HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 253 of 2003 Decided on: 24.6.2010 State of Himachal Pradesh ……… Appellant. Versus Kailash Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondents: Mr.M.S. Thakur, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Chief Judicial Magistrate, Shimla, dated 5.4.2003, 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. The prosecution story in brief is that on 16.7.1999, ETI Sandeep Attri was on excise checking alongwith other officials. On 17.7.1999, at about 12.05 a.m., he intercepted Jeep No.HP-13-0408 near Victory Tunnel, Shimla. On checking, it was found that there were five gunny bags in the Jeep containing 891 pouches of country liquor, each pouch having 180 ml liquor, meant for sale in Chandigarh only. Respondent Kailash Chand was the driver of the vehicle while the other two, namely, Ashok Kumar and Suresh Verma were its occupants. They could not produce any permission/license to ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - justify the carriage of the alleged recovered pouches in the said Jeep. A telephonic message was sent to Police Station, Boileauganj and H.C.Jai Singh reached the spot, completed the investigation and took 8 samples out of the recovered pouches. These samples were sent for chemical analysis and after the receipt of the report of the Chemical Examiner and on completion of the investigation, the challan was filed before the learned trial Court, who tried the respondents under the above mentioned Section leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. A perusal of the judgment passed by the learned trial Court shows that one of the ground taken for not believing the prosecution story was the contradictions in the testimony of the prosecution witnesses. One of the contradictions referred to is that as to whether the recovered pouches had already been counted before the police reached on the spot or these were counted afterwards. PW-4 Sandeep Attri has stated that before the arrival of the police, they had counted the pouches which were found in five gunny bags being carried in the Jeep. However, PW-1 Gopal Dass stated that the pouches were not counted before the arrival of the police. There was also some contradiction in regard to the time for which the party remained at the spot. These contradictions are not very material and do not affect the merits of the case. 5. However, there are some infirmities in the prosecution case which cannot be ignored. PW-4 Sandeep Attri has stated that he remained at the spot for 1/2 hour and he - 3 - left before the recovery memos were prepared. Then the question which arises is that how he could sign on the recovery memos when he had already left the place before the recovery memos were prepared by the police. Moreover, it has come up in evidence of PW-2 H.C. Jai Singh and PW-4 Sandeep Attri that there is no FIR number given on the case property produced in Court and this infirmity cannot be taken as lightly since the case property in question cannot be linked with the accused persons. 6. Apart from the above, another ground that has been taken by the learned trial Court in acquitting the accused persons is that at the spot, there were taxies parked and persons were available but no independent witness was associated at the time of recovery. The Investigating Officer did not give any explanation for non-joining of the independent witness, as is required under Section 100(4) Cr.P.C. In case he had given some explanation, the same could have been considered by the Court but he did not give any explanation for non-joining of the independent witnesses. Even PW-4 Sandeep Attri has also not given any explanation for non-compliance of the provisions of Section 100(4) of the Cr.P.C. Therefore, it is clear that no steps were taken to associate independent witnesses and as such there is no independent corroboration to the testimony of official witnesses. 7. Apart from the above, another ground which has been taken is that the provisions of Section 100(6) of the Cr.P.C. were not complied with, which provide that the copy of the recovery memo has to be supplied to the accused - 4 - persons. The word used in the said Section is “shall”, meaning thereby that these provisions are mandatory and, therefore, non-compliance of the said provisions goes as against the prosecution. 8. From the above discussion, it is clear that on the basis of the evidence led by the prosecution, some other view could have been taken by the learned trial Court, but the view which has been taken also cannot be said to be perverse, in the facts and circumstances of the case, calling for an interference by this Court. 9. 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. June 24, 2010. (V.K. Ahuja), (TILAK) Judge