1 HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. A. No. 30 of 2000 Reserved on: 27.02.2008 Decided on: 29.02.2008 State of Himachal Pradesh ………Appellant Versus Ashok Kumar ………Respondent Coram: The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellant: Mr. J.S. Guleria, Law Officer. For the respondent: Mr.N. K. Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the State of H. P. against the judgment of the court of learned Sessions Judge, Una, dated 07.10.1999, vide which the sentence imposed by the ld. Chief Judicial Magistrate, Una, under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh of three months and fine of Rs.500/- was set aside and the respondent was acquitted of the charge framed against him. Briefly stated, the facts of the case are that on 08.02.1991, Amar Singh, Incharge of Police Post, Haroli, alongwith other police officials was on patrolling and at about 5.30 p.m. they saw one person coming from the opposite side with a plastic canny in his hand. On seeing the police party the said person tried to run away and was apprehended by the police on suspicion and a plastic canny containing five bottles of illicit liquor was recovered from his possession. One sample was taken out and the remaining liquor was sealed with seal ‘T’ 2 and the same was sent to Chemical Examiner. On receipt of the report and on completion of the investigation, challan against the respondent, as detailed above, was filed. Respondent was tried by the trial court resulting in his conviction, which findings on appeal were set aside by the learned Sessions Judge, Una. Heard. The submissions made by the learned Law Officer for the State were that the provisions of Section 100(4) Cr. P.C. in regard to joining of two respectable and independent witnesses, apply to the case of search of a premises and not to a case of personal search since it was a case of chance recovery and as such, the findings of the learned Sessions Judge acquitting the respondent are liable to be set aside. The ld. counsel for the respondent had raised two points. Firstly, that the cany, in question, was never deposited with the M.H.C. of the Police Station and, therefore, the same cannot be linked with the respondent. The second plea was taken that the learned Sessions Judge had rightly held that two independent witnesses were not joined by the police and these findings of learned Sessions Judge, Una, acquitting the respondent on that ground cannot be termed to be perverse, calling for an interference by this Court. Coming to the first point that the cany was not deposited with the MHC, a perusal of the statement of PW-2, Bhagwan Dass, Constable shows that he was posted as M.C. Police Chowki, Haroli. He stated that on 08.12.1991, ASI Amar Singh deposited the sample bottle bearing seal ‘T’, which he had sent to Police Station through Puran Chand, Constable on 12.02.1991. The said Puran Chand was examined as PW-3, who also stated about the deposit of sample bottle. Both these witnesses did not state that the cany was also deposited or was sent to the police Station. PW-4, ASI Ramesh Chand, who was posted 3 as MHC, Haroli also deposed about the sample bottle but not did not state anything about the cany. All these witnesses are silent about the deposit of cany and further no copies of entries of Malkhana of police Station or police post were proved. Further PW-5, Incharge of raiding party had identified the cany Ext.P-1 and had stated that he had deposited the case property with Bhagwan Dass. No questions were put-forth to the Investigation Officer in regard to the deposit of the cany and or how it was produced during the trial of the case. The mere fact that the witnesses have not stated about the deposit of cany also does not lead to the inference that the report of the chemical examiner cannot be linked with the accused, particularly, when all the witnesses have duly stated that the sample bottle was deposited with the police and there was no tampering of the sample. PW-6, LHC Gurmeet Singh had clearly stated that he had deposited the sample bottle duly sealed with the Chemical Laboratory and there is report of Chemical examiner in this regard that the sample was duly received and as such the report of the chemical examiner can be linked with the respondent. The contention put forth in this regard is repelled being devoid of any force since non-mentioning of the cany by the witnesses about its deposit does not affect the merits of the case. Coming to the second plea raised by the learned counsel for the respondent. The learned Sessions Judge has clearly observed that no independent witnesses were joined inspite of opportunity to do so and no satisfactory explanation was given by I.O. as to why the independent witnesses were not joined in the raiding party. Moreover, as per the provisions of Section 100(4) Cr. P.C. two independent witnesses are required to be joined at the time of conducting the search of a premises and these provisions also apply in cases of personal search. The only precaution required to be taken is that in case the 4 Investigating Officer is able to furnish reasonable explanation that no witnesses were available who could be joined due to chance recovery. The said explanation can be considered by the Court and if found satisfactory, the same can be accepted. Section 165 Cr.P.C. also prescribes various steps to be followed for making a search. Recording of reasons is important in the matter of search and to ignore it is to ignore the material part of the provisions regarding searches. The Investigating Officer has not given any explanation for not associating any independent witnesses at the time when the accused was apprehended. On the other hand, his statement as PW-7 suggests that persons were available nearby and accordingly those persons could have been associated but he did not give any explanation for not joining though available. In such circumstances, when the Investigating Officer had not given any reason for non-compliance of the mandatory provisions of Section 100(4) Cr. P.C. and the learned Sessions Judge had acquitted the respondent mainly on that ground and, therefore, findings recorded cannot be said to be perverse, calling for an interference by this Court. Thus, no case is made out for allowing the appeal and as such there is no merit in the appeal filed by the Appellant/State of Himachal Pradesh, which is dismissed accordingly. ( V. K. Ahuja ), Judge February 29th, 2008 (brb)