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Himachal Pradesh High Court · body

2003 DIGILAW 72 (HP)

JAGDISH RAJ v. STATE OF H. P.

2003-04-04

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This revision petition is directed against the judgment dated 2.2.2001 passed by the learned Additional Sessions Judge (1), Kangra at Dharamshala whereby the appeal of the petitioner/accused (hereafter referred to as the accused) against the judgment dated 1.8.2000 passed by the learned Additional Chief Judicial Magistrate, Nurpur convicting the accused under Section 61(l)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh (hereafter referred to as the Act) and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs. 3,000 and in default of payment of fine to undergo further simple imprisonment for one month has been dismissed. 2. Brief facts leading to the presentation of this petition are as follows: On 9.7.1992 HC Ranjit Singh, Investigating Officer (PW-4), alongwith other police officials in connection with usual Nakabandi, was present at Toki near Railway Crossing, the accused while carrying a Cany came there. On suspicion his search was conducted and the Cany was checked. It was found that the contents of the Cany was illicit liquor. Therefore, two samples of the liquor were taken and the samples and remaining liquor were sealed. Ruka Ext. PW-4/A was prepared and sent for registration of case on the basis of which FIR Ext. PW-4/B under Section 61(l)(a) of the Act was registered at Police Station, Indora. One of the sample nips was sent to the Chemical Examiner Kandaghat who vide his report Ext. PA opined that the sample was of illicit liquor containing 47.1 proof alcohol strength. The concerned officer incharge of the police station submitted the charge-sheet against the accused against whom a charge was framed by the learned trial Magistrate under Section 61(l)(a) of the Act to which he pleaded not guilty. 3. To prove the charge against the accused, prosecution examined four witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied the case of the prosecution as a whole. On consideration of the material on record, the learned trial Magistrate vide judgment dated 17.8.1997 convicted the accused under Section 61(l)(a) of the Act and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 3,000. On consideration of the material on record, the learned trial Magistrate vide judgment dated 17.8.1997 convicted the accused under Section 61(l)(a) of the Act and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 3,000. Being aggrieved, the accused preferred an appeal which was heard by the learned Additional Sessions Judge (1) Kangra at Dharamshala and vide his judgment dated 5.5.2000 the conviction and sentence awarded to the accused was set aside and the case was remanded to the trial Court with a direction to record the statement of the accused under Section 313 Cr.P.C. afresh in accordance with law as in the statement earlier recorded by the learned trial Magistrate all material incriminating circumstances were not put to the accused. After remand the statement of the accused under Section 313 Cr.P.C. was recorded afresh and in the said statement also the accused denied the prosecution case as a whole. After hearing the parties, the learned trial Magistrate held the accused guilty and convited and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 3,000 vide judgment dated 1.8.2000. Being aggrieved, the accused preferred an appeal which was dismissed by the learned Additional Sessions Judge, Kangra at Dharamshala by the impugned judgment. Hence, this petition by the accused. 4. I have heard the learned Counsel for the petitioner and the learned Additional Advocate General for the respondent/State and have also gone through the records. 5. It may be pointed out at the very outset that there are concurrent findings of the two courts below that the accused was found in conscious possession of Cany Ext. P-l containing illicit liquor. It is well settled that though the revisional powers of the High Court are very wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on a point of law leading to grave miscarriage of justice. Such powers can be exercised only for correcting the injustice and not the illegality which may not go to the root of the case. The concurrent findings recorded by the trial Court and the appellate Court are ordinarily not to be interfered with even if a view other than the one taken by such courts is possible. 6. Such powers can be exercised only for correcting the injustice and not the illegality which may not go to the root of the case. The concurrent findings recorded by the trial Court and the appellate Court are ordinarily not to be interfered with even if a view other than the one taken by such courts is possible. 6. In case Jaswant Rai and others v. State of H.R, 2000 (2) SLJ 1822, while dealing with the scope of the revisionary powers of the High Court, this Court held as under : "9. The accused have been held guilty of the offence punishable under Section 332 of the Indian Penal Code by the trial Court and under Section 332 read with Section 34 of the Indian Penal Code by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. In such a situation this Court has to necessarily examine the matter keeping in view the well settled proposition of law that though the revisional powers of this Court are very wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on point of law leading to grave miscarriage of justice. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Thus, merely because a view other than one taken by the Courts below is possible, the findings recorded by such Courts are not to be disturbed." It is in view of the above settled position in law that the matter in hand has to be examined. 7. It was contended by the learned Counsel for the accused that the police party while proceeding from the police station for the purpose of laying Naka had not joined any independent witnesses in the party though it could have been conveniently done. The apprehension of the accused, his search and the alleged recovery of illicit liquor from his possession has not been witnessed by any independent witnesses and the statements of the police officials about such apprehension, search and seizure, therefore, could not be relied to convict the accused. 8. The apprehension of the accused, his search and the alleged recovery of illicit liquor from his possession has not been witnessed by any independent witnesses and the statements of the police officials about such apprehension, search and seizure, therefore, could not be relied to convict the accused. 8. It is not the requirement of law that when a police party leaves police station on patrol duty or for the purpose of crime detection it has to join independent witnesses in the party, therefore, the contention that while leaving the police station the police party has not included independent witnesses in the party is of no help to the accused. 9. It is not the case of either of the parties that the police party had prior information about the accused being in possession of illicit liquor. As per the contents of Ruka Ext. PW-4/C while the police was on normal Nakabandi duty near Railway Crossing, they encountered the accused unexpectedly when he was carrying plastic Cany Ext. P-l and it was on suspicion that the accused was stopped. The content of the Cany was checked and further process followed. Thus, the recovery of illicit liquor from the possession of the accused was a chance recovery and not a preplanned search. In these circumstances, even the contention that no independent witness has witnessed the search and recovery is of no help to the accused. 10. There is no proposition of law to support the contention that statements of police officials should not be believed and relied simply because they are police officials. It is, however, rule of caution that the statements of the police officials in a criminal case must be read with care and caution. In case such statements are found trustworthy and confidence inspiring a conviction can be based on such statements. It is only in a case where such statements are found suspicious, unnatural, improbable or suffer from any other blemish and are not corroborated by any other independent evidence that Court may refuse to act on such statements. The statements of PW-1, who is witness of apprehension of the accused, his search and seizure of the container of illicit liquor Ext. P-l and PW-4 who conducted the seizure and search are quite natural, cogent and confidence inspiring. The statements of PW-1, who is witness of apprehension of the accused, his search and seizure of the container of illicit liquor Ext. P-l and PW-4 who conducted the seizure and search are quite natural, cogent and confidence inspiring. There is nothing in their statements including their cross-examination to suggest that for any reason whatsoever they had falsely implicated the accused in the commission of the offence. They have fully supported the prosecution version regarding apprehension of accused, search and recovery of the container Ext. P-l containing illicit liquor from the possession of the accused. Therefore, the contention that the accused could not be held to be in possession of the illicit liquor merely on the statements of these two police officials is not sustainable. 11. It was further contended by the learned Counsel for the accused that the illicit liquor was allegedly recovered from the accused on 9.7.1997, however, the sample sent for chemical analysis on 10.8.1997 and was delivered at the laboratory on 12.10.1997, therefore, according to the learned Counsel for the accused the delay in sending the sample to the laboratory is fatal to the prosecution case inasmuch as the possibility of tampering with the sample cannot be ruled out. 12. It is the case of the prosecution itself that the illicit liquor was recovered on 9.7.1997, the sample was handed over by Joginder Singh (PW-3) to PW-1 on 10.8.1997 for being delivered in the CTL Kandaghat where it was delivered on 12.8.1997. PW-1 has stated that he had delivered the sample at the aforesaid lab in its proper condition. It has not been suggested to him that while the sample remained in his possession he tampered therewith in any manner. He has not been cross examined on this score at all. Similarly PW-3 has stated that till the case property remained in his possession, it was not tampered with by anyone. It has not been suggested even to this witness that the case property while in his possession was tampered with in any manner. In fact, this witness has not been cross-examined at all. A perusal of the report of the Chemical Examiner CTL Kandaghat Ext. PA reveals that the seals of the sample when it was received in the lab were found intact and tallied with the sample seal. In fact, this witness has not been cross-examined at all. A perusal of the report of the Chemical Examiner CTL Kandaghat Ext. PA reveals that the seals of the sample when it was received in the lab were found intact and tallied with the sample seal. Therefore, though there had been a delay of about one month in sending the sample to the laboratory but there is nothing on the record to suggest that the case property was tampered with in any manner. Therefore, the mere delay in sending the sample to the lab is not fatal to the case of the prosecution. 13. The learned Counsel for the accused to support his contention that the delay is fatal to the case of the prosecution has relied on Ramesh and another v. State of Haryana, 1998 (1) Crimes 566 P&H. In this case 5 Kg. opium was recovered from the accused therein and there was delay of 17 days in sending the sample to the Chemical Examiner. The accused were finally acquitted. It may be pointed out that in the said case the delay of 17 days in sending the samples to the Chemical Examiner was not the sole reason for acquitting the accused. It was not put to the accused persons in their statements under Section 313 Cr.P.C. that the case property was kept in the safe custody. Secondly, the samples taken was of 100 grams whereas the sample which was sent to the FSL was only of 80 grams. In view of the these lapses, the Punjab and Haryana High Court found that there was no reliable link evidence, therefore, acquitted the accused persons. Thus, the authority relied by the learned Counsel does not support his case that mere delay in sending the samples to the laboratory is fatal to the case of the prosecution. 14. It was next contended for the accused that since the accused was apprehended, searched and recovery effected by PW-4, who prepared the Ruka, therefore, being complainant investigation of the case by him is fatal to the case of the prosecution. In support of his contention, the learned Counsel relied on Megha Singh v. State of Haryana, AIR 1995 SC 2339, wherein the Apex Court held as under : "4....We have also noted another disturbing feature in this case. In support of his contention, the learned Counsel relied on Megha Singh v. State of Haryana, AIR 1995 SC 2339, wherein the Apex Court held as under : "4....We have also noted another disturbing feature in this case. PW-3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal First Information Report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." 15. It is evident on a bare reading of the aforesaid para that the Apex Court has deprecated the practice of the complainant police officer investigating the case himself. However, it has not been held that such a lapse will invariably be fatal to the prosecution case. The effect of it may be that it may raise suspicion about the investigation being fair and impartial. Therefore, the lapse will not be ipso facto fatal to the prosecution case but it must be coupled with some other reasons which may raise the inference that the Investigating Officer who detected the offence and lodged the FIR has proceeded with the investigation in a manner which was unfair, unwarranted and illegal. As already stated hereinabove, there is nothing on the record to suggest that PW-4 or PW-1 were motivated by any extraneous considerations whatsoever to involve the accused in the commission of the offence or that PW-4 has conducted the investigation in a shady manner. Therefore, this contention is not sustainable. 16. In view of the above discussion and the material on record, the concurrent findings recorded by the Courts below that the accused was found in possession of illicit liquor do not suffer from any irregularity or illegality and are based on proper appreciation on the material on record and do not call for interference by this Court in exercise of its revisional powers. 17. 17. It was also contended by the learned counsel for the accused that when the accused was earlier convicted vide judgment dated 17.8.1997 he was sentenced to imprisonment till the rising of the Court and to pay fine of Rs. 3,000 only. However, after remand the learned trial Magistrate vide judgment dated 1.8.2000 imposed a higher sentence i.e. three months imprisonment instead of imprisonment till the rising of the Court for which there is no justification. 18. The facts, as submitted by the learned Counsel, are borne by the record. The case was remanded by the learned Additional Sessions Judge because the statement of the accused under Section 313 Cr.P.C. was not found to have been recorded in accordance with law. After the remand it was only the defect in the examination of the accused which was rectified. No fresh material justifying enhanced punishment to the accused had come on record. On the contrary, the fact remains that in August 1998 imposition of sentence of imprisonment till the rising of the Court and fine of Rs. 3,000 was found sufficient but after two years of the passing of the first judgment, simple imprisonment of three months instead of earlier imprisonment till the rising of the Court was awarded to the accused. There is no reason whatsoever for awarding this enhanced sentence of imprisonment. On the contrary, because of the pendency of the case for a further period of two years after its initial disposal passing of the enhanced imprisonment is wholly unjustified and unreasonable. Therefore, I am of the view that the sentence awarded to the accused calls for reduction. 19. As a result, while maintaining the conviction of the accused the enhanced sentence of imprisonment awarded to him is reduced to imprisonment till the rising of the Court and fine of Rs. 3,000. In default of payment of fine accused to undergo simple imprisonment for one month. The revision petition is disposed of in terms of the above orders. 20. The learned trial Magistrate to take appropriate steps to execute the sentence hereinabove imposed on the accused. Appeal dismissed.