IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A.No.14/2009. Date of Decision: 5.3.2009. ________________________________________________ ____________ State of H P. Appellant. Versus Shakti Chand Respondent. Coram: Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Sh. J.S. Guleria, Assistant Advocate Geneal. For respondent : None. ____________________________________________ Surinder Singh,J(Oral). The State has assailed the judgment of acquittal of the respondent in Criminal Case No. 7-III-2007 decided on 8.7.2008 by the learned Judicial Magistrate. Precisely, the facts of the case are that Inspector Ashish Sharma was on patrolling duty at Dhaneta Bazar along with some police officials. He received a secret information that the respondent was dealing in the trade of liquor without permit and if his premises are raided, a huge quantity of liquor can be recovered. The said Inspector sent a rukka Ext.PW-5/A regarding this information through LHC Rakesh Kumar for the registration of the case on the basis of which F.I.R. Ext.PW-3/A Whether reporters of the Local papers are allowed to see the judgment?Yes 2 was formally registered. Thereafter Inspector Ashish Sharma included S/Shri Anil Kumar Pradhan and Sushma Rani an independent witnesses and raided the house of the respondent. The respondent was found present in his house. From the record, it appears that no incriminating material was found from his house but on the search of his cow- shed four cartons of Indian Made Foreign Liquor (IMFL) ‘Officers Choice’ brand were recovered. On the further search of the cartons each cartons were found having contained 12 bottles of IMFL and in addition to it four bottles of the same brand were also recovered, from the said cow shed. The respondent could not produce any permit. The said Inspector took one bottle of the ‘Officers Choice’, as sample from each of the recovered cartons and sealed it with seal impression ‘A’ and the case property was taken into possession vide Ext.PW-4/A. The site plan was prepared and the statements of the witnesses were recorded. The case property was deposited with M.H.C. along with sample of seal. Four sample of bottles were sent for analysis through a constable to CTL., Kandaghat. On its examination, the samples were found to contain Indian Made Foreign Liquor of different strength. After completing the challan, case was presented against the respondent in the court under Section 61(i)(a) of Punjab Excise Act as applicable to the State of H.P. The respondent was accordingly charge-sheeted. The respondent pleaded not guilty and claimed trial. At the end of the trial, he 3 was acquitted on the ground that the independent witnesses had shown hostility to the case of the prosecution as they did not support its version. In so far as the official witnesses were concerned, their testimony could not be relied upon in absence of any independent corroboration from the independent source. Further the respondent was living in a joint family, the actual and conscious possession was not proved. There was no material on record which could show that remaining 48 bottles recovered from the accused also contained liquor or any other offensive substance and at best the recovery of 4 bottles of Indian Made Foreign Liquor which was otherwise said to have been proved were with in the permissible limit of a family. On the perusal of the record, I find that the police have recovered four cartons from the cow shed-out of which only four bottles of Indian Made Foreign Liquor were sealed as sample and sent for examination, but there is nothing on record to show that if any sample was taken from the remaining 48 bottles which is alleged to have contained IMFL. Keeping of 4 bottles of Indian Made Foreign in possession is permissible as held by the trial court but before the accused could be convicted for the offence, the prosecution is obliged to prove that the respondent was in actual and conscious possession of Indian Made Foreign Liquor more than the permissible quantity. In the instant case, the prosecution has failed to prove the actual and conscious possession of the alleged recovered articles from the cow-shed allegedly possessed by the respondent as alleged. 4 A perusal of the site plan shows that the cow shed is at some distance from the house of the accused. There was nothing incriminating which could connect the respondent with the alleged offence. Neither the evidence was collected nor was any witness examined to prove the possession of the respondent over that cow shed. Thus, on examining the record I find no perversity in the impugned judgment of acquittal passed by the learned trial Court which could impel me to convert the acquittal into conviction. Therefore, the leave to appeal is declined, consequently the appeal is dismissed. The record of the learned trial Court be returned. (Surinder Singh), Judge. March 5, 2009(R)