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1978 Supreme(P&H) 63
PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia and J.M.Tandon JJ.
Kartar Singh
Versus
State
Criminal Revision No. 639 of 1973,
Decided On : MARCH 29, 1978
Expert testimony is not mandatory to prove the contents or ingredients of lahan under the Punjab Excise Act.
Headnote:
PUNJAB EXCISE ACT - SECTION 3(13-A), 61(1)(C) - PROOF OF LAHAN - EXPERT TESTIMONY NOT MANDATORY - SUFFICIENCY OF EVIDENCE - SECTION 45 OF THE INDIAN EVIDENCE ACT - APPLICABILITY - SRI CHAND BATRA V/S. STATE OF U.P. (1974 SC) FOLLOWED - GARDAWAR SINGH V/S. STATE OF PUNJAB (1975) AND RAGHBIR SINGH V/S. STATE OF PUNJAB (1976) OVERRULED.
Fact of the Case:
The petitioner was convicted under Section 61(1)(c) of the Punjab Excise Act for possessing a working still. The prosecution relied on the testimony of an Excise Inspector who tested the recovered liquid and opined that it was lahan (wash). The petitioner challenged the conviction on the ground that the Excise Inspector was not an expert and had not explained the type of training he had received or the details of his experience in testing lahan.
Finding of the Court:
The court held that the testimony of the Excise Inspector was sufficient to prove that the recovered liquid was lahan. The court noted that the Excise Inspector had specified the ingredients of the liquid and its condition, and that his testimony was not challenged by the petitioner. The court also held that expert testimony is not mandatory to prove the contents or ingredients of lahan, and that the prosecution can bring in an ordinary witness to satisfy the requirements of Section 3(13-A) of the Punjab Excise Act.
Issues: 1. Whether expert testimony is mandatory to prove the contents or ingredients of lahan under the Punjab Excise Act? 2. Whether the testimony of the Excise Inspector was sufficient to prove that the recovered liquid was lahan?
Ratio Decidendi: 1. Expert testimony is not mandatory to prove the contents or ingredients of lahan under the Punjab Excise Act. 2. The testimony of the Excise Inspector was sufficient to prove that the recovered liquid was lahan because: a. He specified the ingredients of the liquid and its condition. b. His testimony was not challenged by the petitioner.
Final Decision: The revision petition was dismissed, and the conviction and sentence imposed on the petitioner were maintained.
S.S.SANDHAWALIA, J.
1. The correctness of the view expressed in two single Bench decisions of this Court reported as Gardawar Singh V/s. State of Punjab, 1975 Chand LR (Cri) 246 and Raghbir Singh V/s. State of Punjab, 1976 Chand LR (Cri) 81 (both by the same learned Judge) has been challenged before us in this reference primarily on the ground that the observations therein run counter to those made by their Lordships in Sri Chand Batra V/s. State of U.P., AIR 1974 SC 639 : (1974 Cri LJ 590).
2. Kartar Singh petitioner was brought to trial under Section 61 (1) (c) of the Punjab Excise Act for being in possession of a working still and was convicted by the Judicial Magistrate I Class, Zira and sentenced to the minimum punishment provided under the law, namely, six months rigorous imprisonment, and a fine of Rs. 200.00 on the 21st of Dec. 1972. The conviction and the sentence of the petitioner were upheld and his appeal dismissed by the Additional Sessions Judge, Ferozepur, vide his detailed judgment of the 17th of July, 1973. The petitioner thereafter preferred the present revision petition.
3. It is unnecessary to delineate the facts in any great detail because the issues agitated before us are primarily those of law. The case in hand is typical of the recovery of a working still. In consequence of a secret information received, the petitioner was apprehended by a police party whilst distilling illicit liquor towards the north-eastern side of his village Daulewal. At that particular moment he was feeding the fire under the hearth and was apprehended at the spot and the still was dismantled and cooled. Apart from other instruments of distillation, about 60 kilograms of lahan (wash) in a drum are alleged to have been recovered from his possession. P. W. 2 Gurdial Singh, Excise Inspector who was accompanying the raiding party on the 28th of Sept. 1971 tested this lahan (wash) and recorded a report which was subsequently proved as Exihibit P. D. during the trial. This deserves notice in extenso:-
"I have tested the contents of the drum boiler recovered from the above-mentioned accused while he was working the still. I find it mixture of gur, water and kikar barks. Its smell is alcoholic, taste is bitter sour and colour is dark brownish. It is fully fermented lahan (wash) which has been partly distilled and is still fit for further distillation. The lahan is about 60 Kgs. After the test the drum boiler is sealed with the seal GS. I am distillery trained".
4. Whilst in the witness-box P. W. 2 Gurdial Singh further deposed that he was distillery trained and has an experience of 13 to 14 years and further that he had occassion to test lahan (wash) in innumerable cases. In a lengthy cross-examination directed against him by the counsel for the petitioner, the competency of the witness to opine about the lahan (wash) was not even remotely challenged nor was any issue joined regarding the composition or the strength of the liquid allegedly recovered from the petitioner. This was particularly so in the context of the defence taken on behalf of the petitioner that no recovery whatsoever was made from him and that he had been called along with some other persons from his village and falsely implicated in the case. Equally in this context it deserves notice that no contention was raised before the trial Court that the contents of the drum did not contain lahan. Both in the grounds of appeal before the Additional Sessions Judge, Ferozepur as also in the grounds of devision in this High Court, no such point either expressly or impliedly was raised that the liquid recovered was something other than lahan (wash).
5. However, when the case came up before me sitting singly, learned counsel for the petitioner relying on Gardawar Singh V/s. State of Punjab (1975 Chand LR (Cri) 246) and Raghbir Singh V/s. State of Punjab (1976 Chand LR (Cri) 81) (supra) contended that P. W. 2 Gurdial Singh, Excise Inspector should have elucidated in detail the
