Harnam Singh, J.
1. Sahib Singh was convicted under Section 61(1)(a), Punjab Excise Act, 1914, hereinafter referred to as the Act, and sentenced tosuffer rigorous imprisonment for six months. Indeciding the case the Magistrate ordered SahibSingh to execute a bond in a sum of Rs. 1,000/-with one surety in the same amount under Section 69-Aof the Act for a period of one year, or to suffersimple imprisonment for the same period in default. In the appellate proceedings the Court hasupheld the conviction of Sahib Singh and thesentence imposed upon him. Sahib Singh appliesunder Section 435, Criminal P. C. for the revision ofthe order passed on appeal.
2. shortly put, the facts are these. On 9-11-1952, Pandit Raja Ram, Excise Sub-Inspector P, W. 1, organized a raiding party consisting of Dewan Hukam Chand, Assistant Sub-Inspector P. W. 5, Dalip Singh, Head Constable, Amar Singh driver, and Ujagar Singh of Kotbudha. In village Talwandi Virk, Barkat Chaukidar P. W. 3 joined the raiding party. Reaching village Talwandi Virk Pandit Raja Ram interrogated Sahib Singh who gave information that he had kept under 'parali' in his courtyard a mut containing 'lahau' and that he had buried two 'muts' containing lahan outside the courtyard. Sahib Singh went to the 'parali' in the courtyard and from there produced 'mut'. Ex. P-1, containing 27 seers of 'lahan'. Sahib Singh then went to a place which was outside the courtyard and dug out two 'muts', Exs. P-2 and P-3. Exhibit P-2 contained throe seers of 'lahan' while 'mut', Ex. P-3, v/as empty and smelt of 'lahan'. Pandit Raja Ram tested the contents of 'muts', Exs. P-1 and P-2, and from taste, colour, smell and other observations found them to contain 'lahan'.
3. In Court Pandit Raja Ram P. W. 1, Ujagar Singh P. W. 4 and Dewan Hukam Chand P. W. 5 gave evidence for the prosecution. Amar Singh P. W. 2 was tendered for cross-examination but was not cross-examined. Barkat P. W. 3 gave evidence that no 'lahan' was recovered from the possession of Sahib Singh. On the request of the Prosecuting Sub-Inspector the Court allowed him to cross-examine Barkat.
4. In the examination under Section 342, Criminal P. C., the accused pleaded :
'The pitchers were brought from a field near the village. The police party wrongly planted these pitchers upon me. All the respectables including Earkat chaukidar refused to attest the recovery memo, because it did not represent the truth. The thumb-impression of Barkat on recovery memo, is also a bogus one.'
Mula Singh 'lambardar' D. W. 1 and Buta Singh 'lambardar' D. W. 2 gave evidence in defence.
5. Ujagar Singh P. W. 4 belongs to village Kotbudha, situate at a distance of eight miles from Dhariwal and four miles from Talwandi Virk. In cross-examination Ujagar Singh stated that some persons of Talwandi Virk and Ratowal were present when the recoveries were made but no one from that village has given evidence for the prosecution. In cross-examination Ujagar Singh stated that he could not tell for 'what particular business he had gone to Dhariwal.
6. Pandit Raja Ram gave evidence that no 'lambardar' of the village was present as there was no 'lambardar' in that village. Mula Singh D. W. 1 and Buta Singh D. W. 2 are 'lambardars' of village Talwandi Virk. From the evidence given by Pandit Raja Ram and Assistant Sub-Inspector Hukam Chand it appears that no one from the village excepting sahib Singh accused and Barkat Chaukidar was present at the time of the recovery. Ujagar Singh P. W. 4 gave evidence that some persons of Talwandi Virk and Ratowal were present when the recoveries were made.
7. Mula Singh D. W. 1 'lambardar' of village Talwandi Virk and Buta Singh D. W. 2 'lambardar' of that village gave evidence that three muts, Exs. P-1 to P-3, were not recovered in consequence of the information given by Sahib Singh accused.
8. In deciding the appeal the Court said :
'The accused has in support of his innocence examined two witnesses and tendered one for cross-examination. D. W. 1 Mula Singh is 'lambardar' of Virk and Buta Singh D. W. 2 is 'sarpanch' of the village 'panchayat'. Without casting any reflection on their respectable position I think that being the co-villagers of the accused they are simply out to oblige him, it is a notorious fact that in villages where illicit distillation is carried on at a large scale there is a common desire amongst the villagers to protect each other. The statements of the D. Ws. do not therefore in my opinion refute the prosecution allegations against the accused.'
In another portion of the judgment the Court said :
'Another significant fact about the testimony of these two defence witnesses is that they have admitted that although they were asked by the police to attest the recovery memo, they did not do so. If this was true there was no reason for Barkat Chaukidar also to have attested the recovery memo.'
9. On 26-12-1952, Sahib Singh applied that the thumb impression of Barkat appearing on the memo, Ex. P-B, may be sent for examination to the Government Expert at Phillaur. On that application the Magistrate ordered : . 'For consideration to be put up tomorrow.' No order was passed on that application. In these circumstances it could not be said with certainty that the memo, Ex. p-B, bore the thumb impression of Barkat Chaukidar.
10. In considering the evidence given by Barkat chaukidar p. W. 3, Mula Singh 'lambardar' D. W. 1 and Buta Singh 'lambardar' D. W. 2 the provisions of Sections 52 and 68 of the Act have to be borne in mind.
11. Section 52 of the Act provides inter alia that every 'lambardar' and every village watchman in whose village there shall be manufacture or illegal import or collection of any intoxicant not licenced under the Act or unlawful cultivation of plants from which an intoxicating drug can be produced, shall be bound, in the absence of reasonable excuse, to give notice of the same to a Magistrate or to an officer of the excise, police or land revenue department as soon as the fact comes to his knowledge. Section 68 of the Act provides penalty for an intentional omission to give notice of the manufacture or illegal import, or collection of any intoxicant not licensed under the Act or unlawful cultivation of plants from which an intoxicating drug can be produced, to the Magistrate or to an officer of the excise.
12. By notification No. 3096-R dated 21-12-1933, Land Revenue Rule 16(ii) dealing with the grounds for the dismissal of headman was amended by the addition of Clause (ii) (d). That clause reads :
'(ii) (d) A headman may be dismissed when there is reason to believe that he has taken part in, or concealed illicit distillation, or the smuggling of cocaine, opium, or 'charas'.'
Not a syllable of evidence is to be found on the record showing any connection whatsoever between Sahib Singh accused on the one side and Mula Singh and Buta Singh on the other side. In my opinion, the Court of Appeal was not justified in discarding the evidence given by Mula Singh and Buta Singh on the short ground that being the co-villagers of the accused they gave evidence' to oblige him.
13. For the foregoing reasons I do not think it safe to act on the evidence given by Pandit Raja Ram. Assistant Sub-Inspector Hukam Chand and Ujagar Singh and find the recovery of the 'muts'. Exs. P-1, P-2 and P-3, from the possession of Sahib Singh accused to be doubtful.
14. In the result, I allow Cri. Revn. No. 170 of1953 and acquit Sahib Singh. The order passedunder Section 69-A of the Act is also set aside. SahibSingh, who was released on hail on 19-3-1953, neednot surrender to his bail bond.