IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 135 of 2010. Date of Decision: 17.8.2010. _______________________________________________ Ajay Kumar. ….Petitioner. Versus State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the petitioner : Mr.N.K.Thakur, Advocate. For Respondent. : Mr.Ramesh Thakur, Assistant Advocate General. Dev Darshan Sud, J.(Oral). The petitioner has been convicted for offences under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh and has been sentenced to undergo six months simple imprisonment and fine of Rs.5,000/-. 2. The prosecution case in brief is that PW6 SI Sh.Mohinder Singh received a call that one tempo bearing No. HP-37-9234 was parked on the road side at Gharana and three persons were quarreling with each other. According to the information, they looked like liquor smugglers. On receipt of this information he along with other police personnel proceeded to the spot. The incident took Whether reporters of the Local papers are allowed to see the judgment? . 2 place at around 12.10 a.m. On seeing the light of the police vehicle, all the three persons fled away from the spot but the petitioner was apprehended. On a search made of this tempo, 42 cartons each containing 12 bottles of country liquor was recovered from the tempo. PW6 Mohinder Singh took 12 samples from each of the cartons and sealed it with seal impression ‘M’ which was handed over to one Sh Jaimal Singh who has not been produced in evidence. Other proceedings were started thereafter. 3. The learned trial Court, on the evidence of the witnesses and more especially PW1 Dharam Chand, who proved the seizure memo Ext.PW1/A by which the tempo was seized, PW 2 HHC Prem Chand who testified about the deposits of the sample of liquour which had been sent for testing at CTL Kandaghat which samples were handed over to PW 4 Kehar Singh, who stated about the samples being sent for testing, convicted the petitioner holding that the prosecution has proved its case beyond reasonable doubt. 4. The contention raised by the defence counsel that no independent witness was present at the time of search, was rejected on the ground that at that particular point of time at night and the fact that the seizure was made near a jungle, there was no possibility of any independent witness being present. These findings have been affirmed by the learned appellate Court. While appreciating the evidence, the learned trial Court states that there are no contradictions in the evidence of these witnesses which go to 3 the root of the case and which in any manner would destroy the case put up by the prosecution. 5. I have heard Sh.N.K.Thakur, Advocate who was appointed as amicus curiae in this case by the Court as the revision was preferred by the petitioner who was in jail. 6. At the threshold, it has been urged by the learned Assistant Advocate General that it is not the domain/power of this Court to re-appreciate the evidence exercising its powers under Sections 397 and 401 of the Code of Criminal Procedure and if a finding which can be classified as a reasonable has been arrived at by the courts below, this court cannot come to a different conclusion from the evidence on record. This proposition is not disputed at all. What is required to be considered is whether the foundations/fundamental facts establishing the case have been proved on the record or not. 7. Mr.N.K.Thakur, learned counsel submits that the courts below have not at all considered the conclusions from the evidence, namely, (a) that no register showing the deposits of the seized liquor in the Malkhana of the Police has been produced on record though it has been admitted by PW4 ASI Kehar Singh that such register existed but the same has not been produced in the Court. He then submits that the road certificate showing the departure of PW2 Prem Chand along with sample of the liquor to CTL Kandaghat has not been produced though it is admitted by all the witnesses that such certificate does exist. 4 8. The next point urged by him is that seal ‘M’ which was used for sealing the sample was handed over to one Jaimal Singh who has not been produced in the Court nor Sh.Jaimal Singh examined. Interestingly, one other fact brought to the notice of this Court by the learned counsel is that 492 bottles have been produced as purported to be seized by the police but it is not clear from where they produced especially when no record was produced about the deposit of the seized liquor in the Malkhana. 9. Lastly and more importantly learned counsel submits that no attempts/efforts have been made by the police to investigate the other two persons with whom the petitioner was quarreling as also the owner of the vehicle. 10. In the totality of the circumstances, learned counsel submits that it is not a case of reappreciation of evidence but the conclusions arrived at for conviction of the petitioner which would be a perverse conclusions as a net result of the evidence produced on the record by the prosecution. 11. Adverting to the last circumstance first, I find that the vehicle was owned by PW3 Vir Bhan Chand, who submits that this was sold first to Milap Chand who further sold it to Sudershan Kumar who was supposed to be one of the accused of the case. Sudershan Kumar has been acquitted by the trial Court for reasons not clear from the judgment. Though if the version of PW3 Vir Bhan Chand is believed he was the owner of the vehicle, and the person to 5 explain as to how the liquor found in this way in his vehicle and for what purpose the vehicle had been handed over to the petitioner. The registered owner of the vehicle is PW3 Sh.Vir Bhan Chand even he has not been questioned by the prosecution on this aspect of the case. Turning to the second aspect, the custody of the liquor after seizure has not been proved on the record. The documentary evidence in the possession of the police which would establish its safe keeping has not been produced though it is admitted that such evidence existed. 12. In these circumstances nothing but an adverse inference ought to be drawn against the prosecution. The reason for not producing this evidence is not explained. On the question of seal dis-appearing after the bottles had been sealed, this Court cannot say anything save and except that these were the links/chains in the evidence which required proof from the prosecution which has been abandoned. In these circumstances, the mere statements of the police officials that the liquor was seized cannot be accepted as the other vital links in the evidence are missing. 13. Coming to the last conclusion of the learned courts below that the petitioner was in conscious possession of the liquor, I find it difficult to believe when there were three persons present on the spot and only one is charged with the conscious possession of the liquor though two other persons who standing in front of the vehicle and fled away from the spot. When the fact that the registered owner 6 himself has not been investigated by the police, there is a very grave doubt in the mind of this Court as to whether the petitioner can be convicted for the offence as alleged. 14. In these circumstances, I find that the petitioner is entitled to the benefit of doubt. This petition is accordingly accepted. The judgment of the courts below is set aside. Bail bonds furnished by the petitioner shall stand discharged. The petitioner shall be released from the custody forthwith in case he is not required in any other offence. 15. I place on record appreciation for the valuable assistance rendered to this court by Mr.N.K.Thakur, Amicus Curiae. (Dev Darshan Sud), Judge. August 17, 2010 (R)