The non-production of the case property, including the lahan, prejudiced the petitioner's defense and entitled him to an acquittal.

V.S.Aggarwal, J.

1. The learned Additional Chief Judicial Magistrate, Kurukshetra, held the petitioner guilty of the offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to Haryana. The petitioner was sentenced to undergo rigorous imprisonment for three months and a fine of Rs. 1,000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for two months. The petitioner preferred an appeal. The learned Sessions Judge, Kurukshetra on 1.5.1987 dismissed the appeal.

2. The relevant facts of the prosecution case are that on 13.5.1984 ASI Chaman Lal along with HC Kanshi Ram and C. Narinder Singh were present at Bus Stand Masana. They were conducting the excise checking. Secret information was received that petitioner Shingara Singh a resident of Masana sells illicit liquor and in case a raid is conducted, liquor or lahan could be recovered from him. On this information, the ASI alongwith his police party went to the fields of the petitioner. The petitioner was present at his tubewell. He was interrogated. The petitioner made a disclosure statement that he was kept concealed a drum containing lahan in a heap beneath toori (fodder) and that he could get the same recovered. His statement was recorded. In pursuance of that statement, he led the police party near that heap. The petitioner got recovered a drum. It contained 100 Kilograms of lahan. After drawing the samples the drum and the sample were sealed. They were deposited in the Malkhana. Subsequently, the representative sample was sent for chemical analysis. The report revealed that it was lahan fit for distillation. This led to the filing of the challan in court.

3. The learned trial Court on appraisal of the evidence concluded that it has been established on basis of the testimonies of the official witnesses that lahan was recovered from the possession of the petitioner. Accordingly the petitioner was held guilty as referred to above followed by the order of sentence. An appeal was preferred but was dismissed by the learned Sessions Judge. It was concluded that on basis of the testimonies of the official witnesses which establishes the guilt of the petitioner, there is no ground to interfere in the impugned judgment of the trial court. As a result of the dismissal of the appeal, the present revision petition has been filed.

4. Perusal of the record shows that one Karta Ram was a public witness and had joined the police party. According to the prosecution version the recovery was effected in his presence including the disclosure statement made by the petitioner. In court the witness took a somersault assault and did not support the prosecution case. The rest of the evidence of the prosecution comprised of ASI Chaman Lal and HC Kanshi Ram. Both official witnesses did support the prosecution version. When the public witness does not support the prosecution case, extra care and caution is required while scrutinizing the testimonies of the official witnesses. It is not that no conviction can be based on the testimonies of the official witnesses but the facts of each case will have to be weighted on their own merits.

5. Merely because in the present case the official witnesses have supported the prosecution version, will not put an end to the matter. During the course of trial, the case property including the lahan had not been produced. Both the courts below took note of the fact but concluded that non-production of the same will not prove fatal. Learned Assistant Advocate General also took up the same line of argument. He urged that merely because if illicit liquor or case property was not produced, it should not prove fatal to the prosecution case.

6. The said argument is without any merit. Preserving a case property and producing it during the course of trial is of utmost importance. If the case property is perishable, the order of the court can be obtained. Otherwise, an attempt must be made to keep the propert