Punjab-Haryana High Court
Ashok Kumar And Anr vs State Of Punjab on 25 November, 2024
Neutral Citation No:=2024:PHHC:154719
CRR 605 of 2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
249 CRR 605 of 2017
Date of Decision: 25.11.2024
Ashok Kumar and another ...Petitioner
Versus
State of Punjab ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Ms. Gursharan Kaur Mann, Sr. Advocate with
Mr. Anmol Singh, Advocate, for the petitioners.
Mr. Malkiat Singh, DAG, Punjab.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioners have filed the present revision petition
against the impugned judgment dated 03.02.2017 passed by the Court
of Additional Sessions Judge, Ludhiana and the impugned judgment
and order dated 13.12.2013 passed by the Court of Judicial Magistrate
1st Class, Ludhiana, whereby, the petitioners have been convicted for
the offence punishable under Sections 61/1/14 of the Excise Act and
sentenced as under:-
Name of Offence Sentence Fine In default
Convict under
Section
Ashok 61 of Excise Simple 500/- Simple
Kumar Act imprisonment for imprisonment
6 months for 15 days.
Bunty 61 of Excise Simple 500/- Simple
Act imprisonment for imprisonment
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06 months for 15 days
It was also ordered that the period of detention already
undergone by the convicts shall be set off against the term of
imprisonment on the convicts.
2. As per the case of the prosecution, on 01.07.2010, the
police party received a secret information that two persons used to
bring Whisky at cheaper prices and sell the same at Ludhiana at
higher prices and they were traveling in a Maruti car bearing
registration No. PB-10-P-6688 and if a picket was set up, they could
be caught red handed and huge quantity of liquor could be recovered
from them. On finding the information believable, the formal FIR was
registered in the present case. A Naka was set up and a car bearing
registration No. PB-10-P-6688 driven by a Hindu gentleman came
and one person was driving the car and the other was sitting on the
front seat. Both of them were apprehended at the spot on suspicion.
On inquiry, they disclosed their names as Ashok Kumar and Bunty,
both the petitioner and during search of the car, 90 bottles of English
liqour make Hawaldar, 72 bottles of Everyday Gold and 48 bottles of
English liqour Silver Peg 750 ml each were recovered. A nip of 180
ml was drawn from each of the bottles as sample and the remaining
bottles were sealed by the I.O. and the case property was taken into
possession by the police. After usual legal formalities, the
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investigation was completed and the challan was presented against the
petitioners in the Court.
3. After the presentation of the challan, both the petitioners
were charge sheeted for the offence punishable under Section 61 of
the Excise Act and the charges were explained to them. However,
both the accused pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined
the recovery witness HC Amrik Singh as PW1, HC Gurjit Singh as
PW2, ASI Sheesh Pal as PW3 and the Investigating Officer of the
case ASI Gian Singh as PW4 and, thereafter, the evidence of the
prosecution was closed.
6. Statements of the accused under Section 313 Cr.P.C.
were recorded, in which, the incriminating prosecution evidence was
put to the accused, to which, they made a denial of all the allegations
and pleaded innocence and false implication but preferred not to lead
any defence evidence.
7. After hearing learned counsel for the parties, both the
Courts had convicted the petitioners. Feeling aggrieved by both the
impugned judgments, the petitioners have filed the present revision
petition before this Court.
8. Learned senior counsel appearing on behalf of the
petitioners contended that the prosecution had wrongly alleged the
recovery of 210 bottles whereas when the case property was produced
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in the Court, only 116 bottles were produced, seals of 30/40 bottles
were broken and more than half of the bottles were less than 250 ml.
Thus, it stood established that the case property was tampered. Even,
the police had admitted that the case property was not intact, the seals
were broken and the bottles were missing. Thus, the recovery was
apparently doubtful and planted and prosecution has not been able to
establish the offence beyond the shadow of reasonable doubt. Learned
senior counsel further submitted that the alleged recovery was
effected from the car and the prosecution had failed to connect the
petitioners with the alleged recovered Maruti car bearing registration
No. PB-10-P-6688. They had not even recovered the driving licence
of the petitioner nor the registration certificate of the car was taken
into possession. Still further, the recovery was made at the fly over
and several other persons were available at the spot. However, the
police had failed to join any independent witness at the time of the
alleged recovery. Even, the police had admitted that there was no one
present at the spot and the prosecution evidence is liable to be
discarded in the absence of the independent evidence.
9. Learned senior counsel further argued that after preparing
and sealing the parcels, PW4 IO Gian Singh had handed over the seal to
PW1 HC Amrik Singh on the next day. Thus, it was ample clear that the
seal was not handed over to the independent witnesses and the
possibility with the tampering with the seals/samples could
not be ruled out and the petitioners were liable to
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be acquitted. Still further, the Court had not considered the testimonies of
the Investigating Officer PW4 ASI Gian Singh in the correct
prospective and the police had falsely involved the petitioner only on
the basis of the suspicion.
10. On the other hand, learned State counsel vehemently
opposed the submissions made by the petitioners on the ground that
all the bottles were duly produced before the trial Court and during
the process of the bottles in the Malkhana, seals of some of the bottles
were broken. Thus, when the recovery had been duly proved by PW1
HC Amrik Singh, no benefit could be derived by the petitioners in the
present case. Still further, in the present case, the petitioners were
tried and convicted for possessing the illicit liqour and the recovery
stood amply proved. Thus, even if the driving licence of the
petitioners or the RC of the car could not be recovered, still, it would
not cause any dent in the case of the prosecution. Still further, the
police officials had tried to join the independent witnesses, but no
independent witness joined at the place of the recovery as the
petitioners were smugglers and, nowadays, it is a matter of common
experience that no person wishes to depose against the hardened
criminals. Learned State counsel further submitted that even the
police officials had no reasons to falsely involve the petitioners and
even, there was no reason to discard the testimonies of the official
witnesses in the present case.
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11. I have heard the submissions made by learned counsel
for the parties and perused the record carefully.
12. The main contention raised by the learned counsel for the
petitioners is that the prosecution had alleged recovery of 210 bottles,
whereas, the prosecution could produce only 116 bottles and less than
30/40 bottles were broken and more than half of the bottles were less
than 250/- ml. However, I find no merit in the submissions raised by
the learned counsel for the petitioners. In the present case, the
prosecution had alleged that 210 bottles were recovered from the
petitioners and the case property was duly proved as Ex.MO-1 to
MO-210 and the recovery was also proved by HC Amrik Singh PW1,
who was part of the raiding team and had witnessed the recovery. Still
further, when the ASI Gian Singh PW4 was examined, no suggestion
was put to him that the recovery of 210 bottles had not been made by
the police. Still further, the defence had also admitted the recovery of
116 bottles of illicit liqour. Further, the samples were drawn from 210
bottles and the report produced by the chemical examiner was also
regarding 210 samples. Thus, there is no material on record to hold
that the recovery was not effected from the petitioners.
13. Even, the petitioners had failed to give any explanation
with regard to the possession of the liqour and no permit/licence
could be produced by them.
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14. Still further, learned senior counsel for the petitioners had
vehemently argued that the prosecution had failed to connect the
Maruti car with the petitioners as neither the driving licence of the
petitioner who was driving the car was taken into possession nor the
registration certificate was recovered by the police. However, I find
no merit in the submissions raised on behalf of the petitioners. In the
present case, the recovery of illicit liqour stood proved beyond the
shadow of doubt. Even if the registration certificate of the car could
not be taken into possession by the police, no benefit can be extended
to the accused in the present case. The prosecution had examined four
witnesses and the recovery of the bottles of liquor stood proved and
the absence of the registration certificate from the record will not help
the case of the accused in any manner. Even if, there was some lapse
on the part of the Investigating Officer, the accused cannot derive any
benefit from the same.
15. In the present case, no doubt, the whole case is based on
the testimonies of four witnesses, but it cannot serve as a ground to
reject the case of the prosecution. In fact, the official witnesses had no
reason to falsely involve the petitioners nor any such suggestion has
been given to the witnesses. Even otherwise, there was sufficient
evidence to show that the witnesses of the prosecution tried to join the
independent witnesses, but no one was willing to join. It is a matter of
common experience, nowadays, no public witness is ready to depose
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against the smugglers. Apart from that, in the present case, the seal
was handed over by PW4 ASI IO Gian Singh to PW1 HC Amrik
Singh and not to the independent witnesses. However, again it can be
held that the official witnesses had consistently deposed against the
petitioners and both PW4 ASI Gian Singh and HC PW1 Amrik Singh
had no enmity with the petitioners. Thus, the impugned judgments are
based on correct appreciation of evidence and law.
16. Still further, averting to the order of sentence, this Court
had noticed that the FIR in the present case was registered on
01.07.2010 and the petitioners are facing the agony of trial and appeal
for the last more than 14 years. Even, the petitioners were aged about
29 years and 18 years approximately at the time of recovery of the
contraband from them. Even otherwise, the petitioners have already
undergone 19 days out of total sentence of 06 months and no purpose
will be served by sending both the petitioners behind the bars, at this
stage.
17. Consequently, the sentence is reduced to the period
already undergone by them. However, the sentence of fine will remain
the same.
18. With the above modifications, the revision is partly
allowed and the impugned judgment of convictions are upheld,
whereas the order of sentence is modified to the extent that the
sentence imposed on the present petitioners is reduced to the period
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already undergone by them. However, the sentence of fine will
remain the same.
19. All pending applications, if any, are disposed off,
accordingly.
20. The case property, if any, may be dealt with as per the
rules after expiry of period of limitation for filing the appeal.
25.11.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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