Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.66 of 2004. Dated of Decision: August 27, 2010. ------------------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Shishupal and another. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?Yes. For the Appellant : Mr. A.K.Bansal, Addl. Advocate General. For the Respondents : Mr. Arvind Sharma, Advocate. Surinder Singh, J (oral) : Heard and gone through the evidence on record. 2. The respondents were tried and acquitted for the offence punishable under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of Himachal Pradesh. 3. In short, the prosecution case can be stated thus. On 22nd June, 2002, PW6 S.I. Sham Lal accompanied by Constables Bharat Singh, Suresh Kumar and lady constable Babita were present at Hatkoti in connection with the investigation of case FIR No.45/2002, there said SI - 2 - Sham Lal received secret information that the respondents were engaged in selling the liquor. 4. On receiving the above information, a Ruqa Ex.PW6/A was sent to the Police Station Jubbal, for registration of the case. Thereafter SI Sham Lal formed a raiding party, associated PW1 Sant Ram and PW2 Pramod Singh, as independent witnesses and raided the house of the respondents in village Pandranu and recovered 322 bottles of Indian Made Foreign Liquor (IMFL) and 42 pouches of the country liquor from one locked room, after breaking open its lock, as the keys were not produced by the respondents. Each of the recovered articles were sealed with seal impression producing the English letter “U” and taken into possession vide seizure memo Ex.PW1/A. Site plan was prepared. Statements of witnesses were recorded. 5. The case property was deposited with MHC PW7 Nek Chand on the same day and after about one month, i.e. on 21.7.2002, five bottles of IMFL and one pouch of the country liquor were sent through PW4 C. Ramesh Chand to CTL Kandaghat, for analysis. The report of the analysis is Ex.PZ. It confirmed that the bottles - 3 - aforesaid contained IMFL and the pouch was that of country liquor. 6. On the completion of the challan, it was presented in the court for the trial of the respondents. The respondents were accordingly charge-sheeted. They pleaded not guilty and claimed trial. During the trial, PW 1 Sant Ram and PW2 Pramod Singh turned hostile to the prosecution case and denied any recovery. They further stated that many tenants have been residing in the said building. 7. Significantly, PW3 LHC Balvinder Singh did not admit the presence of Shishupal respondent at the time of alleged search of his house but however, stated that the door of the room was locked and his mother refused to hand over the keys to the police. The said lock was broken open and recovery of aforesaid articles was made, but it is no where stated that the room in question was in possession of the respondents and no witnesses have been produced to prove its possession. There was also no article of the respondents lying in the room. 8. PW6 SI Sham Lal also testified that the respondent Shishupal was not present on the spot and only his mother Prago Devi was present, but she did not - 4 - hand over the keys, as such, lock was broken open. This is the evidence on record to fasten the guilt on the respondents. 9. On the critical examination of the evidence, nothing has come on the record that the room which was found locked and the recovery there from, was in the possession of the respondents, more specifically when tenants have been residing in the said building. This apart in the instant case, link evidence is also missing. 10. It is incumbent upon the prosecution to prove that from the time of recovery till examination of the offensive article in the Laboratory, the prosecution is obliged to produce the evidence that the case property was taken from the spot and deposited in the Malkhana alongwith samples of seal(s) and the sample parcels alongwith sample of seals were sent for its examination to the Laboratory, which were received intact in the Laboratory. In the instant case, there is no such evidence available on record to show as to who had deposited the case property in the Malkhana, nor this fact has been deposed by PW7 MHC Nek Chand. He simply stated that the case property was deposited with him. Further the movement of the case property is regulated by entries in - 5 - the Malkhana register. Neither the Roznamcha nor the Malkhana register were produced nor its copy proved during the trial of the case. Further after one month, said sample was sent through PW4 C. Ramesh Chand. Neither MHC Nek Chand stated that the sample of seals were sent with the sample parcel nor C. Ramesh Chand made any submissions to this effect. The Road Certificate against which the case property was taken to the Laboratory was also not placed and proved on the record to lend strength to his version. The case property was alleged to have been handed over to him on 21.7.2002 for its analysis for its deposit in CTL Kandghat, which according to him (PW4) were deposited on the same day in the Laboratory, whereas, this deposition goes against the fact on record. The case property as per the report of the analysis Ex.PZ was received in the Laboratory on 22.7.2002. Therefore, in the aforesaid circumstances, report of the analysis Ex.PZ could not be connected with the recovered articles and further it is not known as to what was found in the remaining bottles/ pouches, more specifically when no samples were drawn from each of them. 12. For the aforesaid reasons, in my opinion, the prosecution has failed to prove the case beyond reasonable - 6 - doubt against the respondents, as such, the acquittal of the respondents cannot be interfered with. The appeal is without any merits, hence, dismissed. 13. The respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of the case. Send down the records. August 27, 2010. (Surinder Singh) (Pds) Judge.