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2003 DIGILAW 643 (PNJ)

Gurmail Singh v. State of Punjab

2003-05-05

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Gurmail Singh son of Gurbachan Singh and Banta Singh son of Lakha Singh, the present two petitioners were convicted by learned Judicial Magistrate Ist Class, Zira on 20.7.1990 under Section 61(1)(a) of the Punjab Excise Act (for short, "the Act") and were sentenced to undergo RI for a period of one year and to pay a fine of Rs. 1000/- each and in default of payment of fine to further undergo RI for two months each. Both the petitioners thereafter filed the appeal against the impugned judgment of conviction and sentence. The learned sessions Judge, Ferozepur vide impugned judgment dated 16.7.1991 set aside the order of the learned trial Court and sent back the case to the trial Court with the direction that the trial Court would receive the duly attested affidavit of Moharar Head Constable Sardul Singh and then decide the case on merits. Aggrieved by the impugned judgment of learned Sessions Judge, Ferozepur, the present petitioners have filed the revision petition. 2. In brief, the case of the prosecution is that on 5.5.87, the petitioners were coming in a car bearing No. PBX 6426 driven by Banta Singh and on suspicion it was stopped by the police party who were holding nakabandi. From the search of the car a tube containing illicit liquor was found under the feet of Gurmail Singh petitioner. A sample of the illicit liquor was drawn from the tube and after measuring the same it came to be 80 bottles. Both the petitioners were consequently booked under the Act. 3. I have heard Mr. Vinod Ghai, learned counsel for the petitioners and Mr. S.S. Gill, learned Assistant Advocate General, Punjab. 4. Mr. Ghai at the very outset has submitted that in the present case, the link evidence is missing as the affidavits Ex. PE and PF upon which the prosecution in relying are defective. He then contended that Ex. PF does not bear the seal of the Court which had attested it and as such it becomes inadmissible in the eyes of law and cannot be read into evidence. The conviction recorded by the trial Court is bad on this count alone. He has pointed out my attention towards para No. 2 of the impugned judgment of learned Sessions Judge, Ferozepur which reads as under :- "2. The conviction recorded by the trial Court is bad on this count alone. He has pointed out my attention towards para No. 2 of the impugned judgment of learned Sessions Judge, Ferozepur which reads as under :- "2. After hearing the learned counsel for the appellants and the learned Public Prosecutor and going through the record, I am of the considered view that this case has to be remanded to the lower court; therefore, I need not reproduce the facts of the case which have already been given in detail in the impugned judgment. A careful scrutiny of the record would show that during trial prosecution relied upon affidavits Ex. PE and Ex. PF. Affidavit Ex. PF does not bear the seal of the Court, which had attested it and as such this affidavit is rendered defective. It is well settled that any court is not expected to receive any evidence which is inadmissible to the eye of law. This being the position, affidavit Ex. PF being defective could not be received in evidence. If such an affidavit is received in evidence that would amount to missing of link evidence. As such, conviction could not be recorded against the accused persons. Therefore, the impugned judgment and order under appeal are set aside and the case is sent back to the court of Sh. G.S. Saran, Judicial Magistrate Ist Class, Zira, with a direction that he shall decide the case afresh within one month from the date of receipt of the file, after receiving duly attested affidavit of MHC Sardul Singh, now posted as ASI at P.S. Fazilka. Records be sent down." 5. Mr. Ghai argued with vehemence that since the learned Sessions Judge has observed that the affidavit Ex. PF was defective and the conviction could not be recorded against the petitioners, therefore, there was no justification with the lower Appellate Court for remanding the case back to decide it afresh. He, thus, prays for acquittal of both the petitioners. In support of his arguments, he had relied upon a judgment of this Court rendered in Ram Nath v. The State of Haryana, 2002(2) C.L.R. 303 . 6. On the other hand learned State counsel submits that the petitioners do not deserve acquittal and at the most the case can be sent back to the trial Court for deciding it afresh on merits. 7. 6. On the other hand learned State counsel submits that the petitioners do not deserve acquittal and at the most the case can be sent back to the trial Court for deciding it afresh on merits. 7. After hearing the rival contentions of both the parties, I find that there is force in the submissions made by the learned counsel for the petitioners. The occurrence relates to the year 1987. Learned Sessions Judge has observed in para No. 2 of its impugned judgment that affidavit Ex. PF is defective and as such the conviction cannot be recorded on this count as the affidavit becomes inadmissible in evidence. I, thus, do not find any justification in remanding the case back to the trial Court after a lapse of 16 years. In Ram Naths case (supra) the trial Court had not put the incriminating evidence to the accused during his examination under section 313 Criminal Procedure Code The appellate Court had remanded the case to the trial Court. As the petitioner had suffered the agony of trial of 16 years, the order of the learned appellate Court remanding the case for fresh trial was set aside by this Court and the petitioner was consequently acquitted. 8. Taking into consideration the facts and circumstances of the present case, the revision petition is allowed, the judgment of the learned Sessions Judge, Ferozepur dated 16.7.1991 is set aside and the petitioners stand acquitted of the offence with which they were charged. Revision allowed.