Punjab-Haryana High Court
Balwinder Singh @ Binda vs State Of Punjab on 4 September, 2023
Neutral Citation No:=2023:PHHC:116335
2023:PHHC:116335
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
312
CRR-479-2008
Date of decision: 04.09.2023
Balwinder Singh alias Binda .....Petitioner
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Present : Mr. Ishan Singh Conner, Advocate as Amicus Curiae
for the petitioner.
Mr. Amit Rana, Sr. DAG, Punjab.
****
MANJARI NEHRU KAUL, J. (ORAL)
1. The petitioner is assailing the judgment and order dated
26.02.2008 passed by learned Additional Sessions Judge (Adhoc), Fast
Track Court, Jalandhar whereby the appeal preferred to impugned his
conviction, under Section 61(1)(c) of the Punjab Excise Act in case FIR
No.46 dated 05.04.2004 under Section 61(1)(c) of the Punjab Excise
Act registered at Police Station Kartarpur by learned Judicial
Magistrate 1st Class, Jalandhar, was dismissed.
2. The case as set up by the prosecution may be noticed as
thus. On 05.06.2004, police party headed by ASI Balkar Singh received
a secret information that the petitioner had been distilling illicit liquor
and if a raid is conducted he could be caught red handed. Pursuant to
the information received, a ruqa was sent to the police station and a
formal FIR recorded. An independent witness, namely, Sharaj, was
joined by the raiding party. When the raid was conducted at the
disclosed place, the petitioner was found at the spot distilling illicit
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liquor. The petitioner was apprehended and recovery of various articles
being used by him to distill illicit liquor was effected from the spot. A
sample of 180 mls from the recovered illicit liquor, was drawn in a nip.
Remaining illicit liquor on being measured was found to be 560 mls.
Besides this 12 kgs of lahan was also recovered from the spot. All the
recovered articles which also included a working still, were sealed
bearing impression "BS" and taken into police possession vide recovery
memo Ex.PB. After carrying out other formalities, the case property
was deposited with the MHC. On receipt of report of the chemical
examiner and after completion of investigation final report under
Section 173(2) of the Cr.P.C. (challan) was presented against the
petitioner. The petitioner was, thereafter, charged under Section
61(1)(c) of the Punjab Excise Act to which he pleaded not guilty and
claimed trial. In support of their case, the prosecution examined as
many as 05 witnesses including the investigating officer ASI Balkar
Singh, who stepped into the witness box as PW3. Though, independent
witness Sharaj was cited as a prosecution witness, however, he was
given up as having been won over. All the incriminating evidence was
put to the petitioner under Section 313 of the Cr.P.C. to which he
pleaded innocence. No evidence was produced by the petitioner in his
defence. On the basis of the evidence and other material on record, the
Trial Court convicted the petitioner and sentenced him as follows:-
Offence(s) u/s Period of sentence(s) Fine Period of
imposed sentence in
default of
payment of fine
61(1)(c) of the RI for 01 year `5,000/- RI for 03 months
Punjab Excise
Act
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3. Learned counsel for the petitioner has submitted that the
false implication of the petitioner in the case in hand was evident from
the fact that the independent witness Sharaj, who was in fact most
crucial witness, did not step into the witness box and was intentionally
given up by the prosecution as having been won over. Learned counsel
has still further argued that the version brought forth by the prosecution
was highly improbable as on the one hand the case set up was that the
petitioner was living in joint family set up in his house, from where the
alleged recovery of illicit liquor was effected, however, during his
deposition PW3 ASI Balkar Singh, feigned complete ignorance as to
who all were residing in the house of the petitioner which was raided by
him and from where the alleged recovery was effected. It was lastly
contended that the lahan allegedly effected from the house of the
petitioner was not even produced in the Court which created a big
question mark about the authenticity of the story brought forth by the
prosecution. Learned counsel while concluding his arguments, has
made an alternative prayer that in case this Court was not inclined to
accept the instant revision, a compassionate view be taken and the
petitioner be extended the benefit of probation as he had undergone the
agony of a protracted trial for more than 19 years.
4. Per contra, learned State counsel while opposing the prayer
and submissions made by the counsel opposite, has submitted that a
secret information was received by the police that the petitioner was
involved in distilling illicit liquor. After carrying out all the requisite
formalities and even joining an independent witness, house of the
petitioner was raided wherein not only illicit liquor was recovered but
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all other articles like working still, gas stove, a still belt containing a
plastic tube which was fitted with a bottle for collecting the illicit liquor
was also recovered. A sample nip of the recovered illicit liquor was
drawn vide various recovery memos, which were duly sealed, as per
procedure provided. The report received from the chemical examiner
(Ex.PD) showed that the samples contained illicit liquor. Learned State
counsel has submitted that independent witness Sharaj was joined by
the raiding party but since he had been won over, he was rightly given
up. Moreover, no enmity was alleged against the police officials to have
planted a false case upon the petitioner. Hence, the evidence of the
official witnesses could be safely relied upon who had supported the
case of the prosecution in its entirety.
5. I have heard learned counsel for the parties and perused the
relevant material on record.
6. This Court after perusing the impugned judgment and the
evidence led, does not find any force in the submissions made by the
learned counsel for the petitioner. This Court has no hesitation in
observing that the impugned judgement does not suffer from any
infirmity much less illegality and the learned Appellate Court rightly
upheld it.
7. As per the case of the prosecution, a secret information was
received qua the involvement of the petitioner in distilling illicit liquor.
Subsequently when the raid was carried in the house of the accused, he
was found distilling illicit liquor on a working still. 12 kgs of lahan
along with 740 mls of illicit liquor was recovered from the spot. All the
recovered articles which were being used to distill illicit liquor were
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duly sealed as per law, vide recovery memo (Ex.PB). The recovered
illicit liquor was then dispatched to the office of the chemical examiner
and was received in an intact condition as per the report of the chemical
examiner (Ex.PD). Still further, the report of the chemical examiner
(Ex.PD) was found positive qua the samples sent, which in turn lent
further corroboration to the case of the prosecution. All the prosecution
witnesses including PW3 ASI Balkar Singh while stepping into the
witness box corroborated the case of the prosecution in toto.
8. The contention of the learned counsel for the petitioner qua
non-examination of independent witness Sharaj is wholly bereft of any
merit. Rather, all requisite formalities were carried out pursuant to
receipt of secret information by the police party as not only Ruqa
(Ex.PE) was sent to the police station leading to the registration of the
FIR in question (Ex.PF) but even independent witness Sharaj was
joined by the raiding party. It was only during trial that the independent
witness was given up as having been won over. It is a matter of record
that the presence of independent witness Sharaj stands reflected in all
the documents, which were prepared at the time when the raid was
carried out and recoveries effected. Furthermore, merely because,
independent witness Sharaj, did not step into the witness box cannot be
a ground to discard prosecution version. A close scrutiny of the
evidence on record does not reveal any discrepancy, much less material,
in the case of the prosecution. It needs to be reiterated that the evidence
tendered by police officials can be kept at the same pedestal as that of
any other private witness, if the same comes across as reliable.
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9. No evidence was led by the petitioner in his defence, as to
why the police would have wanted to falsely implicate in the instant
case and shown a recovery of 740 mls of illicit liquor and 12 kgs of
lahan from his house.
10. Coming to the alternate prayer made by the counsel for the
petitioner that a compassionate view be taken and the petitioner be
released on probation. cannot be accepted. A perusal of the custody
certificate which has been placed on record by the learned State counsel
reveals that after the sentence of the petitioner was suspended by the
learned Court below on 10.07.2007, he had yet again been involved in
another case i.e. FIR No.165 dated 04.09.2017 under Sections 22/61/85
of the NDPS Act registered at Police Station Kartarpur. In the
circumstances and keeping in view the antecedents and subsequent
conduct of the petitioner, after his conviction in the case in hand, he
does not deserve the benefit of being extended the concession of
probation.
11. As a sequel to the above, the instant petition being devoid
of any merit is dismissed.
12. The petitioner shall surrender back to the jail authorities
within two weeks from the date of passing of this order.
04.09.2023 (MANJARI NEHRU KAUL)
Vinay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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