IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 369 of 2003 Date of decision: 22.06.2010 State of H.P. ... Appellant Versus Purshottam Singh and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Dushyant Dadwal, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate Ist Class, Court No. 2, Palampur, dated 29.5.2003, vide which the respondents were acquitted of the charge framed against them under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P., hereinafter referred to as ‘the Act’. 2. Briefly stated, the prosecution case is that on 26.6.1999, at about 8.15 A.M., PW-3 S.I. Pritam Singh, SHO Police Station, Lamba Gaon, was present in the area of Harsi alongwith other police officials. He received a secret information that both the respondents deal in illicit liquor, which is available in their shops. On this, he prepared Memo Ext.PW3/A, sent the same for registration of FIR, on 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 which FIR Ext. PW3/B was registered. He formed a raiding party and associated three independent witnesses, namely, Smt. Rani Devi, Smt. Sarkla Devi and Rajesh Kumar, effected the recovery, conducted search of the shops of the respondents and recovered 59 bottles of whisky of different quality. Six samples were taken out of these bottles. After completion of the investigation, the challan was filed before the learned trial Court under the section mentioned above, who tried the respondents, leading to their acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution had examined six witnesses to substantiate their case. PW-3 S.I. Pritam Singh is the Investigating Officer in this case, who has stated that he was present in the area alongwith H.C. Sandeep Kumar, LHC Hari Krishan and Ravinder Kumar HHG, formed a raiding party, conducted the search and recovored bottles of liquor. In the cross-examination, he denied the suggestion that both the respondents were not present there at the shop or that the liquor belonged to one Prem Singh, who had been made to run away from the spot by him. The Investigating Officer had associated three witnesses including Rani Devi, Pradhan of the Gram Panchayat, who has been examined as PW-1. However, when examined, she stated that no search was conducted of the shops of the respondents in her presence nor any recoveries were effected. She was a respectable of the area but has not supported the prosecution story in regard to the recovery of the bottles of liquor. She was declared as hostile and was allowed to be cross-examined. Other independent witness, namely, 3 PW-2 Sarla Devi also when examined denied that any search was conducted in her presence or any recoveries were effected. There was specific suggestion to the Investigating Officer S.I. Pritam Singh that both these witnesses were associated after the recovery of bottles of liquor but it was denied by the witness. However, both the witnesses examined have not supported the prosecution story and there is nothing on record to show as to the reasons why they will support the accused or favour them by deposing falsely. 5. The other member of the raiding party was PW-5 HC Sandeep Kumar, who has stated that he conducted part of the investigation and recorded the statements of the witnesses and arrested the accused. According to PW-3 S.I. Pritam Singh, H.C. Sandeep Kumar was present alongwith him at the time he received the secret information, but he has not stated anything in regard to the recovery effected, which was made in his presence. In the facts and circumstances of the case, the solitary statement of the Investigating Officer PW-3 S.I. Pritam Singh not corroborated by the independent witnesses or other police officials accompanying him cannot be relied upon to hold that the prosecution case was proved beyond any reasonable doubt. PW-5 H.C. Sandeep Kumar further admitted that both the accused persons were not present there but had stated that they had run away, which clearly shows that recoveries were not made from the conscious and exclusive possession of the respondents at that time. 6. The net result of the above discussion is that the findings record by the learned trial Court holding that the prosecution has failed 4 to prove their case beyond any reasonable doubt cannot be termed as perverse, calling for an interference by this Court. 7. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), June 22, 2010 Judge (BSS) 5