HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 340 of 2002 Decided on: 2.1.2009 State of Himachal Pradesh ………Appellant. Versus Janak Raj ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondent: Mr.Pankaj Negi, 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 Sessions Judge, Chamba, dated 15.1.2002, vide which the appeal filed by the respondent against the conviction and sentence imposed upon him by the learned Chief Judicial Magistrate, Chamba, on 24.6.2000, under Section 61(i)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, was accepted and the judgment of the learned trial Court was set aside. Briefly stated the facts of the case are that on 29.1.1998, at about 6.00 p.m., S.I. Bali Ram, alongwith PW-1 H.C. Rajinder Kumar and police official Lokinder Singh were on patrol duty and they saw one person carrying a cany of white colour in his hand, who tried to run away on seeing the police party. The said person was apprehended by the police officials and he disclosed his name as Janak Raj. A sample was taken out of the illicit liquor so recovered, which was _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - about 5 litres, and the sample and the cany were separately sealed. A ruka was sent to the Police Station and on completion of the investigation, the challan was filed as against the respondent, who was tried by the learned trial Court, as detailed above, and was convicted and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/-. In default of payment of fine, the respondent was to undergo simple imprisonment for one month. On appeal, the said sentence imposed by the learned trial Court was set aside by the learned Sessions Judge. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is very much clear that PW-4 SI Bali Ram was on patrolling at the relevant time alongwith two police officials when he intercepted the respondent. There is nothing on record to suggest that at the time of patrolling, he deemed it necessary to associate any independent witness from the nearby village. PW-4 SI Bali Ram has stated that he apprehended the respondent and recovered a cany containing about 5 litres of illicit liquor. In regard to the non-joining of independent witnesses, he admitted that at some distance there are 3 villages and around 1000/1500 people live in these villages. He has also admitted that the respondent was apprehended while coming from the common path to the main road. He gave an explanation that he tried to associate local witnesses, but did not have any talk with them. He has not stated that no witness was available or he waited for some witness to be called from the nearby village by sending some police official, but he simply stated that he had no talk with the local witnesses. In view of the fact that the recoveries were effected from the common path which was leading towards the main road and at some distance there are villages in which several persons were - 3 - living, the explanation given by the said PW-4 SI Bali Ram does not seem to be plausible. The other recovery witness PW-1 HC Rajender Kumar has also stated similarly and has corroborated the statement of PW-4 SI Bali Ram in regard to the recovery of cany from the possession of the respondent. He simply stated that SI tried to associate local witnesses, but none was available. He nowhere stated that any person was sent to the nearby village to call any independent witness and none was willing to associate himself. Therefore, the explanation given for non-joining of independent witnesses, in the facts and circumstances of the case, was not relied upon as plausible by the learned Sessions Judge. Apart from the above, the learned Sessions Judge has also observed that when the respondent was seen from a distance of 10-20 yards and had tried to run away, it cannot be believed that he did not make any attempt to throw the cany in which he was carrying the illicit liquor. Moreover, it was specifically suggested to both the witnesses that the case has been instituted at the instance of Constable Lokender, who was also with the patrolling party and was the second witness to the recovery memo, but inspite of that, no efforts were made by the prosecution to produce him so that he could explain in regard to the allegations that the accused was apprehended while he was carrying illicit liquor in a cany, and the said Constable Lokender was given up by the prosecution. In view of the fact that only two witnesses were there to the recovery of the illicit liquor from the possession of the respondent, apart from the Sub Inspector heading the patrolling party, it was necessary that this witness should have been examined, more so, when allegations have been made that the case was made out at the instance of Constable Lokender since he was having inimical relations with the accused and it was also alleged that a case was also going on in - 4 - between the accused and the wife of Lokinder Singh. The learned Sessions Judge has also observed that though the seal was handed over to witness Lokender Singh, he should have been examined by the prosecution to substantiate the plea that the seal was handed over to him after sealing the recovered material at the spot. In case he had failed to produce the seal, it was not necessary to draw adverse inference, but this fact had been taken note of by the learned Sessions Judge to hold that the case of the prosecution becomes doubtful. Keeping in view the minor infirmities in the statements of the prosecution witnesses, the findings recorded by the learned Sessions Judge acquitting the respondent cannot be termed as perverse calling for an interference by this Court. From the above discussion, I hold that there is no merit in the appeal filed by the State of H.P. and the same is dismissed accordingly. The Bail bonds furnished by the respondent shall stand discharged. January 2, 2009. (V.K. Ahuja), (TILAK) Judge.