IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 220 of 2003 Date of Decision: 12th August, 2010 __________________________________________________________ Amandeep Singh & others ….Petitioners. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. __________________________________________________________ For the Petitioners: Mr. Ramakant Sharma, Advocate. For the Respondent: Ms. Ruma Kaushik and Mr. R.K. Thakur, Addl. Advocate Generals. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioners have been convicted by both the Courts below for offence under Section 61(1) (a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 2000/-. 2. The prosecution case, in brief, is that on 16.9.1999 around 12.40 A.M. the petitioners were intercepted who were travelling in a Tata Sumo vehicle, bearing registration No. CH-1Z-4578, coming from Solan side by the police at Dedh Gharat. On search having been made, three gunny bags containing 710 pouches of liquor bearing Mark ‘Malwa’ 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 and each pouch was containing 180 Mls. of liquor were recovered. On further checking, two gunny bags were recovered on the back seat out of which one was containing 48 bottles of ‘Commando XXX Rum’ and another contained 48 bottles of ‘Bagpiper’ whisky. The petitioners were accordingly tried and sentenced by the learned Court below. 3. The appeal filed by the petitioners was also dismissed. 4. I have heard learned counsel appearing for the petitioners and also learned Additional Advocate General. 5. What is required to be noticed is that the prosecution case with respect to the seizure, taking of sample and sealing etc. is based on the evidence of PW1 Chaman Lal an independent witness, PW2 Bhupender Sharma, PW5 Heera Lal and PW6 Sewa Singh. The learned Courts below had placed reliance on their evidence for convicting the petitioners. 6. PW1 Chaman Lal was declared hostile. He has admitted in his cross examination that two gunny bags, each containing 48 bottles of Commando XXX Rum, and the other 48 bottles of Bagpiper whisky, were recovered. What is significant in the evidence of this witness is that three samples from three bottles of Rum and three bottles of whisky, each in three nips were drawn and sealed with seal impression ‘T’, which was handed over to this person, but this seal has not been produced in Court. PW1 Chaman Lal states in his cross examination that no seal was handed over to him. 7. PW2 Bhupender Sharma seems to be the star witness of the prosecution. He stated about seizure of the illicit liquor, its sealing, drawing of samples, sealing them and sending them to the Test Laboratory and handing over the same to PW4 C. Avtar Singh. However, 3 in his cross examination, he admits that the samples of illicit liquor, the bottles from which the samples were taken, as well as the seal have not been produced in Court and road certificate has also not been produced and proved in evidence. He states that no tampering has been done when the liquor was in his custody. He also states that receipt of Chemical Test Laboratory has been inserted in Register No. 21, which register has not been produced in evidence. PW5 Heera Lal again corroborates the prosecution case. So far as drawing of samples and sealing is concerned, he states that seal ‘T’ was handed over to Chaman Lal. 8. I find from the judgment of learned Sessions Judge that he has based the conviction on the evidence of PW1 Chaman Lal, who admits the recovery of two gunny bags containing Commando XXX Rum and Bagpiper whisky. I am not going into other detail of the case. In revisional powers, it is well settled that the evidence cannot be re- appreciated but that does not stop the Court from ascertaining any perverse findings of the Courts below. 9. Two vital factors had to be established by the prosecution. One is seizure of illicit liquor and second is the production of those of the sampled bottles from which the samples were drawn. There is no evidence on record and it has also not been proved on the basis of oral statements of witnesses as to where the seal which was in physical existence and possession of PW1 Chaman Lal has gone. No explanation has come forth on this count. No effort has been made to produce the seal in Court. So far as the statement of PW1 Chaman Lal is concerned, no sample of liquor or any seal of the seized liquor has been produced and proved in Court. The bottles from which the samples were taken have also not been proved in Court. Learned trial Court as also the Appellate Court 4 had presumed as a matter of fact that what the witnesses have stated is the correct state of affairs without considering that facts were to be proved from documents which admittedly existed but were not produced in Court. There is no presumption in law that oral evidence can over ride documentary proof. The existence of seal can be proved by its production. The Court cannot presume that the sample was kept in safe custody, more especially when such fact is established by a written document namely register (s) and certificate in Register No. 21, which is not produced. What the prosecution tried to prove remains unclear. Merely saying that liquor was seized is insufficient without establishing its quantity and safe keeping. Even if PW1 is to be believed his statement does not corroborate the prosecution so far as the seizure of country liquor is concerned. His presence on the spot also remains a mystery. The case of the prosecution is that he was coming from Solan to Kandaghat, but PW6 Sewa Singh says that he accompanied the SHO. But leaving this aside, the liquor, which constitutes the corpus delicti, has not been established on record; therefore, the finding of conviction against the petitioners cannot be sustained. This does not require appreciation of evidence but only consideration of that part of the prosecution case which was required to be established by them. 10. Learned counsel appearing for the petitioner then places reliance on a judgment of this Court in State of H.P. vs. Gurcharan Singh, Latest HLJ 2008(HP) 745, holding that liquor which was seized, having not been produced in Court, an adverse inference requires to be drawn against the prosecution. The Court holds that “6. Apart from the above noticed contradictions, the prosecution did not produce the liquor allegedly recovered from the respondent. Its failure to produce 5 the liquor renders it liable to adverse inference to the effect that no liquor, as alleged, was recovered from the respondent.” 11. I am in respectful agreement with this judgment. This revision petition is accordingly allowed. The judgment of two Courts below is quashed and set aside. Bail bonds furnished by the petitioners are discharged. August 12th, 2010 (Dev Darshan Sud) (ms) Judge