IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.450 of 2001 Judgment reserved on:24.7.2008. Decided on: July 25, 2008. State of H.P. …Appellant. VERSUS Ramesh Chand ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr Anshul Bansal, Addl.A.G. For the respondent: Mr S.C.Sharma, Advocate. Kuldip Singh, Judge: This appeal has been directed against the judgment dated 17.5.2001 passed by learned Chief Judicial Magistrate, Shimla in Criminal case No.2/3 of 1999 acquitting the respondent under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. 2. The prosecution case, in brief, is that on 22.7.1998 PW-3 HC Het Ram was on patrol duty along with HC Rajesh Kumar, Constable Kumbh Dass, Constable Bhim Singh and LC Neelam, at about 4.15 p.m. they were present at Long Wood, a secret Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… information was received that accused deals in illegal business of liquor in his shop / house. On this a raiding party was constituted by associating witnesses Hema Nand and PW-2 Yadupati Sood. The raid was conducted in the residential house of the accused and on search two sacks were found lying in the corner of the store room and one more sack was lying there. On opening the sacks, from one sack 70 pouches of country liquor ‘HERO’ each 180 ML, from second sack 95 pouches of country liquor ‘HERO’ each 180 ML and from the third sack 16 pouches of Una No.1 each 750 ML were recovered. The accused could not produce any permit or licence to justify the possession of the liquor recovered from his possession. Two pouches of 180 ML each and one pouch of 750 ML were separated as samples for chemical examination and sealed with seal ‘H’. Thereafter, the remaining recovered pouches were taken into possession. Ruka Ext.PW-3/A was sent for registration of the case and thereupon F.I.R. Ext.PW-3/F was registered. On receiving the report of the chemical examiner Ext.PW-3/D and after completion of investigation, challan was presented in the Court. The accused was charged under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. He pleaded not guilty and claimed trial. The prosecution examined three witnesses. The statement of accused was recorded under Section 313 Cr.P.C., he denied the case of the prosecution and no evidence in defence was led by the accused. The learned Chief Judicial Magistrate on conclusion of the trial acquitted the accused, hence, this appeal. …3… 3. I have heard learned Additional Advocate General for the appellant, Mr.S.C.Sharma, learned counsel for the respondent and gone through the record. The learned Additional Advocate General has submitted that the learned Court below has not properly appreciated the material on record including the statements of prosecution witnesses and documentary evidence led by the prosecution. He has submitted that the prosecution has proved the case against the respondent, therefore, he submitted for setting aside of the impugned judgment. The learned counsel for the respondent has submitted that after proper appreciation of evidence on record the learned Chief Judicial Magistrate has rightly acquitted the respondent and no fault can be found with the judgment of acquittal recorded by the Court below. 4. PW-1 Constable Mohan Lal is a formal witness and his statement is not relevant to the point in issue. Ext.PW-3/A is the Ruka on the basis of which F.I.R. Ext.PW-3/F was recorded. In the Ruka it has been stated that residential house of the accused was searched in presence of witnesses Hema Nand and Yadupati Sood. It has also been stated that from the store of the accused country liquor was recovered. Ext.PW-2/A is the recovery memo which was allegedly witnessed by Yadupati Sood and Hema Nand. In Ext.PW- 2/A it has been stated that country liquor was recovered from the store which is adjacent to general store of the accused. Ext.PW-3/B is the site plan in which at point ‘C’ residential house and general store of the accused has been shown. It has also been mentioned that …4… liquor was recovered from the verandah of the store of the accused at point ‘E’, which is a separate place. In Ruka Ext.PW-3/A it has been stated that residential house of the accused was searched and from there the country liquor was recovered. 5. PW-2 Yadupati Sood has not supported the prosecution. He was declared hostile and was cross examined by the prosecution but even in his cross examination nothing was extracted favouring the prosecution. He, however, admitted his signatures on memo Ext.PW- 2/A. PW-2 has given the time of occurrence 3.30 p.m. but in Ruka Ext.PW-3/A time has been mentioned 6.05 p.m. PW-3 HC Het Ram has stated that the shop of accused was searched and from there the country liquor was recovered. In Ruka Ext.PW-3/A it has been stated that residential house of accused was searched and from there the liquor was recovered. In recovery memo Ext.PW-2/A it has been stated that country liquor was recovered from the store adjacent to the shop. In site plan Ext.PW-3/B the country liquor has been shown to be recovered from the verandah of the store. There is thus contradiction in prosecution case so far place of recovery of liquor is concerned. The independent witness PW-2 Yadupati Sood has not supported the prosecution case. The other independent witness of the recovery Hema Nand has not been examined. The learned Chief Judicial Magistrate has rightly appreciated the material on record while acquitting the respondent. The prosecution has failed to make out any case for interference. Resultantly, the appeal fails and is …5… accordingly dismissed. Bail bonds, furnished by the respondent, are discharged. July 25, 2008. ( Kuldip Singh ), J. (soni)