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2000 DIGILAW 318 (PNJ)

Achhar Singh v. State of Punjab

2000-03-17

V.S.AGGARWAL

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ORDER V.S. Aggarwal, J. - The present petition has been filed by Achhar Singh (hereinafter described as "the petitioner") directed against the judgment of the learned Judicial Magistrate Ist Class, Nakodar, dated 30.11.1985 and the order of sentence of even date and also of the learned Additional Sessions Judge, Jalandhar, dated 18.2.1988. The learned Judicial Magistrate held the petitioner quality of the offence punishable under Section 61(1)(a) of the Punjab Excise Act, 1914 (for short "the Act") and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2000/-. In default of payment of fine, the petitioner was to further undergo rigorous imprisonment for two months. The appeal preferred by the petitioner had been dismissed. Hence, the present revision petition. 2. The relevant facts of the prosecution case are that on 17.8.1993 ASI Jagir Singh alongwith ASI Suba Singh, Head Constable Bakhshish Singh and certain other Constables were patrolling the area. When they reached village Chhote Billa, the police party joined Kashmir Singh son of Harnam Singh to be a public witness. The petitioner was seen coming from the opposite side. He was holding a gunny bag on his head. On seeing the police party, he tried to slip away but was apprehended on suspicion. The gunny bag contained a tube which contained the illicit liquor. A sample of 180 ml. was taken and the remaining liquor was converted into 60 bottles. The sample and the tube containing the illicit liquor were sealed and so were the bottles. They all were taken into possession vide the recovery memo. Ruqa Exhibit PB was sent to the police station. On the basis of the same, a formal First Information Report was recorded. The rough site plan was drawn and the petitioner was formally arrested. On receipt of the report from the Chemical Analyst, report under Section 173 of the Code of Criminal Procedure was presented in the Court. 3. Charge was framed against the petitioner with respect to the offence punishable under Section 61(1)(a) of the Act to which the petitioner pleaded not guilty. During the course of trial, the State did not produce the sole independent witness but only examined Head Constable Bakhshish Singh and ASI Jagir Singh. In addition to that affidavits of formal witnesses were tendered. Charge was framed against the petitioner with respect to the offence punishable under Section 61(1)(a) of the Act to which the petitioner pleaded not guilty. During the course of trial, the State did not produce the sole independent witness but only examined Head Constable Bakhshish Singh and ASI Jagir Singh. In addition to that affidavits of formal witnesses were tendered. The learned Judicial Magistrate on appraisal of evidence held that it has been established beyond all reasonable doubts that the illicit liquor was recovered from the possession of the petitioner. Accordingly, the petitioner was held guilty of the above-said offence and the order of sentence referred to above was passed. 4. An appeal was filed. The learned Additional Sessions Judge, Jalandhar, rejected the appeal holding that it is not necessary that public witness should always be examined. Relying on the testimony of the official witnesses, the judgment and order of sentence passed by the learned Judicial Magistrate were upheld. 5. As is apparent from the perusal of evidence, the prosecution had cited one Kashmir Singh to be a public witness. It is the case of the prosecution that in his presence the recovery was effected and all the proceedings took place. During the course of trial, as mentioned above, he was not examined. 6. The importance of joining public witness is well known. As a matter of prudence, the Courts have been insisting that public witness should be joined but it is true that it always varies with the facts and circumstances of each case. If in a particular case the official witnesses are reliable and on the basis of their testimony an order of sentence is passed, indeed, it cannot be termed that it is irregular or illegal. But one cannot lose sight of peculiar facts of each case. However, cogent reasons should be forthcoming as to why the public witness is not being examined. The same is absent in the facts of the present case. 7. This fact has not to be viewed in isolation. The prosecution produced rough site plan Exhibit PC which shows that the petitioner was arrested from the road near village Bade Billa. As mentioned above, the prosecution has come to the Court asserting that the petitioner was arrested from village Chhote Billa. This discrepancy has never been tried to be explained. This fact has not to be viewed in isolation. The prosecution produced rough site plan Exhibit PC which shows that the petitioner was arrested from the road near village Bade Billa. As mentioned above, the prosecution has come to the Court asserting that the petitioner was arrested from village Chhote Billa. This discrepancy has never been tried to be explained. In other words, it is doubted what is being alleged against the petitioner is correct. The site plan shows that between Chhote Billa and Bade Billa there is a road and fields. The importance of the rough site plan in this regard in the peculiar facts assumes great importance because it affects adversely on the genuineness of the entire prosecution version. 8. When such is the situation, the order holding the petitioner guilty cannot be sustained. It is not proved beyond all reasonable doubts that the petitioner is not entitled to the benefit of doubt. Accordingly, the revision petition is accepted. The impugned judgments and order of sentence are set aside and awarding the benefit of doubt the petitioner is acquitted of the charge. Revision allowed.