IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 115 of 2008 Judgement reserved on: Date of decision: 29.2.2008. State of H.P. …..Petitioner- Appellant. Vs. Man Chand …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. A.K.Bansal, Addl. Advocate General. For the Respondent : Kuldip Singh, Judge (Oral). The State has filed this petition seeking leave to file an appeal against the judgement dated 10.9.2007 passed by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Criminal Appeal No. 5-P/2005/2003 acquitting the respondent, under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh. 2. The facts in brief are that on 17.3.1998 police party headed by PW 6 Om Parkash ASI was on patrol duty, at about 7.15 p.m. at place Ram Chowk, Ghuggar at Palampur, secret information was received that respondent deals in distilling and selling of illicit Whether the reporters of the local papers may be allowed to see the Judgment? …2… liquor in his residential house at Ram Chowk, Ghuggar. ASI sent information to the Police Station and joined two independent witnesses PW 2 Kishori Lal and Raju and raid was conducted in the house of respondent. During search, one bottle of illicit liquor was recovered which was hidden beneath the cot. One nip was taken as sample. The nip and the remaining liquor in the bottle were packed and sealed, seal was handed over to one of the witnesses. The respondent was arrested. The sample was sent for chemical analysis and as per report it was found that contents were that of illicit liquor. After completion of the investigation, challan was filed in the court. The respondent was charged, under Section 61(1)(a) of Punjab Excise Act as applicable to the State of H.P., to which he pleaded not guilty and claimed trial. The prosecution examined six witnesses. The statement of the respondent was recorded, under Section 313 Cr.P.C. He pleaded his innocence, but led no evidence in defence. The learned Judicial Magistrate Ist Class, Court No.II, Palampur convicted the respondent on 22.5.2003 and on 24.5.2003 sentenced him to three months simple imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a period of one month, under Section 61(1)(a) of Punjab Excise Act as applicable to the State of H.P. The respondent filed an appeal against his conviction and sentence, which has been allowed and the respondent has been acquitted by the learned Additional Sessions Judge on 10.9.2007, as noticed above. 3. Heard. The learned Additional Sessions Judge vide judgement dated 10.9.2007 has noticed that PW 6 deposed that on …3… 10.3.1998 he constituted a raiding party and joined PW 2 Kishori Lal and Raju and thereafter searched the house of respondent. A bottle Ex. P-1 containing illicit liquor was recovered which was lying beneath the cot. One nip was taken as sample. The remaining liquor in the bottle and the nip was sealed separately with seal-H, which was handed over to PW 2 Kishori Lal. Site plan Ex. PW 6/A was prepared. Seizure memo Ex. PW 2/A was prepared and also got signed by the witnesses. The learned Additional Sessions Judge has further observed that it has not come in evidence that before conducting the search of the house of the respondent, the personal search of the police officials was conducted. It has not been revealed by anybody from where nip in which the sample was put was managed. PW 6 Investigating Officer has not stated from where two witnesses of the raiding party were called, whether they met by chance or someone went to call them. As per site plan Ex. PW 6/A there are houses of Smt. Parkasho and Pritam Chand near the house of the respondent, but no explanation has been given why the persons from the vicinity were not joined during raid. 4. PW 2 Kishori Lal and Raju witnesses of the raiding party are not residents of nearby area and how they were present on the spot has not been made clear. The learned Additional Sessions Judge has also observed that search has not been made inconformity with Section 100 Cr.P.C. Raju another witness of the raiding party has not been examined. He has made observation in the judgement for not believing PW 2 Kishori Lal. The learned Additional Sessions Judge has given the benefit of doubt in acquitting the respondent. …4… The learned Additional Sessions Judge has closely scrutinized the material on record and has come to a possible conclusion. No case for grant of leave to file an appeal has been made out. Hence, petition for granting leave to file an appeal is rejected. February 29, 2008. ( Kuldip Singh ) (Hem) Judge.