IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.416/2001 Reserved on.19.5.2008 Decided on.:20.6.2008 State of Himachal Pradesh …Appellant. Versus Raghubir Singh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondents : Mr. Rakesh Jaswal, Advocate. Rajiv Sharma, J. The respondents were prosecuted in criminal case No. 54/3 of 2000 for offences punishable under section 61 (1) (a) of the Punjab Excise Act in the court of Chief Judicial Magistrate, Sirmaur District at Nahan and were acquitted on 13.3.2001. The State has filed this appeal against the judgment dated 13.3.2001. The prosecution case in brief is that when the Police Patrolling party led by Sub Inspector Gambir Chand (PW-7) was present on patrolling/traffic checking at Dosarka on 21.2.2000 at about 4.45 P.M., one jeep bearing No. HR-31A-9595 came from Kala Amb side which was stopped for checking and when the jeep was checked, five boxes of English wine Red Knight whisky were recovered and the accused persons could not produce any valid excise permit for transporting the 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 English liquor. The boxes were sealed with seal ‘T’ and taken into custody vide recovery memo Ex.PW-2/A. The specimen seal impression was also taken on a piece of cloth and the seal after its use was handed over to witness Suresh Kumar. The jeep bearing No. HR-31A-9595 was also taken into custody vide recovery memo Ex.PW-2/B. The Investigation Officer also sent a ruka Ex.PW-7/B to the Police Station, Nahan against the accused persons. The investigation was carried out. The challan was put in the trial court under section 61 (1) (a) of the Punjab Excise Act. The respondents were examined under section 313 of the Code of Criminal Procedure. The trial court acquitted the respondents on 13.3.2001. Mr. Rajinder Dogra, Additional Advocate General had strenuously argued that the prosecution has proved its case and the judgment of the trial court dated 13.3.2001 is not sustainable in the eyes of law. Mr. Rakesh Jaswal, Advocate appearing on behalf of the respondents had supported the judgment dated 13.3.2001. I have heard the learned counsel for the parties and have gone through the record of the case. The jeep was checked at 4.45 P.M. on 21.2.2000 at Dosarka. The prosecution has not associated any independent witness at the time of recovery of five boxes of English wine Red Knight whisky. Dosarka is a busy road and the prosecution should have associated independent witnesses at the time when the search of the jeep was carried out and five boxes were taken into custody. There are material contradictions in the statements of PW-2 Hari Chand and PW-3 HC Suresh Kumar with regard to their arrival on the spot and departure 3 to the Police Station and back to the spot. PW-7 S.I. Gambir Chand has investigated the matter. He has stated that they proceeded from the Police Post towards the spot at 3.45 P.M. in the bus. Initially he has stated that they did not purchase the tickets of the bus, but thereafter stated that tickets were purchased by them. He has admitted that no independent witness was associated by them at the spot of apprehension. The trial court has come to a just conclusion that Dosarka is a busy place and if the prosecution had made earnest efforts, independent witnesses could be associated at the time of apprehension of the jeep and when five boxes of English wine Red Knight whisky were recovered from the jeep. The trial court on the basis of correct appreciation of evidence has rightly acquitted the respondents. The cumulative effect of the above discussion is that the prosecution has failed to prove the case against the accused persons and they have rightly been acquitted by the learned Chief Judicial Magistrate, Sirmaur District at Nahan vide judgment dated 13.3.2001. Consequently, there is no merit in the appeal and the same is dismissed. The bail bonds are cancelled and sureties are discharged. June 20, 2008. ( Rajiv Sharma), Judge *Awasthi*