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2000 DIGILAW 383 (PNJ)

Massa Singh v. State of Punjab

2000-04-05

R.L.ANAND

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JUDGMENT R.L. Anand, J. (Oral) - This is a criminal revision and has been directed against the judgment dated 23.11.1987, passed by the Court of Additional Sessions Judge, Ferozepur, who maintained the conviction and sentence of the petitioner Shri Massa Singh, who was convicted by the trial Court under Section 61 of the Punjab Excise Act and was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 3,000/- or in default to further undergo R.I. for six months. 2. The brief facts of the prosecution case are that on 14.10.1984, ASI Arjinder Singh alongwith some other police officials was going towards village Maujgarh via Bangaliwala bridge in connection with patrolling. A secret information was received that a tractor-trolley carrying illicit liquor was going to village Talwandi Nepalan via Maujgarh. Finding the information reliable, the police party hid itself near the way which led to the main road of Makhu at a low lying area in the revenue state of village Talwani Nepalan. After about half an hour, a tractor make "International" No. 1596 PUB with trolley came from the side of village Maujgarh. The tractor trolley was signalled to stop. Massa Singh petitioner was driving the tractor trolley, and he was arrested when he tried to get down from the tractor and to slip away. The search of the trolley led to the recovery of twenty (20) tubes containing illicit liquor Ex. P-1 to Ex. P-20. From each tube 375 Mls of illicit liquor was separated to serve as sample and the remaining contents of each tube, when measured, came to the capacity of 80 bottles. After measurement, the contents were again transferred into the same tubes. 20 sample pints and 20 tubes were sealed with the seal bearing letters "AS", specimen sketch of the seal used was separately prepared and the seal after use was entrusted to constable Jasbir Singh. The case property was taken into police possession vide recovery memo Ex. PA, attested by constables Jasbir Singh and Sarabjit Singh. The tractor Ex. P-21 and trolley Ex. P-22 were also taken into police possession vide the same recovery memo Ex. PA. The accused could not produce any licence. Ruqa Ex. PC was sent to the police-station, where on its basis a formal FIR Ex. PC/1 was registered against the accused. Site plan Ex. The tractor Ex. P-21 and trolley Ex. P-22 were also taken into police possession vide the same recovery memo Ex. PA. The accused could not produce any licence. Ruqa Ex. PC was sent to the police-station, where on its basis a formal FIR Ex. PC/1 was registered against the accused. Site plan Ex. PP showing the place of recovery was also prepared at the spot with correct marginal notes. Statements of the witnesses were recorded. On return to the police-station, the case property was deposited with the MHC. On receipt of the report of the Chemical Examiner and on completion of all other necessary formalities, the accused was challaned in the Court of area Magistrate. 3. Copies of the documents, relied upon by the prosecution, were supplied to the accused as required under Section 207 Criminal Procedure Code The accused was charge- sheeted under Section 61(1)(a) of the Punjab Excise Act, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined ASI Arjinder Singh as PW-1 and constable Jasbir Singh as PW-2. The prosecution also placed on record report Ex. PE of the Chemical Examiner and closed the case after tendering into evidence the affidavits of the formal witnesses. 5. The statement of the accused was recorded under Section 313 Criminal Procedure Code in which all the incriminating evidence appearing against the accused was read out to him to which he denied and stated that he was innocent. He did not lead evidence in defence. 6. The learned Magistrate vide judgment and order dated 19.9.1987 convicted and sentenced the accused in the manner as stated above. 7. Aggrieved by his conviction and sentence, the petitioner filed an appeal before the Court of Additional Sessions Judge, Ferozepur who vide judgment dated 23.11.1987 dismissed the appeal of the petitioner by maintaining the conviction and sentence awarded by the trial Court. 8. Still aggrieved by his conviction and sentence, the present revision has been preferred. 9. I have heard Shri Darshan Lal, Deputy District Attorney, appearing on behalf of the State and have gone through the grounds of revision and in my opinion, this revision deserves to be accepted on the short ground that the Investigating Officer inspite of the fact that he received a secret information did not associate any independent witness when he had the ample opportunity to do so. It is the admitted case of the prosecution that ASI Arjinder Singh received the secret information that a tractor-trolley carrying illicit liquor was going to village Talwandi Nepalan via Maujgarh and he further found the information as reliable. 10. In these circumstances, it was obligatory on the part of the Investigating Officer to take the assistance of the independent witness from a nearby village. Even if it is assumed for the sake of argument that the Investigating Officer had no time to associate any independent witness and he was in hurry to arrest the petitioner at the first instance still, the police-party must have remained at the spot for the sufficient time keeping in view the nature and contents of the recovery. The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Courts below. There is no quarrel with the proposition of the law that the statements of the police officials can be acted upon and it cannot be rejected outrightly simply because they possess the official status but before acting upon such statements the rule of prudence requires that the statement of such witness must inspire confidence in the mind of the Court. 11. The citation relied upon by the Courts below reported as 1956 Supreme Court 217, Aher Raja Khima v. State of Saurashtra, will not apply to the facts of the present case. Similarly citation reported as 1977 PLR 571, State of Punjab v. Ram Parkash, will not apply to the facts of the present case as the present case is a case of secret information. The Investigating Officer has not explained that he was not in a position to arrange an independent witness at any stage of the investigation. 12. In this view of the matter, I accept this revision and set aside the conviction and sentence of the petitioner awarded by the Courts below and acquit the petitioner of the charge framed against him. The petitioner shall stand discharged from the bail bound/surety bond and the case property taken into possession from the petitioner, shall be returned to him. Petition allowed.