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2010 DIGILAW 3208 (PNJ)

Sushil Kumar v. State Of Haryana

2010-12-02

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. The accused-petitioner (herein referred as the accused) has challenged the legality, propriety and correctness of the judgment dated 13.10.2005, passed by Sessions Judge, Rewari, dismissing his appeal against the judgment dated 20/21.08.2001, passed by Judicial Magistrate Ist Class, Rewari, convicting and sentencing him to undergo rigorous imprisonment for a period of 1= years and to pay a fine of Rs. 2,000/- under Section 61(1)(a) of the Punjab Excise Act, 1914 (for brevity `the Act). 2. In nutshell, the allegations are that on 26.05.1996 when Head Constable Jawahar Singh alongwith other police officials was present on the turning of village Alawalpur, the accused while driving Maruti Car bearing registration No. DL-5C-6686 was seen coming. When he was signalled to stop, he tried to turn his car towards village Bhatsana but he was apprehended. Head Constable Jawahar Singh (herein referred as `the Investigating Officer), on search of the car, recovered three rubber tubes, containing illicit liquor. Out of the said liquor, a nip as sample was separated from each tube. On measurement of the remaining liquor, each tube was found to contain 99-3/4 bottles. Ruqa was sent to the police station on the basis of which case was registered and investigated. 3. On submission of the report under Section 173 Cr.P.C. in the Court, the accused was charged for the aforesaid offences to which he pleaded not guilty and claimed trial. 4. The prosecution in order to substantiate the charges examined Vijay Pal (PW-1), Constable Raj Pat (PW-2) and Head Constable Jawahar Singh (PW-3), Some documents were also tendered in evidence. 5. When examined under Section 313 Cr.P.C., the accused denied all the allegations levelled against him and pleaded his false implication. However, no evidence was led in defence. 6. The trial ended in conviction. The appeal, preferred by him was also dismissed. 7. Admittedly, the case property including the tubes in which the liquor was contained, were not produced in the Court; no such evidence, showing that the case property was deposited in the malkhana and the same was disposed off or destroyed at any point of time before producing the same in the Court, has been led and no explanation has comeforth as to why the case property was not produced. The trial Court refused to rely upon the judgment delivered by this Court in case Suba Singh v. State of Punjab, 1984(1) RCR (Criminal) 429 without disclosing any plausible reasons. In Suba Singhs case (supra), his Lordship observed as under :- "Counsel for the State relied upon Balraj Singh v. State of Punjab, 1982 C.L.J. (C & Cr.) 222. Even the Courts below have also based their conviction after relying upon the observations made in this authority but the courts below failed to appreciate the observations of the Division Bench in para 15 of this judgment which are as follows :- "I must, however, sound a strong note of caution that the view I am inclined to take must not be misunderstood to mean as if the production of the case property is to be dispensed with at the trial. Equally if some thing vital turns on it, the accused can insist upon its production and the refusal to do so would be a factor for adverse notice against the prosecution by the Court." Thus, the aforesaid authority is of no help to the prosecution. There is no quarrel with the principles of law as laid down in the aforesaid authority. The only observation is that the case property is a sort of corroborative evidence and that mere non-production of part or the whole of the case property would not by itself vitiate the subsequent conviction of the accused but in the same authority it is observed that the principle must not be misunderstood to mean as if the production of the case property is to be dispensed with at the trial and normally it is the duty of the prosecution to do so and in the present case as observed earlier the prosecution has not given any explanation as to how the liquor disappeared from the tubes. It seems that the aforesaid authority is being misused by the prosecution and the courts below in the present case without reading the whole of the judgment have blindly convicted the petitioner. The principle of law as laid down in the aforesaid authority is to be applied cautiously in the facts and circumstances of each case if there is plausible evidence that the case property could not be produced or was destroyed. The principle of law as laid down in the aforesaid authority is to be applied cautiously in the facts and circumstances of each case if there is plausible evidence that the case property could not be produced or was destroyed. In the absence of any plausible explanation for non-production of the case property benefit must be given to the accused." 8. The instant case is on a better footing. In this case, neither the liquor nor the tubes, which are said to contain liquor, have been produced in the Court. No plausible explanation has come forth as to where the case property i.e. liquor and the tubes in which the liquor was contained, have disappeared. The case is based on the testimonies of two official witnesses. Had the case property been produced then the testimonies of official witnesses could find corroboration. The First Appellate Court, without scrutinising the judgment passed by the trial Court, has blindly stamped it, which could not be expected from the judicial officer of the status of a Sessions Judge. Even no rapat roznamcha has been produced in the Court in order to show that the case property was ever deposited by the Investigating Officer in the Malkhana. Similarly in case Singara Singh v. State of Haryana 1997 (2) RCR (Criminal) 783 both the Courts below had convicted the accused while holding that the non-production of the case property will not prove fatal but his lordship observed that merely because the case is supported by the official witnesses will not put an end to the matter and further observed as under :- "Preserving a case property and producing it during the course of trial is of utmost importance. If the case property is perishable, the order of the court can be obtained. Otherwise, an attempt must be made to keep the property in safe custody. It is a valuable piece of evidence. The Punjab Police Rules as applicable to the State of Haryana provide the same guidelines. Under Rule 22.15, it is the responsibility of the officer-incharge of the police station to examine the property twice a month because he is supposed to be incharge of the same. Rule 22.15 reads as under :- "22.15. It is a valuable piece of evidence. The Punjab Police Rules as applicable to the State of Haryana provide the same guidelines. Under Rule 22.15, it is the responsibility of the officer-incharge of the police station to examine the property twice a month because he is supposed to be incharge of the same. Rule 22.15 reads as under :- "22.15. Public Property -Subject to the orders and responsibility of the officer-in-charge of the police station, the station clerk shall be considered to be in charge of all public property including money and case property in his station house. Every officer in charge of the station shall examine the property at least twice a month and shall report in the following Mondays diary that he has done so. If property is found to be incomplete or to be in any way damaged, he shall add to his report the names of the persons responsible for the loss or damage." He shall also see that the property in connection with a case is expeditiously disposed of according to magisterial orders on the conclusion of the case. All property shall be examined by officers-in-charge of police stations on receiving and handing over charge and by station clerks on relief. All damages and shortages must then be carefully noted and reported to the Superintendent of Police. 9. Furthermore, under Rule 27.17, It is the duty of the prosecuting agency to maintain the said property till such time the final orders are passed. Sub-Rule (1) of Rule 27.17 is material and reads as under :- "27,17(1) At headquarters the head of the prosecuting agency, with the assistance of his staff, shall take charge of weapons, articles and property connected with cases sent for trial and shall be responsible for their safe custody until the case is decided. When final orders are passed in the case, such weapons, articles and property shall, if not made over to the owner, be made over to the sheriff." Lastly his Lordship observed as under :- Reverting back to the facts of the present case, one must look at the explanation offered. It is not that the case property had been stolen. Merely stating that it had leaked will not satisfy a trained mind. There is nothing on the record to indicate that an entry was made in the roznamcha when leakage was noticed. It is not that the case property had been stolen. Merely stating that it had leaked will not satisfy a trained mind. There is nothing on the record to indicate that an entry was made in the roznamcha when leakage was noticed. Even if no such entry was made, it should have been brought to the notice of the Court. Such a huge quantity of lahan could not vanish in to thin air. Had the case property been produced, the witnesses had to identify as to what was recovered. A prejudice necessarily is caused to the accused-petitioner because in a given set of circumstances, he could seek a further taking of the sample. The defence counsel rightly argued that prejudice had been caused. When such is the investigation and nature of material forthcoming, it would be unsafe further for rely on the testimonies of the official witnesses. The petitioner is entitled to an acquittal." 10 In the instant case also, MHC with whom the case property was allegedly entrusted, has also not been examined. No report Roznamcha showing that case property was deposited in the malkhana has been proved. Even Head Constable Jawahar Singh (PW-3) has not stated that when he had deposited the case property in the malkhana whereas PW2 is silent if it was deposited in the malkahana or not. Under these circumstances, the recovery of illicit liquor from the possession of the accused cannot be said to be established beyond reasonable doubt. The aforesaid aspects were not taken note of by both the Courts below while recording the findings of the conviction against the accused. Resultantly, interference at my end has become inevitable. 11. For the aforesaid reasons, this petition is accepted; impugned judgment is set aside and the petitioner is acquitted of the charge framed against him. He is directed to be set at liberty forthwith. Bail bond and surety bond, furnished by him, stand discharged. Fine, if any deposited, be refunded.