IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.123 of 2002. Date of decision:16.12.2008 State of H.P. .. ..Appellant Versus Vinod Kumar .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the Appellant: Mr.R.M.Bisht, Dy.A.G. For the respondent: Mr.Vijay Bhatia, Advocate _____________________________________________________ Deepak Gupta, J.(oral) This Appeal is directed against the judgment of the learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P.dated 30.6.2001 whereby the respondent has been acquitted of having committed an offence punishable under Sections 61(1)(a) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh. The prosecution case, in brief, is that on 11.10.1991 at about 6.30 p.m. SHO, Police Station, Haripur SI Suchha Singh was coming from Nagrota Surian to Haripur on a motor cycle. When he reached near Ghera the accused was coming from the other side. The police officials were suspicious and searched the accused and during search one bottle of illicit liquor was recovered from the accused. He was allegedly carrying this bottle in his pant pocket. Out of this liquor sample measuring …2… 180 ml. was drawn and sealed with seal bearing impression “SS”. Search and seizure memo was prepared and thereafter rukka was sent to the Police Station. On the basis of rukka FIR No.63 of 1991 was lodged. After investigation the challan was filed in the Court. The learned trial Court acquitted the accused. Hence, the present appeal. The learned trial Court has acquitted the accused on certain grounds. Both the witnesses to the search and seizure are police officials and in fact one of them is also the Investigating Officer in the case. According to PW-1 Jagdish Chand at the point where the accused was intercepted a person is visible from a distance of 200 to 30 meters. However, PW-2 has flatly denied that the persons would be visible at such a distance. Furthermore PW-1 Jagdish Chand states that nip for filling the sample was arranged from the Jhuggi near the spot where the accused was apprehended. However, PW-2 does not make any mention of any such Jhuggi. He however admits that a nip was arranged by PW-1 but could not say from where this nip was arranged. It is apparent that the nip was arranged from the nearby jhuggi. As a Jhuggi was there and nip was arranged from the said jhuggi it is more than apparent that there were some persons in the said jhuggi. Why these independent persons have not been associated with the investigation has not been explained? Further more it is apparent that even the copy of the seizure memo was not supplied …3… to the accused person nor the signatures of the accused were obtained on the seizure memo. Keeping in view the aforesaid circumstances, the trial Court acquitted the accused. The judgment is absolutely correct and benefit of doubt has to be given to the accused person. In view of the aforesaid discussion, I find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are discharged. December 16, 2008. ( Deepak Gupta ), PV Judge