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2010 DIGILAW 2861 (PNJ)

Shishpal v. State Of Haryana

2010-10-07

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. The instant case is an extreme example of poor investigation. The trial court vide judgment dated 9.8.2002 convicted the accusedpetitioners (herein referred as, the accused) under Section 61 (1) (a) of the Punjab Excise Act, 1914 (for brevity, the Act) and sentenced them to undergo rigorous imprisonment for six months and to pay fine of Rs. 1000/- each. The appeal preferred by them was dismissed vide judgment dated 7.10.2004 passed by the learned Additional Sessions Judge, Faridabad. 2. On 5.7.1998, ASI Hem Raj along with other police officials was present at Karman Border where UGC Ram Pal and other police officials were already present in Government Jeep No. HR5A-7557. In the meantime, the accused came in a maruti car bearing registration No. DNJ- 5200 from the side of Kosi. When they were signalled to stop, the accused, who were three in number stopped the vehicle and the van was loaded with liquor. The accused were identified as Keshav, Shish Pal and Tulsi Dass. All of them were apprehended. On search of the van, 30 boxes of pouches containing 100 pouches each, 8 boxes of Indian made foreign liquor, each box containing 12 bottles of Officers Choice were recovered. Out of the bags so recovered, one pouch of liquor was taken out as sample and from the boxes of liquor, one bottle was taken out and samples as well as bulk liquor, pouch bags and liquor boxes were sealed with the seal bearing impression "HR". The van was taken into possession. The accused were arrested. On completion of the investigation, challan was presented in the Court. 3. They were charged under Section 61 (1) (a) of the Act to which they pleaded not guilty and opted to contest. 4. The prosecution in order to substantiate the charges examined ASI Rishi Raj (PW 1), ASI Ram Dayal (PW 2), ASI Hem Raj (PW 3) and ASI Jawahar Singh (PW 4). Further the prosecution tendered the affidavit of ASI Ram Dayal Ex. PW 2/A and report of the Chemical Examiner Ex. PX. 5. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. 6. The trial ended in conviction. Their appeal also failed. Accused Tulsi Ram has not filed the revision petition. 7. PW 2/A and report of the Chemical Examiner Ex. PX. 5. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. 6. The trial ended in conviction. Their appeal also failed. Accused Tulsi Ram has not filed the revision petition. 7. While assailing the impugned judgment, learned counsel has urged that the conviction of the accused is based on the testimonies of two official witnesses which do not find any corroboration from any independent source. No independent witness was joined to attest the recovery memo. Despite sufficient opportunity available to the police, no effort was made to associate the independent witness. The case property was not produced in the court. The testimonies of the witnesses is very shaky and unreliable. No proper representative sample was sent to the Public Analyst for ascertaining the boxes as well as pouches contained illicit liquor. 8. To the contrary, the Deputy Advocate General, Haryana, has not supported the judgment while urging that that official witnesses are at par with the independent witnesses and they are quire consistent in their statements qua time, place and the manner of the occurrence. As such, he has prayed for dismissal of the petition. 9. Heard, having examined the records and weighed the evidence, the prosecution case appears to have not been proved beyond reasonable doubt. The occurrence took place on 5.7.1998 at about 5.00 p.m. The place of recovery was a thorough fare and there was no dearth of the witnesses to be associated. It has been admitted by ASI Rishi Raj (PW 1) that number of vehicles were passing by their side, but, none of the independent witness was joined, much less no effort was made by the Investigating Officer to associate the independent witness. No doubt, non examination of the independent witness could not be a valid ground to acquit the accused but the law and prudence requires corroboration of the official witnesses from some independent source much less Investigating Officer was bound to make some efforts to join independent witness. Though the witnesses have stated that the people were showing their compulsion to join them but the Investigating Officer did not record their statements or proceeded against them. As such, to say that they made earnest efforts to join the independent witnesses is nothing but a farce. Though the witnesses have stated that the people were showing their compulsion to join them but the Investigating Officer did not record their statements or proceeded against them. As such, to say that they made earnest efforts to join the independent witnesses is nothing but a farce. It would be significant to mention further that since 3000 pouches and 96 bottles were allegedly recovered from the accused but the Investigating Officer appears to have deviated from his duty and did not take any sample from all the pouches and the bottles with a purpose to know whether the contents of the aforesaid articles were containing liquor. ASI Rishi Raj (PW 1) admits that neither they drew any sample contained in 29 bags nor any sample was drawn from 8 boxes of illicit liquors. Similarly, ASI Hem Raj (PW 3) admits that no sample was drawn from 29 bags, therefore, he cannot say as to if those pouches contained liquor. Needless to discuss any other evidence, the evidence of ASI Ram Dayal (PW 2) is necessary to refer to expose the conduct of the Investigating Officer. ASI Ram Dayal (PW 2) states that on 20.6.1998, one bottle of Officers Choice and one pouch allegedly containing liquor bearing impression "HR" were sent to the Chemical Examiner through C. Khurshid Ahmed No. 130. All this goes to show that neither sample was drawn from other pouches and bottles nor was sent to the Chemical Examiner in order to know the contents of those 95 bottles as well as 2999 pouches which were allegedly recovered by the Investigating Officer from the accused. Any way, again the link evidence is missing in the case. C. Khurshid Ahmed who had taken the samples has not been examined. The absence of providing opportunity to the accused to cross examine C. Khurshid Ahmed, they could certainly have to be said to have been prejudiced. 10. Further, the Investigating Officer ASI Hem Raj has stated that he could not tell in whose custody the liquor remained. The report of the Chemical Examiner also destroys the prosecution case. As per report Ex. PX, one bottle and one pouch of sample were sent to the Chemical Examiner on 15.7.1995. 10. Further, the Investigating Officer ASI Hem Raj has stated that he could not tell in whose custody the liquor remained. The report of the Chemical Examiner also destroys the prosecution case. As per report Ex. PX, one bottle and one pouch of sample were sent to the Chemical Examiner on 15.7.1995. The C.F.S.L. form does not disclose as to what was the quantity of the bottle and the pouch and it also does not contain the name of the constable through whom the pouch was sent. The quantity of the bottle as well as of the pouch are also not recorded in the C.F.S.L. form. There is no mention of sample seal which could be on various properties which were taken into possession by ASI Hem Raj, therefore, in the absence of any specific mark over the bottles and the pouches, could not say that the case property pertained to the case in hand. All these circumstances go to show that the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. The conviction recorded by both the courts below appears to have been recorded on mis-appreciation of the evidence resulting in complete failure of justice, therefore, interference at my end has become inevitable. 11. In the wake of aforesaid discussions, this revision petition is accepted, impugned judgment is set aside, the accused are acquitted of the charges framed against them and they are directed to be set at liberty forthwith. Bail bond and surety bond furnished by them stand discharged. Fine, if any deposited by them, be refunded. Copy of the judgment be sent to the Director General of Police, Haryana for taking action against ASI Hem Raj for conducting the poor investigation.