IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.229 of 2001 Reserved on 8.1.2008 Date of decision 11.1.2008 State of H.P. Appellant Versus Rakesh Bali and another Respondents Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant: Mr.M.A.Khan with Ms.Meenakshi Sharma, Deputy Advocate Generals. For the respondents: Mr. Vikas Rathore, Advocate vice counsel. Rajiv Sharma,J. The respondents were prosecuted in Criminal Case No.1-III/2000 under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh in the court of Judicial Magistrate Ist Class, Court No.1 Dharamshala and were acquitted on 9.11.2000. The State has filed the present appeal against the acquittal of the respondents. The facts in brief as culled out from the judgment of the trial court are that on 14.8.1999 when the police officials were on patrolling and Nakabandi duty at National Highway No.20 near Police Station at about 11.25 one Maruti van without number (applied for) came from Rait side which was stopped by the police officials. The driver disclosed his name Anil Kumar and another person was Rakesh Kumar. It was found on checking that in the van there were ten boxes of country made liquor. A sample nip was taken out from each of the boxes. These were sealed with seal ‘D’ and seal after use was handed over to LHC Rajinder Kumar. The FIR Ex.PW-4/A was registered against the accused persons. The 1 Whether reporter of local papers is allowed to see the judgment? No. 2 accused pleaded not guilty and claimed trial. The prosecution in order to substantiate its case examined as many as six witnesses. The accused were examined under Section 313 Cr.P.C. The trial court acquitted the accused on 9.11.2000, hence this appeal. Mr. M.A. Khan, learned Deputy Advocate General had strenuously argued that the prosecution has proved the case against the accused. He then contended that the trial court had failed to appreciate the evidence brought on record. Mr.Vikas Rathore appearing vice learned counsel for the respondent had supported the judgment of the court below. I have heard the learned counsel for the parties and have also gone through the record carefully. PW-1 is HC Rajinder Singh. He has stated that he along with other colleagues was on Nakabandi duty in front of the police station Shahpur. The police intercepted the van coming from Rait side. On checking the van 10 boxes of country made liquor were recovered from the van. He has admitted in his cross-examination that in front of the Police Station there are 15-20 shops and about 40-50 houses and responsible persons are also residing there. He has also admitted that house of Vice President of Panchayat is adjoining to the Police Station. He further admitted that night buses also stop at Shahpur and they use to take dinner there and 2-3 dhabas remain open through out the night. He has admitted categorically that if the S.H.O. had desired to examine the independent witnesses they could be associated during the course of investigation. He has failed to produce the seal in the court. PW-2 has stated that ten boxes of country made liquor were deposited with him which were sealed with seal ‘D’ and he deposited the same in the Malkhana and informed about it to MHC Mohinder Singh. In his cross-examination he has testified that he has not seen the case property in the court. PW-3 has deposited the sample nip for chemical examination at Kandaghat. PW-6 is the I.O. He has admitted that adjoining to the Police Station there is a locality and shops. However, he has admitted that the buses stop on the Shahpur bus stand for taking 3 the dinner and the dhabas remain open. He has specifically admitted that he did not try to associate independent witnesses but voluntarily stated that it was night time. He has admitted that the case property which was shown in the court there was neither FIR number nor any chit was pasted on it. The witnesses have also failed to explain why the FIR was sent to the Illaqa Magistrate after a lapse of 24 hours. The prosecution has failed to associate independent witnesses at the time of the checking of the van though 40-50 houses are located near the place where the naka was put. There is also doubt about the manner in which the case property was entrusted by the S.H.O. PW-2 has stated that the I.O. had deposited the case property with him. However PW Mohinder Singh while appearing as PW-5 has stated that the I.O. had given the case property to him. PW-1 has failed to produce the seal “D” which was given by the I.O. to him. As per the contents of the charge sheet the police had recovered country made liquor, namely, Patiala Orange and Rangar Orange, but at the time of the case property being produced before the Court it has come specifically in the evidence of I.O. that there is no label on the bottles and no seal impression was available on the case property. It casts serious doubt about the recovery of the country liquor by the police. The FIR Ex. PW-4/A was registered on the intervening night of 14/15 at about 11.50 p.m. The copy of the same was received in the office of the Illaqa Magistrate on 16.8.1995 at about 11.30 a.m. The Police Station is only at a distance of 20 KMs from the office of the Illaqa Magistrate. In view of the above discussion the prosecution has failed to prove its case against the respondents and the trial court has rightly acquitted the accused. The judgment passed by the trial court calls for no interference. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. January 11, 2008(g) ( Rajiv Sharma ), J