Shish Pal vs State of Haryana

S.S. Saron, J.—The facts relating to the filing of the present criminal revision are that case F.I.R.No.247 dated 11.8.1989 has been registered at Police Station City, Kaithal u/s 61 of the Punjab Excise Act. The said F.I.R. has been registered on the statement of Inspector, Station House Officer, Police Station, City Kaithal, who along with other constables in connection with patrolling duty apprehended the petitioner at the spot alongwith Head Constable Ram Kumar taking liquor in a public place. Head Constable, Ram Kumar has been reported to have run away from the spot. Despite the efforts made he could not be apprehended and challan has been filed against both the accused. The learned Sub Divisional Judicial Magistrate, Kaithal vide his order dated 12.12.1989 discharged Head Constable Ram Kumar from the case on the ground that there was no direct evidence against him for the offence attributed to him. As regards the petitioner, Shish Paul, it was held that he was apprehended at the spot and bottle containing liquor was recovered from his possession, as such, he had prima facie committed the offence u/s 61(1)(a) of the Punjab Excise Act, 1914 and he was charged accordingly. Against the said order, Shish Paul has filed the present revision petition in which further proceedings were stayed by this Court on 8.6.1990.

Mr.Rakesh Nagpal, learned counsel appearing for the petitioner has contended that the charge against the petitioner is also not made out. Besides, the co-accused has been discharged and, therefore, there is no reason for not discharging the petitioner.

Learned counsel appearing for the State, however, contends that the petitioner was apprehended at the spot and he was consuming liquor at a public place and, therefore, he is liable to be tried for the offence attributed to him. The provision of Section 61(1)(a) of the Punjab Excise Act. 1914 reads as under:

Penalty for unlawful import, export, transport, manufacture, possession etc. - (1) Whoever, in contravention of any section of this Act, or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act,-

(a) import, exports, transports, manufactures, collects or possess any intoxicant, or

(b) constructs or works any distillery or brewery; or

(c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari,

shall be punishable for every such offence with imprisonment for a term which may extend to three years and with fine upto twenty five thousand rupees.

The allegation, therefore, against the petitioner is that he was in possession of intoxicants, which is an offence punishable with imprisonment for a term which may extend to three years and with fine upto Rs.25,000/-. The reading of the F.I.R. which has been placed on record shows that the complainant himself was the Investigating Officer in the case and this in the circumstances is not sustainable n law in view of the judgment of the Hon''ble Supreme Court in the case Megha Singh Vs. State of Haryana, . Therefore, the complainant being the Investigating Officer in the facts and circumstances of this case no offence is made out against the petitioner.

In reaching the above conclusion, it may also be pointed out that the case itself is of the year 1989 and for such an offence the petitioner, even if proved guilty, can be release on probation. He has already suffered a lot due to the pendency of the case for the last more than 13 years. Besides the offence attributed is not of such a serious nature, which would warrant the trail of the petitioner at this stage. Even otherwise, the co-accused of the petitioner, who was consuming the liquor alongwith petitioner has been discharged by the learned trial Court. The learned counsel appearing for the Sate has not been able to show as to whether any revision was filed by the State against the order of discharge of Head Constable Ram Kumar.

Keeping in view the above facts and circumstances, the revision petition is allowed and the order dated 12.12.1989 of the learned Sub Divisional Magistrate, Kaithal, framing charge against the petitioner is quashed.