IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revision No. 135 of 2002 Date of decision: 15 .5. 2009 Kishan Chand and another …..Petitioners Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. Vinay Kuthiala, Advocate, For the respondent : Mr. J. S. Guleria, Assistant Advocate General. Surinder Singh, J. (Oral). The petitioners herein were convicted and sentenced under Section 61 (i) (a) of the Punjab Excise Act as applicable to the State of H.P. for short “the Act” and were ordered to undergo simple imprisonment for a period three months and to pay a fine of Rs. 2000/- each with default clause. Their appeal was dismissed, as such the instant criminal revision petition has been filed. Shri Vinay Kuthiala, learned counsel for the petitioners argued with vehemence that the learned trial court wrongly relied upon the tainted evidence produced by the prosecution and material contradictions occurring in the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - statements of the witnesses were ignored. Further that link evidence in this case was not complete which rendered judgments of the courts below wrong and illegal. Contra, Shri Guleria, learned Assistant Advocate General while supporting the impugned judgments passed by the learned courts below submitted that evidence of the prosecution led in this case is free from any embellishment or contradictions. It was discussed in detail by the learned court and reappraised in appeal and there are concurrent findings of facts which cannot be interfered with. There are also no grounds to upset the judgment of conviction and sentence by the learned trial court and affirmed in appeal. I have considered the rival contentions of the parties and have meticulously and carefully examined the record of the courts below. In short, the prosecution case is that during the intervening night of 17th and 18th September, 2000 at about 3.10 a.m. an ‘Armada’ Jeep No. HP-09-0314 emerged from the side of ‘Pairvi Pul’. The police party headed by A.S.I. Churamani PW-6 noticed the said Jeep in odd hours of the night and signalled to stop at the point known as ‘Sanaura’ but it did not stop but sped away towards ‘Yashwantnagar’. It was followed by the police party and intercepted in the jungle at - 3 - some distance short of village ‘Neri Jagyala’. The petitioner Sanjeev Singh was found driving the said jeep whereas Kishan Chand petitioner was sitting besides him. The police conducted the search of the Jeep and recovered 20 boxes containing country liquor of ‘Sirmaur No. 1’ brand, and five boxes containing beer bottles of ‘Heck Back’ brand. The petitioners could not produce any permit and the possession of the liquor with them was more than the permissible quantity as such it was seized along with the vehicle. Out of the total 20 boxes 9 were found containing 108 pouches of 750 ml of country liquor and 528 pouches, each contained 200 ml of such liquor. The remaining five boxes were found containing 60 bottles of beer. One of the bottles of 750 ml beer, was separated and taken as a sample which was sealed with seal impression ‘N’. Two boxes having 750 ml each out of the above mentioned 108 were separated and a nip was filled up as a sample which was also sealed with the same seal impression. Three pouches of 200 ml, out of the above mentioned 528 pouches were also separated and retained as samples. Its contents were put into three bottles and also sealed with the same seal impression. As per the case of prosecution, the seal impression of seal ‘N’ was taken on a piece of clothe and the seal after its use was handed over - 4 - to constable Ravinder Kumar. The case property was taken into possession along with Jeep in question vide memo Ext. PW-1/A. Ruka Ext. PW-1/B was sent through constable Ravinder Kumar for the registration of the case. The case property was deposited in the Malkhana with MHC PW-5 Hukam Singh. The samples were sent for examination through PW-2 constable Rajinder Kumar vide RC No. 55/2000 to C.T.L. Kandaghat for its examination. The police recorded the statements of the witnesses and after receipt of the report of the chemical analyst Ext. PW-4/A, the challan was presented in the court for the trial of the petitioners. At the end of the trial, petitioners were convicted and sentenced, as aforesaid and their appeal was dismissed and that is how the present revision petition has been filed, challenging the judgments of courts below. It is incumbent on the prosecution to prove that the accused were in possession of an incriminating article or an offensive mater, before they are convicted for keeping in possession the contraband or the offensive material. Right from its recovery and taking samples, the link evidence till the samples are analyzed in the laboratory, should be complete. In - 5 - case of breach of link evidence, it gives rise to a reasonable doubt that the samples were tampered with benefit of which goes to the accused. In the instant case PW-6 A.S.I Churamani however, did not state about the deposit of the case property in the Malkhana. But, PW-5 MHC Hukam Singh stated that on 19.6.2000 A.S.I. Churamani had deposited the case property sealed with seal impression ‘N’ in the Malkhana with him. But he nowhere stated that the sample of seal was also deposited with him in the Malkhana. Even the extract of the Malkhana Register was not placed and proved on record. Thus it cannot be said that the sample of seal was also deposited in the Malkhana with him along with case property. Even PW-2 constable Rajinder Kumar also did not say about handing over the sample of seal to him when he had taken the samples for its examination to C.T.L. Kandaghat. The copy of R.C. No. 55/2000 vide which he took the sample for analysis has also not been placed and proved on record. Had it been there, it could have thrown some light on this aspect of the matter whether the sample of seal was also entrusted to him which was further handed over by him to the person who received the samples in the laboratory, for its comparison with the seal found on samples sent for analysis. - 6 - The lithographic impression on the report Ext. PW-4/A of course shows that seals on the samples were found intact and unbroken and tallied with impression seal sent separately, but it looses its importance in view of the fact that no witness has stated to have either deposited the sample seal along with case property in the Malkhana or sending it separately to the Laboratory when the samples were taken for analysis. Then how the sample of seal could be available in the Laboratory for its comparison. The lithographic stamp is mechanically put on the report. Further the case of the prosecution is that the seal after its use was given to PW-1 Ravinder Kumar but he did not say that the seal was ever entrusted to him. Thus where is the seal used on the samples, is not known. Therefore, in these circumstances a substantial doubt has arisen and the prosecution could not exclude the possibility of tampering with the samples. Thus, the link evidence in the instant case is found missing. There is no evidence on record regarding the entrustment of seal and no entry in the R.C. and Malkhana register, therefore, reasonable doubt is cast on the probity of the prosecution case, which fact was lost sight by the courts below. Therefore, in these circumstances, - 7 - the benefit of doubt should have been given to the petitioners. On reexamining the record, I find that the prosecution has failed to prove the case against the petitioners beyond a reasonable doubt, the benefit of which goes to the accused- petitioners. Accordingly the impugned judgment of conviction and sentence passed by the learned trial court and affirmed in appeal are hereby set aside, the accused-petitioner are acquitted of the charge framed against them. The fine amount, if any, deposited by the petitioners be released to them forthwith and the petitioners are discharged of their bonds entered upon at any time, during the proceedings in this case. Send down the record. May 15, 2009 (Surinder Singh),J. (cm)