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2022 Supreme(HP) 708
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Nain Singh - Petitioner
Versus
State of H.P. - Respondent
Cr. Revision No. 261 of 2012
Decided On : 25-11-2022
For the Petitioner: Mr. Karan Singh Kanwar.
For the Respondent: Mr. Desh Raj Thakur, Addl. A.G. with Mr. Narender Thakur, Asstt. A.G.
Point of Law : Only because the independent witness associated in the investigation had not supported the prosecution case, the testimonies of police witnesses cannot be brushed aside.
Headnote:
Punjab Excise Act - Section 61 (1) (c) – Criminal Procedure Code,1973 - Section 313 and 374 - Illicit liquor “Bhatti” - Possession - (PW-5) and (PW-4) were on routine patrol duty - They met (PW-1), who was on his way to Village - All of them proceeded together in direction of Village Tikkar - On way, they noticed smoke emanating from side of “Nallah” (Stream). They proceeded towards direction from where smoke was emanating and found that petitioner was operating illicit liquor “Bhatti” - About 150 liters of “Lahan” was found in drum and six bottles of distilled illicit liquor were found contained in a container - Samples of “Lahan” and illicit liquor were drawn and were sealed- Equipment used for preparation of illicit liquor was taken into possession. “Rukka” was sent to Police Station and on basis of which, FIR Ext. PW-4/A was registered - Samples were sent for chemical examination to CTL, Kandaghat - Those were confirmed to be of “Lahan” and illicit liquor vide report Ext. PW-6/A - A prima-facie case under Section 61 (1) (c) of Punjab Excise Act, as applicable to State of Himachal Pradesh , was found against the petitioner. [Para 10]
Finding of Court : It was next contended on behalf of the petitioner that reliance placed on testimonies of police witnesses was not safe as they were interested witnesses - Since the independent witness had turned hostile, benefit of doubt was liable to be given to petitioner - Learned Appellate Court has rightly held that conviction can be based on testimonies of police witnesses, provided they are scrutinized with caution and thereafter found to be trustworthy - In instant case after going through statements of PW-4 and PW-5, no fault can be found with the findings of fact recorded by both courts below - Learned counsel for the petitioner has also submitted that the spot of recovery was near Village Tikkar and the police could easily procure witnesses from said village - As noticed above, it was a chance recovery and police was already in company of a resident of area, whom they had associated in investigation - Learned courts below have rightly appreciated evidence and the findings recorded by them cannot be said to be illegal or perverse - Petitioner has not been able to show from records that there was any defect or illegality in process of sampling - It has also not been shown that there was any tampering of case property at any point of time.
Result : Petition dismissed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has assailed judgment dated 29.11.2012, passed by learned Sessions Judge, Sirmour, District at Nahan in Criminal Appeal No. 56-Cr.A/10 of 2011, whereby the judgment and sentence order 25.5.2011/30.5.2011, passed by learned Judicial Magistrate, 1st Class, Court No.1, Paonta Sahib, District Sirmour, H.P. has been affirmed.
2. The case of prosecution in nut-shell was that on 5.1.2007, HC Bahadur Singh (PW-5) and Constable Kailash Kant (PW-4) were on routine patrol duty. They met Sh. Telu Ram (PW-1), who was on his way to Village Tikkar. All of them proceeded together in the direction of Village Tikkar. On the way, they noticed smoke emanating from the side of “Nallah” (Stream). They proceeded towards the direction from where the smoke was emanating and found that petitioner was operating illicit liquor “Bhatti”. About 150 liters of “Lahan” was found in the drum and six bottles of distilled illicit liquor were found contained in a container. Samples of “Lahan” and illicit liquor were drawn and were sealed. The equipment used for preparation of illicit liquor was taken into possession. “Rukka” was sent to Police Station and on the basis of which, FIR Ext. PW-4/A was registered. The samples were sent for chemical examination to CTL, Kandaghat. Those were confirmed to be of “Lahan” and illicit liquor vide report Ext. PW-6/A. A prima-facie case under Section 61 (1) (c) of Punjab Excise Act, as applicable to the State of Himachal Pradesh (for short “the Act”), was found against the petitioner.
3. Prosecution examined 7 witnesses and also proved the documents prepared during investigation. Petitioner was examined under Section 313 Cr.P.C. He did not lead any defence evidence.
4. Learned trial Court convicted the petitioner for commission of offence under Section 61 (1) (c) of the Act vide judgment dated 25.5.2011 and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/-. In default of payment of fine, the petitioner was further ordered to undergo simple imprisonment for one month vide sentence order dated 30.5.2011.
5. Petitioner has assailed his conviction and sentence before learned Sessions Judge, Sirmour at Nahan by filing appeal under Section 374 of the Code of Criminal Procedure (for short “the Code”). Learned Appellate Court affirmed the conviction and sentence of petitioner vide judgment dated 29.11.2012.
6. Petitioner has laid challenge to the judgment passed by learned Appellate Court affirming the judgment and sentence passed/imposed by learned trial Court on the grounds that both the courts below have committed patent illegality in convicting the petitioner whereas, prosecution evidence was clearly deficient and was full of doubts.
7. I have heard the learned counsel for the parties and have also gone through the record carefully.
8. Prosecution examined PW-1, Telu Ram, PW-4, Constable Kailash Kant and PW-5, HC Bahadur Singh as spot witnesses. PW-1, Telu Ram did not support the prosecution case. He was cross-examined by learned Prosecutor. This witness admitted having signed the document Ext. PW-2/A i.e. the recovery memo. The other two spot witnesses supported the prosecution case. Placing reliance upon their testimonies, both the courts below have convicted the petitioner, as noticed above.
9. Learned counsel for the petitioner has contended that the entire case of prosecution was falsified from the statement of PW-5 made by him during his cross-examination, whereby he admitted that the drum Ext. PW-3 was in broken condition and nothing could be stored in such drum. He laid stress on the arguments that as per prosecution case, 150 liters of “Lahan” was found in drum Ext. P-3, which was not possible, keeping in view the condition of the drum. It was further submitted on behalf of the petitioner that both the courts below have erred by ignoring such a material piece of evidence.
10. The argument so raised needs rejection for the reaso
