IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 448 of 2001. Judgment reserved on: 22.7.2008 Date of decision: 23.7.2008. State of H.P. …….Appellant Vs. Brahma Nand and Another …… Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Ansul Bansal, Additional Advocate General . For the Respondents : Mr. P.C. Sharma, Advocate. Kuldip Singh, Judge. 1. The State has filed appeal against judgment dated 5.1.2001 passed by learned Chief Judicial Magistrate, Solan in Criminal case No.57/3 of 97, acquitting the respondents under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P. 2. The prosecution case in brief is that on 23.8.1996, PW-1 Som Dutt Excise Inspector along with PW-2 Ajay Rathore and PW-4 S.K. Pundir Excise Inspectors were conducting excise checking. At about 3 PM Maruti Car bearing registration No.HR-20- 0025 was noticed at place Ochhghat, the car was signalled to stop Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… and accordingly the car stopped. The car was being driven by respondent No.1 Brama Nand and respondent No.2 Sunil Kumar was also sitting on the front seat of the car. The car was searched and was found to be illegally transporting three cartons containing liquor bottles without permit. The cartons were taken out of the car in the presence of witnesses Vikram Singh and Roop Panwar. In one carton 11 bottles of Cox Whisky, in second carton 12 bottles of Director Special and in third carton 12 bottles of Sirmaur No.1, total 35 bottles of liquor were recovered. Samples were taken in three nips. The bottles and nips were sealed with seal ‘S’ and nips and bottles of liquor etc. were taken into possession vide memo Ex.PW- 1/A. Thereafter ruka Ex.PW-1/B was sent to police station by PW-1 Som Dutt and there upon FIR Ex.PW-8/A was registered at Police Station, Solan. The police took into possession the car vide memo Ex.PW-8/B along with incriminating articles i.e. liquor bottles which the Excise Inspector produced to the police. The nips of liquor were sent for chemical analysis and after receiving report Ex.PA and on completion of investigation challan was presented in the Court. The accused were charged under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P. to which accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses. The statements of accused were recorded under Section 313 Cr.P.C. in which they pleaded their innocence. No evidence in defence was led. The learned Chief Judicial Magistrate on conclusion of the trial, acquitted the respondents, hence appeal by the State. …3… 3. I have heard the learned Addl. Advocate General for the State and Mr. P.C. Sharma, learned counsel for the respondents and gone through the record. On behalf of the appellant, it has been submitted that the learned Chief Judicial Magistrate has not properly appreciated the material on record. The prosecution has proved the case against the accused beyond reasonable doubt. The learned counsel for the respondents has supported the impugned judgment and submitted for maintaining acquittal recorded by learned Chief Judicial Magistrate. 4. The prosecution case is that three cartons were taken out from the car in presence of Vikram Singh and Roop Panwar witnesses. The prosecution has examined Vikram Singh as PW-5 but Roop Panwar the alleged witness of the recovery has not been examined. Ex.PW-1/A is the recovery memo of liquor which is allegedly signed by Vikram Singh. PW-5 Vikram Singh has stated that many persons were present near the liquor vend and the vehicle. He was simply told that liquor bottles were recovered. He did not support the prosecution and was declared hostile. He was cross- examined by the prosecution but nothing favourable to the prosecution was extracted in his cross-examination. The recovery memo Ex.PW-1/A was not signed by Roop Panwar nor he has been examined. PW-1 Som Dutt Sharma has stated that after the recovery of liquor they sent their peon and called two persons. It appears that the said two persons are none but the alleged witnesses of recovery namely Vikram Singh and Roop Panwar. In other words, …4… it is reasonable to infer from the prosecution case that alleged recovery was made earlier and the witnesses of the recovery were called later on, therefore, no reliance can be made to such recovery which is reflected in recovery memo Ex.PW-1/A. Therefore, recovery of three cartons consisting 35 bottles of liquor from respondents lying in the car has not been proved. The learned Chief Judicial Magistrate has considered the statements of Excise officials but has recorded a finding that recovery of liquor has not been proved beyond reasonable doubt and he extended benefit of doubt to the respondents. In the facts and circumstances of the case the inference drawn by the learned Chief Judicial Magistrate can not be said to be wrong or perverse. The learned Chief Judicial Magistrate has properly appreciated the material on record and has rightly acquitted the respondents. No case for interference has been made out. Resultantly, the appeal is dismissed. ( Kuldip Singh ) Judge. July 23 , 2008 (sks)