IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 344 of 2002 Date of decision: 21 .4. 2009 State of H. P. …..Appellant Versus Pankaj Sood and another ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the Appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent : None. Surinder Singh, J. (oral) Respondents were acquitted by the learned trial court for the offence punishable under Section 61 (1) (a) of the Punjab Excise Act (hereinafter referred to as ‘the Act’), as applicable to the State of H.P., vide a detailed judgment, passed in criminal case No. 386/3 of 1999, decided on 22.2.2002, which has been assailed in this appeal. I have heard Shri J.S. Guleria, learned Assistant Advocate General for the State. However, neither the respondents nor their counsel had put in appearance for the respondent despite notice. Shri Guleria has vehemently argued that the learned trial court did not appreciate the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - evidence on record in the right manner but decided the case in a slip-shod and perfunctory manner. The statements of the official witnesses do fully support the case of the prosecution thus, if the evidence on record is seen and examined properly, there are chances of converting the acquittal into conviction. I have given my thoughtful consideration to the contentions so raised. In brief, the facts giving rise to the present appeal are that on 18.7.1999 A.S.I. Raj Kumar was on patrolling duty along with other police officials. At about 5.05 a.m. when they were present at Yadgar Chowk, Totu, a scooter No. HP07-1375 came from the opposite side, which was being driven by respondent Pankaj Sood and Devinder Nath was a pillion rider. He was holding a gunny bag. On getting suspicious, A.S.I. Raj Kumar checked the gunny bag in presence of an independent witness Shri Hari Nand (now deceased) and recovered three cartons of country liquor [gulab mark] each having 48 pouches (each pouche having 180 ml. contents). The respondents could not produce any permit thus, police took three pouches out of the recovered quantity and sealed the same in a piece of cloth with seal impression “H”. Remaining pouches of the liquor were sealed in the same gunny bag in which respondents were carrying liquor. The case property was taken into - 3 - possession vide recovery memo Ext. PW-1/A and Ruka Ext. PW-5/A was sent for registration of the case, on the basis of which FIR Ext. PW-3/A was formally registered. The police prepared the site plan of the place of alleged recovery. The case property was allegedly deposited with M.H.C Pramod Singh PW-3 on the same day. On 19.7.1999, the samples were sent for the chemical examination through PW- 2 Nirmal Singh on receipt of the reports of the chemical examiner, i.e. Ext. PW-5/C and Ext. PW- 5/D. The challan was presented in the court for the trial of the respondents. Finding a prima facie case against the respondents, they were accordingly charge sheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and also examined the respondents under Section 313 of the Code of Criminal Procedure. Their defense was denial simplicitor. No evidence in defense was led. At the end of the trial, respondent were acquitted. I have reappraised the evidence on record and find that the link evidence in the matter is not complete in as much as neither Investigating Officer in his statement has any where stated that he had taken the sample of seal in a separate piece of cloth or on the paper. He even did not - 4 - whisper even a single word as to whom the seal was entrusted by him after its use. The independent witness who was associated in the case was not examined as he had died. But however, Pramod Kumar PW-3 M.H.C. to whom the case property was deposited, also did not mention about the deposit of the sample of seal and its further handing over to PW-2 Nirmal Singh along with samples for its comparison by the chemical analyst. Although, there is a reference on first page of the chemical examiner report that samples were being sent along with samples of seal but its receipt is not endorsed in the Laboratory. PW-2 stated that the samples were deposited in the Laboratory on 19.7.1999 which endorsement on the report Ext. PW- 5/C and Ext. PW-5/D is also unsigned. Further, there is a lithographic impression that the seals on the samples, tallied with the specimen impression sent separately even that certificate is also unsigned. When neither the official witnesses aforesaid have deposed about the sending of the seal separately nor there is even a fleeting reference in their statements having taken the samples of seal on the spot, than by no stretch of imagination it can be presumed that the samples were sent with the sample of seal for comparison. It is well settled that the prosecution is obliged to prove that the articles recovered from the possession of the accused is a contraband - 5 - within the meaning of the Act aforesaid. For that, right from the time of recovery, till examination of the samples, link is required to be completely proved. The seals used on the samples must be intact and unbroken and the said seals should tally with the sample of the seal taken separately at the time of sampling by the Investigating officer to over rule every possibility of tampering the contents of the samples. In the instant case, this evidence is lacking which gives a reasonable apprehension in the mind of the court that samples sent could have been tampered with and the benefit of such a reasonable doubt is always given to the accused, as such, on account of the aforesaid reasoning, in my considered opinion, prosecution could not prove the case against the respondents beyond the shadow of reasonable doubt. Accordingly the appeal merits dismissal and is accordingly dismissed. Send down the records forthwith. April 21, 2009 (Surinder Singh),J. (cm)