IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 455/2004 Date of decision: 21.7.2011 State of H.P. …..Appellant Versus Pritam Singh ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. A.K. Bansal Addl. Advocate General. For the respondent : Mr. Jagdish Vats, Advocate. Surinder Singh, J. (Oral) The learned trial Court acquitted the respondent for the offence punishable under Section 61 (i) (a) of the Punjab Excise Act, as applicable to the State of H.P. allegedly keeping in possession 500 pouches of country liquor (Gulab Chhap) in his shop. 2. Heard and gone through the record. 3. Briefly stated, the case of the prosecution is that on 10th September, 2002, PW9 Sub Inspector Prakash Dutt along with H.C. Mohar Singh, Constable 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Pyare Lal and constable driver Deepak was on patrol duty in the area of Bharatley. When they reached near the shop alleged to have been rented out by PW8 to the respondent, one boy ran away from the shop. The Police had already received secret information with them that respondent was involved in the selling of country liquor in his shop besides the Hotel of one Shri Chhotu. They included Govind Singh and Prithvi Raj PWs in the search operation of the shop and recovered country liquor having marka of “Gulab Chhap” which was meant for sale in Chandigarh area only. Out of the recovered quantity, 15 pouches were separated for its chemical examination. It was sealed with seal impression ‘T’. Its impression was also taken on a piece of cloth Ext. PX. The remaining bulk was also sealed. The case property was taken into possession vide memo Ext. PW1/C. A ruka Ext. PW1/A was sent for the registration of the case which culminated into FIR Ext. PW1/B. The case property was deposited in the Malkhana and the sample parcel was sent for its examination. On its examination, as per reports Ext. PX/1 to Ext. PX/III sample were found to be that of country liquor containing 50% of alcoholic strength each. - 3 - 4. During the investigation, police recorded the statements of PW8 Santosh Kumar owner of the shop. According to him he had rented out the shop in question to the respondent. 5. On completing the investigation, challan was presented in the Court for the trial of the respondent for the offences aforesaid. 6. At the end of the trial, respondent was acquitted. 7. On the perusal of the entire evidence on record, one of the regrettable features is that the prosecution could not prove its case by leading cogent and convincing evidence that the boy who is alleged to have run away from the shop was the respondent or his sales man. The entire recovery was effected in absence of the respondent. 8. PW8 Santosh Kumar did not support the case of the prosecution as such he was declared hostile. He disowned his statement Mark-X given under Section 161 of the Code of Criminal Procedure. Pertinently he stated that he had rented out his shop at the said place to the respondent where he was running Kariyana shop and besides the said shop, there was a Hotel of one gorkha who, from the date of the alleged incident was also - 4 - absconding. He completely denied that respondent was indulged in the illicit business of selling liquor. There is no evidence to link the respondent with the shop in question. Even license of the shop has not been taken into possession. The prosecution could not explain who was the person who had absconded from the shop. The independent witnesses who were allegedly associated during the search operation also did not support the case of the prosecution. A suggestion put to Investigating Officer was denied that the liquor so recovered belonged to Chhotu Gorkha (Nepali) who had abscounded. 9. In view of the aforesaid position, I do not find anything on record which could link the respondent with the offence aforesaid. As such the acquittal of the respondent cannot be interfered with. 10. The appeal sans merit and is accordingly dismissed. 11. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. July 21, 2011 (Surinder Singh), (cm) Judge.