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2009 DIGILAW 314 (PNJ)

Satnam Singh v. State Of Punjab

2009-02-11

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This revision petition is directed against the judgment dated 11.08.2001, rendered by the Court of Sessions Judge, Ferozepur, vide which it dismissed the appeal against the judgment of conviction dated 08.07.1998, rendered by the Court of Additional Chief Judicial Magistrate, Ferozepur, convicting the accused (now revision petitioner), for the offence punishable under Section 61(l)(c) of the Punjab Excise Act and awarding sentence to undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 5000/-, in default of payment of fine, to undergo further rigorous imprisonment for three months. 2. The facts, in brief, are that on 02.05.1993 Tara Singh, Head Constable accompanied by other Police officials, was present, in the area of village Dulchike, in connection with patrol duty, when a secret information was received that the accused was indulging in distilling illicit liquor. It was further informed by the secret informer, that at that time he was distilling illicit liquor, by setting up a working still on the southern bank of river Satluj, in the area of village Alike and could be apprehended, if raid was conducted. On receipt of this information, ruqa Ex.PA was sent to the Police Station, on the basis whereof, FIP. Ex.PA/1, was registered. Thereafter, the Police party headed by Tara Singh, Head Constable, raided the aforesaid place and found the accused distilling illicit liquor by means of working still. The working still was dismantled and cooled down. The components thereof were Ex.P1 to Ex.P8.180 Mls illicit liquor as sample, out of the distilled Liquor, contained in the receiver tin (Pipa) was taken. The aforesaid liquor from the receiver tin (Pipa) after drawing the sample was transferred into a can, which came to be 10 bottles. The remaining illicit liquor, on measurement, came to be 50 bottles. The samples were also taken therefrom. The samples, the aforesaid illicit liquor, the drum boiler containing 80 Kgs of lahan partially distilled and fit for further distillation as also two other drums containing about 150 Kgs each lahan, lying near the still, were duly sealed. All the aforesaid articles were taken into possession, vide separate recovery memo Ex.PB. The accused was arrested. The statements of the witnesses were recorded. 3. All the aforesaid articles were taken into possession, vide separate recovery memo Ex.PB. The accused was arrested. The statements of the witnesses were recorded. 3. On 03.05.1993, Tarlochan Singh, Excise Inspector tested the contents of the drum boiler as also of the two other drums in the Police Station and gave test report Ex.PA to the effect that the same were the mixture of gur, water and kikar barks. It was further reported by him that it was lahan in. a fermented condition, partially distilled, qua the drum boiler and fit for further distillation. Vide report Ex.PF, the Assistant Chemical Examiner Bathinda, declared the contents of the sample nips, to be of illicit liquor. After the completion of investigation, he was challaned. 4. On his appearance, in the Court, the accused was supplied the Copies of documents, relied upon by the prosecution. Charge under Section 61(l)(c) of the Punjab Excise Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case, examined Tarlochan Singh, Excise Inspector, (PW-1), who tested the contents of the drum boiler and two other drums, and gave his report Ex.PA, referred to above, Tara Singh, Head Constable, the Investigating Officer, (PW-2), who deposed with regard to the recovery of the components of working still, illicit liquor, the drum boiler and two other drums, containing lahan in a fermented condition, partially distilled qua the drum boiler and fit for distillation qua the two other drums, from the accused, Parminderjit Singh, Head Constable, (PW-3), a witness to the recovery, Sandeep Kumar, Constable, (PW-4) and Kartar Singh, Moharrir Head Constable, Report, Ex.PE, of the Assistant Chemical Examiner was tendered by the Assistant Public Prosecutor into evidence, and thereafter, he closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. However, no defence evidence was led by the accused. 7. The trial Court convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, against the judgment of trial Court, an appeal was preferred, by the accused-appellant, which was dismissed vide order dated 11.08.2001, by the Sessions Judge, Ferozepur. 9. Still dis-satisfied, the instant revision-petition was filed. 10. However, no defence evidence was led by the accused. 7. The trial Court convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, against the judgment of trial Court, an appeal was preferred, by the accused-appellant, which was dismissed vide order dated 11.08.2001, by the Sessions Judge, Ferozepur. 9. Still dis-satisfied, the instant revision-petition was filed. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the revision Petitioner, submitted that the appeal was decided, no doubt, on merits, by the Appellate Court, but in the absence of the accused (now revision-petitioner) or his Counsel. He further submitted that, in case, the appellant was absent, and his Counsel had not put in appearance, it was the duty of the Appellate Court to appoint an Amicus-curiae and then decide the appeal. He further submitted that the appellant was, thus, condemned unheard. He further submitted that the procedure, thus, adopted by the Appellate Court, in deeiding the appeal, was not in accordance with the provisions of law, and as such, was illegal. He further submitted that this fact is sufficient, to set aside the judgments of the Courts below. The submission of the Counsel for the revision-petitioner, in this regard, does not appear to be correct. A perusal of the judgment of the Appellate Court clearly goes to show that the appellant, during the pendency of the appeal, absented and thereafter, his presence could not be procured. Even his Counsel did not put in appearance, at the time of hearing the appeal. Under these circumstances, there was no alternative with the Appellate Court, than to decide the appeal, on merits, after going through the evidence, record of the case and the lower Court judgment. In Dharampal v. State of U.P., 2008(1) Law Herald 225 (SC), in similar circumstances, when the appeal against the judgment of conviction and the order of sentence, for the offence, punishable under Section 302 IPC, was fixed for regular hearing, before the Allahabad High Court, neither the appellant, nor his Counsel, put in appearance. In these circumstances, the appeal was decided by the High Court, after perusing the records, on merits. In these circumstances, the appeal was decided by the High Court, after perusing the records, on merits. It was held by the Apex Court, that the High Court in such an event, could look into the records and the other material placed thereon, including the judgment of the trial Court, and thereafter decide the appeal on merits, which would be due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure, in disposing of criminal appeals. However, it was further held, inthe said case, that the Appellate Court, cannot dismiss the appeal, in default. Similar, principle of law was laid down, in Bani Singh v. State of U.P., 1996(3) RCR(Criminal) 201 : 1996(4) SCC 720, a case decided by a three Judge Bench of the Apex Court. In view of the principle of law, laid down in the aforesaid cases, in my opinion, the Appellate Court was completely justified in deciding e appeal, on merits, in the absence of the appellant or his Counsel. The Appellate Court, therefore, did not transgress any provision of law. The procedure adopted the Appellate Court, therefore, could not be said to be, in any way, illegal, not could be said that the appellant was condemned unheard. The submission of the Counsel for the revision- petitioner, in this regard, being without merit, must fail, and the same stands rejected. 12. The careful perusal of the evidence and the record of the case clearly reveals that both the Courts below recorded a concurrent finding on the basis of cogent, convincing, reliable and trust-worthy evidence cf Tara Singh, Head Constable, (PW-2) and Parminderjit Singh, Head Constable, (PW-3), report Ex.PA of the Excise Inspector and report Ex.PE of the Assistant Chemical Examiner, that the accused was found distilling liquor by setting up working still and that 60 bottles of illicit liquor ; so distilled, along- with implements of working still as also three drams, containing lahan, were recovered. It is settled principle of law that while exercising revisional jurisdiction, this Court cannot revaluate and re-appreciate the evidence, until and unless it comes to the conclusion that the Courts below, committed an illegality in the conduct of trial or the procedure adopted, was illegal, or the findings recorded were perverse resulting into miscarriage of justice. It is settled principle of law that while exercising revisional jurisdiction, this Court cannot revaluate and re-appreciate the evidence, until and unless it comes to the conclusion that the Courts below, committed an illegality in the conduct of trial or the procedure adopted, was illegal, or the findings recorded were perverse resulting into miscarriage of justice. In the instant case, the Courts below conducted the proceedings, in accordance with law, and the findings recorded by them are no perverse. The Courts below, thus, were right in recording the finding that the accused (now revision-petitioner) was guilty for the commission of offence under Section 61(l)(c) of the Punjab Excise Act. In these circumstances, the concurrent findings recorded by the Courts below, deserve to be upheld. 13. The Counsel for the revision petitioner, however, submitted that since the recovery was effected from the revision-petitioner on 02.05.1993, and he has already been facing the criminal proceedings, for the last more than 15 years, the benefit of the provisions of the Probation of Offenders Act, be granted to him. The submission of the Counsel for the revision-petitioner, in this regard, does not appear to be correct. The mere fact that the revision petitioner, has been facing the criminal proceedings for the last more than 15 years in itself, is not sufficient to grant him the benefit of the provisions of Section 4 of the Probation of Offenders Act. The revision-petitioner was found distilling illicit liquor by way of setting up working still. He was also found in possession of 60 bottles of illicit liquor, which had been distilled by him, along with three drums, containing lahan in a fermented condition. The lahan in the drum boiler was found partially distilled and fit for further distillation. It means that the revision-petitioner was dealing in the business of illicit liquor, on commercial basis. Thus, he was not only playing with the valuable lives of the people, but also causing loss to the State exchequer. Under these circumstances, he cannot be granted the benefit of the provisions of Section 4 oftne Probation of Offenders Act. The submission of the Counsel for the revision-petitioner, being without merit, is rejected. 14. No other point, was urged, by the Counsel for the parties. 15. For the reasons recorded, herein before, finding no merit in the revision petition, the same stands dismissed. The submission of the Counsel for the revision-petitioner, being without merit, is rejected. 14. No other point, was urged, by the Counsel for the parties. 15. For the reasons recorded, herein before, finding no merit in the revision petition, the same stands dismissed. The judgment dated 11.08.2001, rendered by the Court of Sessions Judge, Ferozepur, and the judgment dated 08.07.1998, rendered by the Court of Additional Chief Judicial Magistrate, Ferozepur, are upheld. If the revision petitioner is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Ferozepur, is directed to take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report immediately thereafter.