CIVIL APPEAL 1972 of 2005 on 26 May 1996

Criminal Revision No.1972 of 2005

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

Criminal Revision No.1972 of 2005Date of Decision 02.12.2010Sushil Kumar

...... PetitionerVERSUS

State of Haryana

...... Respondent

CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL

Present:Mr.O.P.Sharma, Advocate,for the petitioner.

Mr.J.S.Rattu, Deputy Advocate General, Haryana,for the respondent-State.

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A.N.JINDAL, J:

The accused-petitioner (herein referred as 'the accused') haschallenged the legality, propriety and correctness of the judgment dated13.10.2005, passed by Sessions Judge, Rewari, dismissing his appealagainst the judgment dated 20/21.08.2001, passed by Judicial Magistrate IstClass, Rewari, convicting and sentencing him to undergo rigorousimprisonment for a period of 1½ years and to pay a fine of Rs.2,000/- underSection 61(1)(a) of the Punjab Excise Act, 1914 (for brevity 'the Act').

In nutshell, the allegations are that on 26.05.1996 when HeadConstable Jawahar Singh alongwith other police officials was present on theturning of village Alawalpur, the accused while driving Maruti Car bearingregistration No.DL-5C-6686 was seen coming. When he was signalled tostop, he tried to turn his car towards village Bhatsana but he wasapprehended. Head Constable Jawahar Singh (herein referred as 'theInvestigating Officer'), on search of the car, recovered three rubber tubes, containing illicit liquor. Out of the said liquor, a nip as sample wasseparated from each tube. On measurement of the remaining liquor, eachtube was found to contain 99-3/4 bottles. Ruqa was sent to the policestation on the basis of which case was registered and investigated.

On submission of the report under Section 173 Cr.P.C. in theCourt, the accused was charged for the aforesaid offences to which hepleaded not guilty and claimed trial.

The prosecution in order to substantiate the charges examinedVijay Pal (PW1), Constable Raj Pat (PW2) and Head Constable JawaharSingh (PW3), Some documents were also tendered in evidence.

When examined under Section 313 Cr.P.C., the accused deniedall the allegations levelled against him and pleaded his false implication.However, no evidence was led in defence.

The trial ended in conviction. The appeal, preferred by himwas also dismissed.

Admittedly, the case property including the tubes in which theliquor was contained, were not produced in the Court; no such evidence,showing that the case property was deposited in the malkhana and the samewas disposed off or destroyed at any point of time before producing thesame in the Court, has been led and no explanation has comeforth as to whythe case property was not produced. The trial Court refused to rely upon thejudgment delivered by this Court in case Suba Singh versus State ofPunjab 1984 (1) RCR (Criminal) 429without disclosing any plausiblereasons. InSuba Singh's case (supra), his Lordship observed as under:- “Counsel for the State relied upon Balraj Singh versus State ofPunjab, 1982 C.L.J. (C & Cr.) 222. Even the Courts belowhave also based their conviction after relying upon the observations made in this authority but the courts below failedto appreciate the observations of the Division Bench in para 15of this judgment which are as follows:- 'I must, however, sound a strong note of caution that theview I am inclined to take must not be misunderstood tomean as if the production of the case property is to bedispensed with at the trial. Equally if some thing vitalturns on it, the accused can insist upon its production andthe refusal to do so would be a factor for adverse noticeagainst the prosecution by the Court.”

Thus, the aforesaid authority is of no help to theprosecution. There is no quarrel with the principles of law aslaid down in the aforesaid authority. The only observation isthat the case property is a sort of corroborative evidence andthat mere non-production of part or the whole of the caseproperty would not by itself vitiate the subsequent convictionof the accused but in the same authority it is observed that theprinciple must not be misunderstood to mean as if theproduction of the case property is to be dispensed with at thetrial and normally it is the duty of the prosecution to do so andin the present case as observed earlier the prosecution has notgiven any explanation as to how the liquor disappeared fromthe tubes. It seems that the aforesaid authority is being misusedby the prosecution and the courts below in the present casewithout reading the whole of the judgment have blindlyconvicted the petitioner. The principle of law as laid down inthe aforesaid authority is to be applied cautiously in the factsand circumstances of each case if there is plausible evidencethat the case property could not be produced or was destroyed.In the absence of any plausible explanation for non-productionof the case property benefit must be given to the accused.”

The instant case is on a better footing. In this case, neither the liquor nor the tubes, which are said to contain liquor, have been produced inthe Court. No plausible explanation has comeforth as to where the case Criminal Revision No.1972 of 2005

property i.e. liquor and the tubes in which the liquor was contained, havedisappeared. The case is based on the testimonies of two official witnesses.Had the case property been produced then the testimonies of officialwitnesses could find corroboration. The First Appellate Court, withoutscrutinizing the judgment passed by the trial Court, has blindly stamped it,which could not be expected from the judicial officer of the status of aSessions Judge. Even no rapat roznamcha has been produced in the Courtin order to show that the case property was ever deposited by theInvestigating Officer in the Malkhana. Similarly in case Singara Singh versus State of Haryana 1997 (2) RCR (Criminal) 783both the Courtsbelow had convicted the accused while holding that the non-production ofthe case property will not prove fatal but his lordship observed that merelybecause the case is supported by the official witnesses will not put an end tothe matter and further observed as under:- “Preserving a case property and producing it during the courseof trial is of utmost importance. If the case property isperishable, the order of the court can be obtained. Otherwise,an attempt must be made to keep the property in safe custody.It is a valuable piece of evidence. The Punjab Police Rules asapplicable to the State of Haryana provide the same guidelines.Under Rule 22.15, it is the responsibility of the officer-in-charge of the police station to examine the property twice amonth because he is supposed to be incharge of the same. Rule22.15 reads as under:-

“22.15. Public Property –Subject to the orders andresponsibility of the officer-in-charge of the policestation, the station clerk shall be considered to be incharge of all public property including money and caseproperty in his station house. Every officer in charge ofthe station shall examine the property at least twice aresponsibility of the officer-in-charge of the policestation, the station clerk shall be considered to be incharge of all public property including money and caseproperty in his station house. Every officer in charge ofthe station shall examine the property at least twice a month and shall report in the following Monday's diarythat he has done so. If property is found to be incompleteor to be in any way damaged, he shall add to his reportthe names of the persons responsible for the loss ordamage.”

He shall also see that the property in connection with a case isexpeditiously disposed of according to magisterial orders onthe conclusion of the case..

All property shall be examined by officers-in-charge of policestations on receiving and handing over charge and by stationclerks on relief. All damages and shortages must then becarefully noted and reported to the Superintendent of Police.

Furthermore, under Rule 27.17, It is the duty of the prosecutingagency to maintain the said property till such time the finalorders are passed. Sub-Rule (1) of Rule 27.17 is material andreads as under:- “27,17(1) At headquarters the head of the prosecutingagency, with the assistance of his staff, shall take chargeof weapons, articles and property connected with casessent for trial and shall be responsible for their safecustody until the case is decided. When final orders arepassed in the case, such weapons, articles and propertyshall, if not made over to the owner, be made over to thesheriff.”

Lastly his Lordship observed as under:-

Reverting back to the facts of the present case, one mustlook at the explanation offered. It is not that the caseproperty had been stolen. Merely stating that it hadleaked will not satisfy a trained mind. There is nothingon the record to indicate that an entry was made in theroznamcha when leakage was noticed. Even if no suchentry was made, it should have been brought to the noticeof the Court. Such a huge quantity of lahan could not vanish in to thin air. Had the case property beenproduced, the witnesses had to identify as to what wasrecovered. A prejudice necessarily is caused to theaccused-petitioner because in a given set ofcircumstances, he could seek a further taking of thesample. The defence counsel rightly argued thatprejudice had been caused. When such is theinvestigation and nature of material forthcoming, itwould be unsafe further for rely on the testimonies of theofficial witnesses. The petitioner is entitled to anacquittal.”

In the instant case also, MHC with whom the case property wasallegedly entrusted, has also not been examined. No report Roznamchashowing that case property was deposited in the malkhana has been proved.Even Head Constable Jawahar Singh (PW3) has not stated that when he haddeposited the case property in the malkhana whereas PW2 is silent if it wasdeposited in the malkahana or not. Under these circumstances, the recoveryof illicit liquor from the possession of the accused cannot be said to beestablished beyond reasonable doubt. The aforesaid aspects were not takennote of by both the Courts below while recording the findings of theconviction against the accused. Resultantly, interference at my end hasbecome inevitable.

For the aforesaid reasons, this petition is accepted; impugnedjudgment is set aside and the petitioner is acquitted of the charge framedagainst him. He is directed to be set at liberty forthwith. Bail bond andsurety bond, furnished by him, stand discharged. Fine, if any deposited, berefunded.

(A.N.Jindal) Judge