IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 595 of 2003 Decided on : 15.06.2010 State of H.P ..…Appellant. Versus Mohan Lal and others …… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Anil Jaswal, Dy. Advocate General. For the respondents : Mr. Ramakant Sharma, Advocate V.K. Sharma, Judge (Oral) The State is in appeal against the judgment of acquittal dated 1.8.2003, of the learned Chief Judicial Magistrate, Hamirpur, H.P., whereby, the respondents herein, who were accused before the learned trial Court and shall here-in-after be referred to as such, were tried for the offence under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh and were ultimately acquitted. 2. In brief, the case of the prosecution is that on 13.6.2000, at about 11.30 P.M, while on patrol duty, a police party headed by HC Amar Singh, was present at Manpul. In the meantime, a secret information was received from a reliable source that after a while Maruti Van No. HP-02-5537, being driven by A-1 1Whether reporters of the local papers may be allowed to see the judgment?Yes. 2 Mohan Lal was about to come there from Bangana-Dhaneta side towards Nadaun. It was further revealed that A-2 Jagir Singh and A-3 Pritam Chand were also travelling in the said van. The incriminating information was that a consignment of country liquor Una No.1 comprising of 160 pouches of 750 ML each and 190 pouches of 180 ML each was being smuggled in the said van without any permit. In case, the aforesaid vehicle was intercepted the contraband, i.e country liquor could be recovered. On the basis of this information rukka Ex.PW-9/B was sent, on the basis of which FIR Ex.PW-9/A was registered at P.S. Nadaun. 3. The further case of the prosecution is that the aforesaid information proved to be true and after sometime the van reached Manpul. It was signalled to stop by the police, but the driver did not pay any heed to the signal and sped away. The raiding party which also included independent witnesses PW-2 Shri Tara Chand and Kamlesh Kumar (not examined) chased the aforesaid van in a private vehicle. It is alleged that at Bharmoti Chowk the accused turned the van towards Harminder Mandayala road, which ultimately turned turtle at Harminder Mandayala Chowk near Gagaal. On seeing the police, A-1 Mohan Lal and A-2 Jagir Singh ran away under the cover of dark. However, A-3 Pritam Chand was apprehended. He could not produce any permit/licence for transportation of the liquor in the van. Consequently, the aforesaid country liquor being carried in the 3 van was seized by the police. Three samples were drawn out of the same for chemical analysis. The bulk of liquor was put in bottles. The samples and the bulk were sealed with seal bearing impression ‘H’. The seal impression was also prepared. The proceedings relating to search and seizure of the recovered country liquor were carried out vide memo Ex.PW-2/A. 4. On completion of investigation, charge-sheet for the offence under Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of H.P. was laid against the accused persons. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined eleven witnesses in all. 5. On close of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure, 1973. Their case in defence was that of denial simpliciter, innocence and false implication. However, they did not lead any evidence in defence. 6. I have heard the learned Deputy Advocate General for the appellant-State and learned counsel for the accused and perused the record. 7. The learned trial court has acquitted the accused mainly on the grounds that there is a material contradiction in the testimonies of the two most material witnesses for the prosecution, namely PW-2 Shri Tara Chand, the independent witness and PW-11 H.C Uttam Singh, the Investigating Officer. 4 There is no satisfactory evidence to establish the identity of the accused particularly A-1 Mohan Lal and A-2 Jagir Singh, being the culprits. The very presence of PW-2 Shri Tara Chand, who was a chance witness, on the spot at the material time is doubtful. 8. A perusal of rukka Ex.PW-9/B reveals that the names, parentage and addresses of the accused, as also particulars of the aforesaid van formed part of the secret information received by PW-11 H.C Uttam Singh and as such the same were incorporated therein. The incident is stated to have taken place during mid-night. 9. Against the above backdrop, it has not been satisfactorily explained as to how either PW-2 Shri Tara Chand or PW-11 H.C Uttam Singh could have identified the accused, who were allegedly driving/travelling in the aforesaid van alongwith country liquor being carried therein without permit and more so when the allegation is that on being signalled A-1 Mohan Lal had not stopped the van and had instead sped away and thereafter he along with A-2 Jagir Singh had run away under the cover of dark. 10. Though as per PW-11 HC Uttam Singh recovery memo Ex.PW-2/A was prepared on the spot, yet PW-2 Shri Tara Chand has stated during cross examination that it was prepared in the Police Station where he along with the other independent witness namely Kamlesh Kumar had signed the same. However, as 5 already noticed said Kamlesh Kumar has not been examined by the prosecution. In such situation, this contradiction cannot be lightly over looked. 11. According to PW-2 Shri Tara Chand, at the time of the alleged occurrence he was coming from Hoshiarpur and had alighted at the bus stop at Manipul and was looking for a vehicle to go to his house. Thus, he was a mere chance witness and when the aforesaid contradiction as to the place of preparation of recovery memo Ex.PW-2/A is considered in the light of this aspect, his very presence on the spot at the given time has been rendered highly doubtful. 12. For the reasons stated here-in-above, I do not find any lawful cause or basis for any interference with the impugned judgment of acquittal dated 1.8.2003. The appeal is accordingly dismissed. (V.K. Sharma) Judge. 15th June, 2010. Lsp*