Nachhattar Singh vs State of Punjab

M.L. Singhal, J.

The prosecution case in brief is that on 30.3.1995, Excise Inspector Sat Pal Gupta alongwith other officials of the Excise Staff reached the round about near the Post Office Gate in a private Jeep in connection with the detection of liquor. Jeep No. HPM 138 of skyblue colour was found and Nachhattar Singh accused was sitting in the Jeep. Jeep was searched. Search of the Jeep yielded the recovery of five cartons. Out of those cartons, two cartons contained 12 bottles each of Bagpiper liquor, remaining two cartons contained 12 bottles each of Solan No. 1 whisky. Remaining one carton contained six bottles of Bagpiper liquor and six bottles of Solan No. 1 whisky. In this manner, 60 bottles of Indian Made Foreign Whisky of the said brands were recovered from the Jeep in five cartons. Sample weighing 180 Mls. of liquor was taken out of each bottle. All the bottles were sealed with seal of the Excise Inspector bearing seal SPG. Sample nips were also saled with the same seal impression. Seal after use was handed over to Constable Jaswant Singh. Sat Pal Gupta Excise Inspector took the case property into possession vide memo Ex. PB. Ruqa Ex. PD was sent to the Police Station, on the basis of which formal FIR was registered at Police Station Sadar Bathinda. The sample nips were sent for chemical examination. Chemical Examiner reported vide report Ex. PE that they contained liquor resembling Indian Made Foreign Whisky. After investigation, accused was challaned under section 61(1)(a) of the Punjab Excise Act, 1914.

Accused was charged under section 61(1)(a) of the Punjab Excise Act by Judicial Magistrate Ist Class, Bathinda.

On conclusion of the trial, the learned Judicial Magistrate, Bathinda found the charge proved against the accused. He accordingly convicted him under section 61(1)(a) of the Punjab Excise Act and sentenced him to undergo R.I. for six months and to pay fine of Rs. 1000/ or in default to undergo further R.I. for one month vide order dated 21.8.1998. Nachhattar Singh went in appeal to the Court of Sessions against this order of conviction and sentence passed upon him by the learned Judicial Magistrate Ist Class, Bathinda.

Learned Additional Sessions Judge dismissed his appeal vide order dated 12.3.1999. Nachhattar Singh has yet come to this Court through this revision thereby challenging his conviction and sentence recorded by the learned Additional Sessions Judge, Bathinda on 12.3.1999 dismissing his appeal against conviction and sentence passed by the learned Magistrate.

I have heard the learned Counsel for the petitioner and have gone through the record. Learned counsel for the petitioner submitted that Excise Inspector Sat Pal Gupta is supported by no other than Constable Gurmej Singh who was also attached to him. He submitted that it would not safe to hold the accused liable for possession of liquor on the uncorroborated testimony of Constable Gurmej Singh and Excise Inspector Sat Pal Gupta, particularly, when corroboration could he had but was not had. It was submitted that according to them, the place of recovery is roundabout near the Post Office, Bathinda and the recovery allegedly took place at 4.30 P.M. It was submitted that Excise Inspector Sat Pal Gupta admitted in his crossexamination that the vicinity of the place of recovery is thickly populated and there was traffic also on that road. He stated that he tried to join an independent witness but nobody agreed to come forward and join him. He could not tell the name of any alleged independent witness whom he requested to join. He did not mention his name in the case diary. He remained at the place of recovery for 4/5 hours, investigated that case. During that period, people passed by the side of the place of recovery. Learned counsel for the petitioner submitted that Excise Inspector Sat Pal Gupta should have one or the other step taken by him in the investigation attested from that witness, so that the court could be assured of that they were really present at that point and drew sample nips out of the liquor bottles and they were sealing the sample nips drawn from the sixty bottles. Drawal of the sample nips from sixty bottles must have taken them adequate time. Similarly, sealing the sample nips and the liquor bottles must have taken adequate time. It was submitted that in these circumstances, Excise Inspector Sat Pal Gupta and Constable Gurmej Singh should not be believed. Excise Inspector Sat Pal Gupta stated that they procured nips from a country liquor vend situated at Bus Stand Bathinda. It was submitted that if that was so, at least the liquor vendor or the salesman operating that liquor vend could have been called upon to witness one or the other step being taken by him in investigation. It was submitted that he would have been interested in being enshrined as a witness as it was against his interest if liquor was being taken unauthorisedly for being sold. In this case, thus the submission was that Excise Inspector Sat Pal Gupta was in a position to join an independent witness for witnessing this recovery and he and Constable Gurmej Singh should not be believed without corroboration when corroboration could be had but was not had and they are interested in the detection of liquor.

It was further submitted that the prosecution case is unnatural and improbable and it is not believable that the accused was keeping such a large quantity of liquor near the office of Senior Superintendent of Police, Bathinda.

Learned counsel for the petitioner submitted that there are discrepancies in the statements of PWs. Where Excise Inspector Sat Pal Gupta has stated that they procured nips from a country liquor vend situated near the Bus Stand Bathinda, Constable Gurmej Singh stated that they did not take any proceedings at the spot. Excise Inspector Sat Pal Gupta stated that they remained at the place of recovery for 4/5 hours. Constable Gurmej Singh stated that they went to Police Station Kotwali Bathinda where the nips were drawn. It was submitted that in the face of the statements of Excise Inspector Sat Pal Gupta and Constable Gurmej Singh being discrepant, there should have been corroboration to their testimony. He drew my attention to State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports page 361 where it was held that "where there were 20 shops nearby and the investigating Officer had ample opportunity to join independent witness, statements of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in a false case was repelled." In this case also, I think that on the uncorroborated testimony of Excise Inspector Sat Pal Gupta and Constable Gurmej Singh accused should not be convicted and the Jeep confiscated.

For the reasons given above, this Criminal Revision succeeds and is accepted. Conviction and sentence passed upon the petitioner are set aside and he is acquitted of the charge levelled against him. Jeep is also ordered to be restored to him.

Revision accepted.