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2000 DIGILAW 410 (PNJ)

Sukhchain Singh v. State of Haryana

2000-04-17

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 5.9.1987, passed by the Addl. Sessions Judge, Karnal, who dismissed the appeal of the petitioner who was convicted by the J.M.I.C., Karnal, under Section 61(1)(c) of the Punjab Excise Act, as applicable to the State of Haryana. 2. The brief facts of the case are that the on 19.9.1984, HC Mohinder along with Jai Narain, Ramesh Chand and Mehtab Singh, Constables, was present in connection with patrolling at Rattan Chowk, Assandh. Maman Singh son of Chuhal Singh, Rajput, also met him per chance. While he was talking to him, he received a secret information against the petitioner to the effect that he was distilling illicit liquor by means of working still in the area of village Rangruti Khera. On receipt of the information, ruqa, Ex. PB, was sent to the police station, on the basis of which formal F.I.R., Ex. PB/1, was recorded by ASI Chandgi Ram. Thereafter, the police party raided the forest area and the petitioner was found feeding the fire to the Working Still while under a bar tree. The working still was a dismantled drum containing 80 Kgs. lahan. Working still and other items were taken into possession. One nip was separated from the canny containing illicit liquor. Remaining liquor was transferred into 5 bottles. These were taken into possession vide recovery memo Ex. PA, attested by the witnesses. Rough site plan was also prepared of the place of recovery and the sealed samples were sent to the office of the Chemical Examiner, who vide report, Ex. PR, declared the contents as illicit liquor and on completion of the investigation, the petitioner was challaned under Section 61(1)(c) of the Act, in the court of the area Magistrate who supplied the copies of the documents and framed a charge under the said section against the petitioner. The charge was read over and explained to the petitioner, who pleaded not guilty and claimed trial. 3. The learned Magistrate believed the story of the prosecution and rejected the defence version and convicted and sentenced the petitioner under Section 61(1)(c) of the Act vide judgment and order dated 2.7.1987. Aggrieved by the judgment and order of the learned Magistrate, the petitioner filed an appeal before the Court of Addl. Distt. Judge, Karnal, who vide the judgment dated 5.9.1987, dismissed the appeal. Aggrieved by the judgment and order of the learned Magistrate, the petitioner filed an appeal before the Court of Addl. Distt. Judge, Karnal, who vide the judgment dated 5.9.1987, dismissed the appeal. In this manner, the present revision. 4. I have heard Shri S.P.S. Parmar, Dy. D.A., Haryana, on behalf of the respondent and with his assistance have gone through the record of this case. 5. It is true that Maman Singh, independent witness has not been examined by the prosecution but it is no ground to reject the story of the prosecution., This witness was given up by the prosecution as having been won over by the petitioner. The law enjoins that on receipt of a secret information, the police party should try to associate an independent witness which has been done in this case. If the independent witness, for any reason, does not want to support the case of the prosecution, it is not the fault of the prosecution. It has become a habit on the part of the independent witnesses not to support the case of the prosecution when they are called upon to do so for the reasons which can only be explained by such persons. The story of the prosecution has been proved by Raj Singh, PW-3, who had tested the contents of the lahan and submitted his report, Ex. PQ. It has further been supported by Constable Remesh Chand and HC Mohinder Singh, PWs. 1 and 2, respectively. Both these witnesses have supported the genesis of occurrence. The law is well settled to the effect that the testimony of the official witnesses can be relied upon unless there are discrepancies inter se. No motive has been pointed out why the official witnesses are deposing against the petitioner. The only point which survives for determination is whether the petitioner should be granted probation or not. This aspect of the case has been dealt by the learned Addl. Session Judge in para-11 of the judgment, which runs as under :- "11. No motive has been pointed out why the official witnesses are deposing against the petitioner. The only point which survives for determination is whether the petitioner should be granted probation or not. This aspect of the case has been dealt by the learned Addl. Session Judge in para-11 of the judgment, which runs as under :- "11. So far as the sentence is concerned, the counsel for the appellant should be given the benefit of Probation of Offenders Act and placed reliance on Joginder Singh v. The State of Punjab, 1980 C.L.R. 196 wherein it was observed that prescription of minimum sentence under Section 61(1)(c) of the Punjab Excise Act, would not operate as a bar to the applicability of Sections 360 and 361 of Criminal Procedure Code or Sections 4 and 6 of the Probation of Offenders Act. It appears to me that the learned counsel has mis-led the rigour of the observations made in this case. Even in Bhola Singh v. State of Punjab, 1987(2) C.L.R. 151 the prayer for release of the appellant on probation was made although he was found in possession of 35 bottles of illicit liquor. His prayer was repelled and on the basis of the observations made in Full Bench referred to above, it was laid down that the offence committed under the Excise Act by the accused persons is motivated by greed of money at the cost of human life and he cannot normally be released on probation except for specific weighty reasons to be recorded by the court. In the present case, no extenuating circumstances have been brought forth on record which would warrant leniency in the matters of sentence. It is a matter of common knowledge that the consumption of illicit liquor is responsible for the loss of precious life of various persons which had brought havoc for the family whose bread winners have lost their lives. I, therefore, find hardly any merit in the submission made from the side of the appellant in this regard. Accordingly, I uphold the sentence awarded by the learned trial Court." 6. I do not agree with the reasoning of the learned Addl. Sessions Judge, Karnal, who has not rightly taken note of the law reported in Joginder Singh v. The State of Punjab, 1980 CLR 196. Accordingly, I uphold the sentence awarded by the learned trial Court." 6. I do not agree with the reasoning of the learned Addl. Sessions Judge, Karnal, who has not rightly taken note of the law reported in Joginder Singh v. The State of Punjab, 1980 CLR 196. In the present case, the recovery was effected on 19.9.1984 and after a lapse of 16 years, it may not be proper to send the petitioner inside the jail. Rather, he deserves the concession of probation. In this view of the matter, while maintaining the conviction of the petitioner under Section 61(1)(c) of the Act, the sentence of the petitioner is hereby modified and he is released on probation for a period of one year provided he furnishes bail bond surety bond in the sum of Rs. 5,000/- with one surety of the like amount. During the period of probation, he shall maintain peace and be of good behaviour. In case, he violates any terms of the bond, he shall appear before the learned C.J.M. to receive the sentence. 7. With the above modification in the matter of sentence, the revision stands disposed of. Copy of the order be sent to CJM, Karnal, who shall send a notice to the petitioner and on receipt of the notice, the petitioner shall execute the bail bond surety bond within one month from the receipt of such notice. If the petitioner does not execute the bail bond surety bond as directed above, the revision shall be deemed to have been dismissed for all intents and purposes. Order accordingly.