HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. Cr.Appeal No. 492 of 2002. Date of Decision: 4.6.2009 State of H.P. …Appellant. Versus. Baldev Raj alias Bobby ..Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting? For the Appellant: Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent: Mr. M.L.Brakta, Advocate. Surjit Singh, J (Oral). State has appealed against the judgment dated18.2.2002 of learned Chief Judicial Magistrate, Shimla, whereby respondent Baldev Raj, who was charged with and tried for offence, under Section 61(1)(a) of the Punjab Excise Act, as applicable to Himachal Pradesh, has been acquitted. Brief facts are that on 4.11.1998, Head Constable Chet Ram (PW3) accompanied by three constables of CIA Staff was on patrol duty at the Ridge, Shimla, around 6.45 pm, when he and constables accompanying him saw the respondent coming with an Attaché case from the lower side of the ridge. On seeing the police people, the respondent allegedly tried to run - 2 - away but he was overpowered and on search of his attaché case, sixty pouches of country liquor, containing 180 ml. each, and four bottles of Indian made foreign liquor, were recovered. Three pouches, out of the recovered pouches, were separated by way of samples for chemical examination. A nip was filled from one bottle out of the four bottles of whisky. Samples were sent to the Chemical Examiner, who found that the pouches contained country liquor and nip contained Indian Made Foreign Liquor. Trial Court acquitted the respondent holding that no independent witnesses had been associated and there was violation of Section 100(6) of the Criminal Procedure Code and that the sole so-called independent witness associated by the police had not been examined by the prosecution. Learned Chief Judicial Magistrate also noticed some contradictions in the evidence of the witnesses. I have heard learned counsel for the parties and perused the record. View taken by learned trial Court that this was a case of violation of the provisions of Section 100(6) Cr.P.C., is not correct, because Section 100 Cr.P.C. is attracted, when a person is searched in or about a closed place. Here, the respondent was seen coming along a pedestrian path and it was on such path itself, when he was over-powered and attaché case, which he carried was searched. However, on perusal of the evidence, I find material contradictions in the testimony of two witnesses of search and - 3 - seizure examined by the prosecution. They are PW3 HC Chet Ram, who headed the police party and PW-4 Parma Nand, one of the constables accompanying him. According to PW-3 Chet Ram, police party left the police station on the relevant date around 9.00 a.m. but PW-4 Parma Nand, stated that the party left the police station at 6.15 pm. Again, according to PW-3, Head Constable Chet Ram, 2½ hours were spent on the spot to conduct the search and to prepare the record of search and seizure but PW-4 stated that the police party returned to the police station at 6.45 pm. Further, according to PW-3, the seized liquor was sealed in a Boru (gunny bag), which was procured from Middle Bazaar, but the statement of PW-4 Parmanand gives the impression that the attaché case was already in a Boru when the respondent was over-powered. In view of the above-stated position, I do not think this to be a fit case for interfering in the judgment of acquittal. Hence, the appeal is dismissed. June 4, 2009 (Surjit Singh), J. s.