claim its version to be correct.;