Dalip Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioners Dalip singh and Kashmira Singh have filed this criminal revision against their conviction under Section 61(1)(a) of the Punjab Excise Act. By the judgment of the learned Additional Sessions Judge, Hoshiarpur dated 2.7.1987, their conviction in the abovesaid offence is affirmed and their jail sentence is reduced from 11/2 years to one year rigorous imprisonment with a fine of Rs. 1500/; in default, further rigorous imprisonment for four months.

During the pendency of this revision, the revisionists Som Pal and Sat Pal died. Now this revision is decided with regard to Dalip Singh and Kashmira Singh only.

In brief, prosecution case is that on 24.6.1984 Subedar Tej Bahadur along with some other officials of the Army, while on patrol duty, stopped a truck No. HPG399, which was coming from Pathankot side. All these three accused persons were sitting in the truck. Dalip Singh accused was driving the truck and other accused were siting in the same. When search was taken, it was found that there were two tubes of the truck and 16 bladders containing illicit liquor. This contraband was seized by Subedar Tej Bahadur. Accused persons along with contraband were produced before Captain H. Porendera, who gave letter Exhibit P1 to Subedar Tej Bahadur. Then these accused persons along with illicit liquor were produced before Police Station, Mukerian along with letter, Exhibit P1. Police Inspector then took samples out of the seized contraband; the illicit liquor was emptied from the tubes and bladders into 16 cans, each can contained 191/2 bottles. Samples were taken out of these cans. Recovery was made vide Memo `PK''. The driving licence and the registration of the truck were also seized. First Information Report was recorded at the police station. Samples were sent to Chemical Examiner for analysis, who submitted his report, Exhibit PD. After completing usual investigation, challan was filed.

During trial, prosecution examined Head Constable Inderjit Singh PW1, Dalbir Singh, Assistant Sub Inspector PW2, Subedar Tej Bahadur PW3 and Jagbir Singh, Excise Peon, PW4 and also submitted Chemical Examiner''s report Exhibit PD and affidavits of Jaswant Singh Exhibit PE and Surinder Kumar Exhibit PF.

Accused denied the allegations and examined witnesses in their defence.

Relying on the prosecution evidence, the learned Judicial Magistrate I Class, held the accused persons guilty of the offence and convicted them for the same. They were sentenced to undergo imprisonment for 11/2 years with a fine of Rs. 1500/ each; in default, rigorous imprisonment for four months each.

These accused persons filed two criminal appeals, which were heard and decided by the learned Additional Sessions Judge, Hoshiarpur vide judgment dated 2.7.1987. The learned Additional Sessions Judge affirmed the conviction of the appellants, but reduced the sentence to one year rigorous imprisonment. With this modification, appeals were disposed of.

After going through the trial Court''s record and keeping in view the Grounds of Revision, arguments of Deputy Advocate General, Punjab, were heard as none appeared for the petitioners. In the Grounds of Revision, points raised are that there was no independent corroboration, their conviction was passed on the uncorroborated testimony of Subedar Tej Bahadur PW3. Case property was not produced. Army authorities were not empowered to take search and seize the contraband from the petitioners under the Punjab Excise Act. Lastly, the petitioners are entitled to benefit of probation as the case was pending since long.

Trial Court as well as the first appellate Court have considered all these points. The trial Court has discussed that under ordinance No. 9 of 1983, i.e. Armed Forces (Punjab and Chandigarh) Special Powers dated 15.10.1985, the army deployed in Punjab and Chandigarh were empowered to take search and seize any vehicle or vessel, if upon search any contraband article is found therein. Thus, this ground has no bearing on the merits of this case that armed forces were not authorised to seize the contraband from the truck of the petitioner accused.

The trial Court as well as the appellate Court have also held that Subedar Tej Bahadur had no enmity with the accused persons. Thus, if his statement was not corroborated by any other witness, there was no reason to disbelieve him on any count.

The next ground is that the case property was not produced in this case. This point was also considered by the Courts below. The other witnesses were examined; affidavits of Jaswant Singh, Exhibit PE and Surinder Kumar Exhibit PF were tendered in evidence; report of the Chemical Examiner, Exhibit PD, was also tendered in evidence. While accused persons were examined under Section 313, Code of Criminal Procedure, this evidence was put to them. No request was made by the accused persons that the deponents of these affidavits be produced for crossexamination or expert (Chemical Examiner) be examined in Court. Thus, relying on the report, the Courts below have held that the illicit liquor was found in possession of these accused persons.

Two accused persons have already died. This criminal case was registered on 24.6.1984. More than 14 years have passed. Thus, on this ground alone, revision is partly allowed. Petitioners are given the benefit of probation under Section 4 of the Probation of Offenders'' Act that they will maintain peace and be of good behaviour for a period of one year. Petitioners are directed to furnish bonds in the amount of Rs. 500/ each to the satisfaction of Judicial Magistrate I Class, Dasuya, and if they submit bonds they be released on probation. With this modification in sentence, revision is disposed of.

Revision partly allowed.