IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 454 of 2001. Judgment reserved on: 24.7.2008 Date of decision: 25.7.2008. State of H.P. …….Appellant Vs. Ashok Kumar …… Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellant : Mr. Ansul Bansal, Additional Advocate General . For the Respondents : Mr. Virender Verma, Advocate. Kuldip Singh, Judge. 1. The State has filed this appeal against judgment dated 3.3.2001 passed by learned Chief Judicial Magistrate, Solan in Criminal case No.86/3 of 2000, acquitting the respondent 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 23.7.1999, the accused was apprehended at Subji Mandi Chowk, Solan by police party headed by Inspector Hem Singh in the presence of constable and independent witnesses PW-1 Parmod Goyal and Satya Sharma when the accused was carrying a gunny bag containing liquor Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… pouches. On search of the bag, 38 pouches of country liquor Gulab Marka each 180 ml was recovered from the accused. The accused could not show any authority or permit for carrying liquor. The three pouches from the so recovered liquor were separated for purposes of sample and thereafter the said pouches were sealed with seal ‘M’ and were taken into possession along with remaining pouches vide memo Ex.PW-8/A. Thereupon ruka Ex.PW-8/B was sent to police station, on which formal FIR Ex.PW-6/A was registered. The nips of the liquor were sent to chemical examiner, Kandaghat and report Ex.PX was obtained from the chemical examiner. On completion of investigation, challan was presented in the Court and the accused was charged, to which he pleaded not guilty and claimed trial. The prosecution examined nine witnesses. The statement of the accused was recorded under Section 313 Cr.P.C. He denied the case of the prosecution. No evidence in defence was led. The learned Chief Judicial Magistrate on conclusion of the trial, acquitted the respondent, hence appeal by the State. 3. I have heard the learned Addl. Advocate General for the State and Mr. Virender Verma, learned counsel for the respondent 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 and has erred in acquitting the respondent-accused. The prosecution has proved the case against the accused by leading cogent evidence. The learned Addl. Advocate General has prayed for setting aside the impugned …3… judgment. The learned counsel for the respondent has supported the impugned judgment and has submitted that the learned Court below has rightly appreciated the material on record. 4. Ex.PW-1/A is the recovery memo of 38 pouches of country liquor Gulab Marka, 180 ml each. Ex.PW-1/A is signed by Satya Sharma and Parmod Goyal witnesses. PW-1 Parmod Goyal has stated that no recovery was made in his presence from the accused. He did not support the prosecution case and was declared hostile. He was cross-examined by the prosecution but in cross- examination he has stated that his statement was not recorded by the police. In cross-examination he again repeated that no recovery was made by the police in his presence. He has denied that 38 pouches of liquor Gulab Marka were recovered in his presence. He has denied that memo of recovery was made in his presence but he has admitted his signature on Ex.PW-1/A. In cross-examination conducted on behalf of the accused he has stated that Ex.PW-1/A was not read over to him. PW-2 Satya Sharma has also not supported the prosecution and he was declared hostile. He was cross-examined by the prosecution. He denied that 38 pouches of Gulab Marka liquor was recovered in his presence from the accused. In his cross-examination he has admitted his signature on recovery memo Ex.PW-1/A. He has stated that he is illiterate and can only sign. The recovery memo was not read over to him. PW-6 Achharpal Singh SHO has stated that on completion of investigation he submitted the challan in the Court and FIR Ex.PW-6/A is signed by …4… D.D. Sharma, SHO. PW-7 constable Jeet Ram has supported the prosecution case and has stated that 38 pouches of liquor Gulab Marka were recovered from the accused on 23.7.1998 in presence of witnesses Satya Sharma and Parmod Goyal. Out of the recovered liquor three pouches were taken out for purposes of sample and the remaining 35 pouches were sealed with seal ‘M’ in the bag. The recovery was made through memo Ex.PW-1/A. In cross-examination he has stated that he did not search the accused. PW-8 Inspector Hem Singh has stated that on 23.7.1999 at about 11.30 am, 38 pouches containing 180 ml each Gulab Marka country liquor were recovered from the accused vide recovery memo Ex.PW-1/A. Out of the recovered pouches, three pouches were separated for purposes of sample. The chemical examiner report Ex.PX was obtained. 5. The prosecution case is that 38 country liquor pouches were recovered from accused in presence of PW-1 Parmod Goyal and PW-2 Satya Sharma independent witnesses. PW-7 Jeet Ram and PW-8 Inspector Hem Singh have supported the prosecution case but the fact remains that the prosecution has come forward that the recovery was made from the accused in presence of PW-1 and PW-2. Both PW-1 and PW-2 have not supported the prosecution case. PW- 1 has admitted his signature on recovery memo Ex.PW-1/A but he has stated that Ex.PW-1/A was not read over to him. PW-2 has stated that he is illiterate and he can only sign. PW-7 Jeet Ram has stated that he did not search the accused. Similarly, PW-8 has not specifically stated that out of the police party, which particular …5… person(s) searched the accused. The prosecution case is that 38 country liquor pouches were recovered from the accused, but samples were drawn from three pouches only. There is nothing on record to show that any part of the liquor was taken from 35 pouches for purpose of sample. Therefore, it can not be said that 35 pouches were also of the country liquor. The independent witnesses of the prosecution have not supported the prosecution case, this creates doubt in the prosecution story. The learned Chief Judicial Magistrate has properly appreciated the material on record and keeping in view the facts and circumstances he extended benefit of doubt to the accused. It can not be said that the view taken by learned Chief Judicial Magistrate does not emerge from the evidence on record. No case for interference has been made out. Resultantly, the appeal is dismissed. Bail bonds discharged. ( Kuldip Singh ) Judge. July 25 , 2008 (sks)