IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 176 of 2001 Date of Decision: 20th March, 2008. State of Himachal Pradesh Appellant. Versus Pritam Chand Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Ms. Shubh Mahajan, Dy. Advocate General. For the respondent: Mr. Ashwani K. Sharma, Advocate. Sanjay Karol, J. (Oral) The present appeal arises out of judgment dated 26.9.2000 passed by Judicial Magistrate, Ist Class, Court No.II, Amb, District Una, H.P. in Case No. 4-III/99, titled as State vs. Pritam Chand, acquitting the accused of the charged offence. As per the case of prosecution, on 14.11.1998 at about 5 p.m., police officials SI Ajay Rana (PW-7) and HC Jeet Singh (PW-8) were crossing Main Bus Stand, Chintpurni. They noticed the accused carrying a bag on his head. The accused tried to flee and on suspicion he was apprehended and searched by PW-7. It was so found that the accused carrying 90 pouches of 200 ml. country made liquor of Brand Una No.I without any permit. Rukka Ext.PW-7/A was sent to Police Station Amb Whether the reporters of Local Papers are allowed to see the Judgment? 2 and based on the same, FIR dated 14.11.1998 (Ext.PW-7/B) was registered with Police Station Amb, District Una, H.P., under Section 16(1) of Punjab Excise Act as applicable to the State of Himachal Pradesh. The contraband was seized vide Seizure Memo Ext.PW-6/A in the presence of Shri Subhash Chand (PW-6). The three sealed sample pouches were sent for Chemical Analysis and report (Ext.PY) was obtained. With the completion of investigation, challan was presented in the Court for trial. The accused was charged for an offence under Section 61(1)(a) of Punjab Excise Act as applicable to Himachal Pradesh, to which he did not plead guilty and claimed trial. In order to prove its case prosecution in all examined 8 witnesses and statement of accused under Section 313, Cr.P.C. was also recorded. Considering the material on record, the Court below came to the conclusion that prosecution has failed to prove its case beyond reasonable doubt as sole independent witness Subhash Chand (PW-6) did not support the case of the prosecution and the version of two police officials Ajay Rana (PW-7) and Jeet Singh (PW-8) did not inspire confidence as they materially contradicted themselves. I have heard the learned counsel for the parties and also perused the record. From the version of Surinder Kumar (PW-1), Dina Nath (PW-2), Mangat Ram (PW-3), Mehar Chand (PW-4), Amar Singh (PW- 5), it is clear that sealed sample of the contraband was sent for Chemical 3 analysis and the report thereof was obtained by the Investigating Officer. All these witnesses are police officials. Subhash Chand (PW-6) is the only spot witness and as per his version liquor was not recovered and nothing happened in his presence According to him, Memo (Ext.PW-6/A) was not written in his presence and he had only signed blank documents at the instance of the police. He was declared hostile and cross-examined but has not supported the prosecution version and from his testimony nothing emerges which would show the complicity of the accused with the commission of the crime. The recovery in question is rendered doubtful. This leaves us with the statement of remaining witnesses SI Ajay Rana (PW-&) and HC Jeet Singh (PW-8). No doubt these witnesses have supported the case of the prosecution, but, however, a careful scrutiny of these witnesses would show that there is a material contradiction with regard to search being carried out by the said witnesses. The contradiction goes to the root of the matter. According to the story of the prosecution, the accused was searched by PW-7 and on search it was so found that he was carrying the contraband in question. As per the version of PW-8, it was PW-7 who had carried out the search, but as per the version of PW-7, he did not carry out any search on the accused. In the present case, it is the recovery of contraband, which is in issue. Therefore, the prosecution story appears to be doubtful and the statement of these witnesses cannot be said to be trustworthy and relied upon to convict the accused in the absence of any corroborative evidence. Both PW-7 and PW-8 have admitted that incident took place at a busy place, near the Bus Stand, Chintpurni, where there are 4 many shops. Pradhan, Up-Pradhan, Punch, Numberdar or any other member of the general public were not associated with the investigation. There is no explanation on record as to why no other independent person was associated with the investigation at the relevant time. Further, it has come on record that the contraband was seized vide Ext.PW-6/A, which was witnessed by Subhash Chand and Raj Kumar. Admittedly, even Raj Kumar, has not been examined by the prosecution. From the aforesaid discussion, it is clear that the prosecution has failed to prove the guilt of the accused in the commission of the charged offence, beyond reasonable doubt. Accused has had the advantage of having been acquitted by the Court below. The Court below has considered the material in its entirety and there is no perversity in the same. The appeal is accordingly dismissed. Bail bonds are discharged. 20th March, 2008 (Sanjay Karol) (C) Judge.