IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 669/2001 Date of Decision: 3rd March, 2009. __________________________________________________________ State of H.P. Appellant. Versus Rajesh Kumar @ Chhotu and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant :Mr. J.S.Guleria, Assistant Advocate General. For respondents : Mr. Sanjiv Bhushan, Advocate. _____________________________________________________ Surinder Singh, J(Oral). Heard and gone through the record . The State has challenged the acquittal of the respondents under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh, for allegedly transporting the country liquor in taxi bearing registration No.H.P-02-1109. Precisely, the facts of the case are that on 13.6.1998 around 8 a.m. the police party headed by PW6 Inspector Sh.Mehar Chand was on patrolling near P.W.D.Rest House Nadaun. The aforesaid vehicle was coming from the Nadaun side. It was stopped for checking by the police party but its driver took the taxi towards the workshop. The police chased and stopped it. The police found Whether reporters of the Local papers are allowed to see the judgment? Yes 2 the respondents sitting in the said taxi. One of the accused Rajesh Kumar, ran away from the spot whereas Tek Ram, the taxi driver and Shankar Ram the passenger were apprehended and the police checked the vehicle aforesaid and recovered 19 cartons of country liquor, out of which two cartons containing 12 pouches each containing 750 Mls. Una No.1 brand were recovered whereas in another 15 cartons each 50 pouches country liquor of aforesaid brand containing 200 mls. in each pouches were also recovered . Out of two cartons containing 12 pouches of 750 Mls. in each of the pouches, two pouches were separately taken out and from each of the pouches one nip was taken out as sample and the remaining liquor was kept in a sealed bottle. Similarly, out of the remaining cartons containing 200 Mls country liquor, five pouches were separately taken out for sample purpose and the said bottles as well as the samples were duly sealed with seal impression ‘M’ and the remaining case property was also sealed with the same seal. The entire articles were taken into possession vide seizure memo Ext.PW6/A in the presence of PWs. Tarsem Lal and Ramesh Chand independent witnesses. During the investigation, the police also took into possession the documents of the vehicle in question vide Fard Ext.PW6/B. Rukka Ext.PW6/C was sent for registration of the case through constable Sh.Udho Ram on the basis of which F.I.R. Ext.PW3/A was formally registered. The police prepared the site plan Ext.PW6/D. 3 The case property was alleged to have been deposited with M.H.C. The seal used for sealing the case property was handed over to PW5 Tarsem Lal, after taking a sample on the piece of cloth. Further the samples were taken by Constable Sunil Chand for chemical test in CTL Kandaghat vide R.C.No.37 of 1998. Later Rajesh Kumar respondent was arrested by the police on the next day. After receipt of the chemical report and completion of the challan a case was presented against the respondent in the court for the trial of the respondents. Finding a prima facie case against the respondents they were charge sheeted under Section 61(1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. The respondents denied the charges and pleaded not guilty. To prove its case the prosecution examined six witnesses and the respondents were also examined under Section 313 Cr.P.C. After appreciating the evidence on record, the learned trial Court disbelieved the statement of PW6 Inspector Mehar Chand on the ground that his testimony remained uncorroborated and the sole independent witness Tarsem Lal examined by the prosecution had turned hostile and the another witness Sh.Ramesh Chand was not examined. The State feeling aggrieved by the impugned judgment of acquittal, challenged the same in this appeal. 4 During the course of the arguments it was found that the learned trial court did not record the statement of the respondents with respect to the circumstances which were found attendant upon them more particularly with respect to question No.3 recorded by it. As such, the respondents were called again affording them an opportunity to explain each of the circumstances which were born out from the evidence on record. This court recorded their statements on 8.1.2009. They denied the allegation leveled against them. According to them they were sitting in the Tea- stall at Nadaun when the police came there. They were taken to the police station and they were made to sign some documents and a false case was foisted upon them. The mater was reheard. Sh.J.S.Guleria, learned Assistant Advocate General vehemently argued that the statement of PW6 Mehar Chand, Investigating Officer was ignored by the learned trial court without giving any cogent reason which, otherwise was worth inspiring confidence. I have given my thoughtful consideration to the point raised and have carefully examined the evidence on record. The perusal of the record shows that Ramesh Chand one of the independent witness was not examined by the prosecution whereas PW5 Tarsem Lal did not support the prosecution case at all. He denied the recovery from the respondents as alleged. Thus, the testimony of Inspector Mehar Chand requires close scrutiny and appreciation. He has deposed that one Sh.Rajesh Kumar had fled away from the 5 spot and on checking the vehicle in question in the presence of witnesses and the other accused the above country liquor was recovered and the samples were separated and sealed on the spot with seal impression ‘M’. According to him a sample Ext.PW6/F was also taken on a piece of cloth. After completing the investigation on the spot the case property was deposited with PW-2 M.H.C.Partap Chand. Partap Chand aforesaid stated that on 8.7.1998 the samples were handed over to constable Sunil Chand for its deposit in CTL, Kandaghat vide R.C.No.37 of 1998 but he also did not say about depositing of the samples of seal. Further the first page of the report Ext.PW6/A which was filled in by PW6 Mehar Chand only makes a reference of sealing the samples with seal impression ‘M’ but did not give any reference with respect to the sending of the sample of seal along with the samples. Further on 9.7.1998 when this property was deposited by PW1 Constable Sunil Chand in the laboratory there appears only lithographic impression with respect to its receipt and certification that the seals were found intact and broken and another certificate shows about the delivery of the seals which were sent separately. This certificate is not signed by the person receiving the case property into the laboratory. Further the close scrutiny of the statement of Inspector Sh.Mehar Chand shows that he had only taken one seal impression on a piece of cloth which is exhibited PW6/c 6 available on record which means no sample of seal was sent along with the sample to C.T.L. Kandaghat for comparison. Yet there is another defect in the prosecution case. As per recovery memo Ext. PW6/A the seal after using the same was handed over to Sh.Tarsem Lal though he turned hostile but he did not corroborate this version. The road certificate through which the samples were sent for analysis was not proved during the trial of the case, which could have thrown light if the samples accompanied any sample of seal. In order to prove the case against the respondents it was incumbent upon the prosecution to prove the link of evidence in its all respect beyond reasonable doubt. In case there is breach in the link, the possibility of tampering cannot be ruled out and its benefit goes to the accused, therefore, in my considered opinion on the facts on record as discussed above the prosecution could not bring home the guilt against the respondents beyond reasonable doubt as such there is no cause for interference into the judgment of acquittal passed by the trial court. Accordingly, the appeal is dismissed. Record of the trial court be returned forthwith. (Surinder Singh), Judge. March 3, 2009(R)