JUDGMENT
V.B. Bansal, J.
(1) Peare Lal Sood was convicted under Section 61(l)(a) of the Punjab Excise Act as extended to the Union Territory of Delhi (for short the Act) by. a metropolitan magistrate. New Delhi on 3th November, 1977. He was sentenced to imprisonment till the rising of the court and a fine of Rs. 650.00 or in default to undergo R.I. for two months by the metropolitan magistrate on 7th November, 1977.
(2) Peare Lal filed an appeal which was disposed of by an Additional Sessions Judge, New Delhi on 29th November, 1978. The judgment of con- viction was upheld but the order of sentence was modified and the amount of fine was reduced to Rs. 250.00 .
(3) Being still not satisfied Peare Lal Sood filed the revision petition under Sections 401/397 read with Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India.
(4) Briefly stated the allegations against the petitioner have been that on 13th February, 1973 recovery of liquor was made from one Darshan Lal who on interrogation disclosed that Peare Lal President of F-4, D.S.E.N. Part-1, has been making supply of the liquor to him and some liquor may be available at his residence. Accordingly said was conducted at the house of the petitioner during the night between 13th and 14th February. 1973 when seven bottles of English liquor were recovered from under his bed. Samples were taken from those seven bottles thereafter the sample and the bottles were scaled with the seal of ‘SPH’.. Fir No. Ill of 1973 was registered with P.S. defense Colony. After completing investigation challan was filled against the petitioner. After trial be was convicted and sentenced as referred to above.
(5) I have beard Shri K.K. Sud learned counsel for the petitioner and Shri M.S. Siddiqui learned counsel for the State. I have also carefully gone through the record.
(6) A number of pleas have been taken by the petitioner in this revision petition to challenge his conviction and the order of sentence. However, I do not find it necessary to deal with all the points as the petitioner’s entitled to succeed on a very short point.
(7) Prosecution story had been that the case property was deposited with Moharrar H.C. Khushal Singh and on February 1973 the samples were sent to Cfsl and the case property was not tampered with by any one. It is not disputed that in order to succeed the prosecution has to establish on record beyond reasonable doubt that no one tampered with the case property from the time it was taken into possession till the samples were delivered at the Gfsl for Chemical analysis. In this case the prosecution examined Excise Inspector S.P. Handa (Public Witness l), S.I Hukam Chand 1:0. (Public Witness 2), Dr. Hukam Chand, public witness (Public Witness 3) and Hari Chand Juneja (Public Witness 4) Accountant. Prosecution had also place reliance upon two affidavits of Moharrar Head Constable Khushal Singh and Constable Nand Lal which were tendered in evidence by S.I. Hari Chand (Public Witness 2). A perusal of the statement of the prosecution witnesses clearly indicates that no one bad stated about the deposit of the case properly with Moharrar Malkhana and that it was not tampered with by any one after its seizure and till it was deposited with Moharrar Malkhana. Ext. Px is the affidavit of Nand Lal relied upon by the prosecution to indicate that he had deposited seven sample sealed parcels in the ‘CFSL, R.K.Puram without being tampered with by any one. I have examined affidavit Ext. Px and have no hesitation in coming to the conclusion that this can hardly be said to be an affidavit as required under law. A perusal of the affidavit shows that there are cuttings in this document which are not signed by this deponent or by the Sdm who attested this affidavit. It is, thus, not possible to say as to when the cutting was made in the aforesaid affidavit. It is also interesting to note that as per the prosecution story the scaled sample parcels were deposited in the Central Forensic Laboratory, R.K. Puram. However, the affidavit filed shows that the samples were delivered to “Sh…lncharge Excise Samples, R K. Puram New Delhi”. I fail to understand how this affidavit can be construed to mean that the samples were delivered at the Central Forensic Science Laboratory, R K. Puram. It is too well settled law that in order to succeed the prosecution has to establish the facts beyond reasonable doubt and benefit of doubt has to be given to an accused and not to the prosecution. There was nothing to prevent tin: prosecution from.examining Constable Nand Lal to clarify as to where and to whom be had delivered the sample parcels. The affidavit is ambiguous and no reliance, therefore, can be placed on it which even otherwise has not been attested as required under the law.
(8) As already discussed there is no evidence on record as to who handled the scaled parcels deposited with Moharrar Malkhana and the affidavit of Nand Lal has also to be ignored being not properly attested and being vague having unattested cuttings The prosecution has thus, failed to prove all the limits starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals of the samples remained intact throughout. It is a serious lacuna in the prosecution evidence which gives a reasonable doubt so as to enable the petitioner to claim acquittal.
(9) Learned counsel for the respondent has not been able to point out any material on record to substantiate that the .case property was not tampered with by any one till it was deposited in the CFSL. Once the report of C.F.S.L. is ignored there is no conclusive evidence to show that the petitioner was found in possession of liquor so as to contravene the provisions contained is Section 61(l)(a)of tbeAct. He is. thus, entitled to get benefit of doubt.
(10) As a result, the petition is allowed. Conviction and sentence awarded to the petitioner by the courts below are set aside. Giving him the benefit of doubt, Peare Lal Sood is acquitted. Fine, if paid, shall be refunded.