IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal 550 of 2001 Decided on 29. 07 . 2008 State of H P …….Appellant Versus Dharam Chand ……. Respondent Coram: The Hon’ble Mr. Justice Surinder Singh. J. Whether approved for reporting ?1 No. For the appellant : Mr. J.S.Guleria, Law officer. For the Respondent Mr. Naresh K.Thakur, Advocate. Surinder Singh, J. (oral) Acquittal of the respondent, under section 61(i)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, has been assailed in this appeal by the appellant- State, on the grounds that the learned trial court has failed to view the prosecution evidence in its right perspective but at the same time has set unrealistic standards to evaluate the direct and cogent prosecution evidence. Further no reason whatsoever has been assigned for discarding the version of the official witnesses. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes. 2 I have heard the learned counsel for the parties and examined the record very carefully. In brief the prosecution case is that on 22.1.1997, a police party, headed by HC Jeet Singh along with other police officials, was present at “Jaije-Mour” on the Una-Hoshiarpur Highway. At about 8.15 p.m. respondent is alleged to have come from Ghaluwal side, carrying a sack on his shoulder. Police got suspicious and conducted its search. During the search, respondent was found carrying 12 bottle of Royal Touch XXX Rum, Two bottle of Super Star XXX Rum, One bottle of Bonnie Scot and one bottle of Sikkam XXX Rum. Respondent could not produce any license / permit to carry the aforesaid bottles of liquor. Police took five samples, from each of the above brands, and sealed with seal “U”. Remaining quantity of the bottles, from which the samples were taken, were also sealed with the same seal. The case property was taken into possession by the police vide memo Ex.PW2/A in the presence of the police officials. Its copy was supplied to the respondent. Police prepared the site plan Ex.PW4/D and ruqua Ex.PW4/B was sent through Constable Gurbax Singh, for registration of the case, on the basis of which FIR Ex.PW4/C was 3 registered. The case property was deposited in the Malkhana with PW1 Ravinder Kumar on 5.2.1997 vide R.C.No.5/97. Constable Dhian Singh (PW3) took the samples for its analysis, to which he deposited on 7.2.1997 in the Laboratory. On analysis, the samples were found to be of country liquor IMFL, having a different alcoholic strength. After completing the investigation, challan was put in the court for trial of the respondent. Respondent was charge-sheeted for the offence charged, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondent was also examined under section 313 of the Code of Criminal Procedure. He denied the case of the prosecution as put to him. According to him, a false case was registered against him and in fact he was coming from Hamirpur after seeing his relative, on the way the bus developed mechanical fault thus he came on foot and police apprehended him near his house. At the end of the trial, respondent was acquitted by the learned trial court on the ground that no independent witness was associated, though available at the time of recovery to inspire 4 confidence, and further that there are material contradictions in the statement of official witnesses. According to Shri Guleria, learned Law Officer, statements of the official witnesses inspires confidence and association of independent witness is not a requirement of law. Contra, Shri Thakur, learned counsel for the respondent has supported the impugned judgment of acquittal. According to him, link evidence in the case is not complete, therefore, acquittal of the respondent cannot be disturbed. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. As a matter of fact, if the recovery is made from an open place from the accused, compliance of Section 100(4) Cr.P.C. is neither required nor mandatory. Further it is also not incumbent upon the police to associate any independent witness in order to lend strength to their case, if testimonies of the official witnesses are found unimpeachable and worth inspiring confidence. However, to prove this case, where the contraband was recovered from the 5 possession of the accused, it is incumbent on the prosecution to prove that the substance recovered is an offencesive one. Thus to substantiate its case the prosecution is required to establish a complete chain and a link from the separation of its sample till its deposit in the laboratory. Therefore, the prosecution has to examine every person in whose hands the case property/sample has exchanged hands to overrule the possibility of its tampering. In the instant case, according to Head Constable Jeet Singh (PW4) after the recovery the samples were separated and sealed, as stated supra. Further according to him, sample of seal was taken on a piece of cloth and the seal was handed over to Surjit Singh Constable, but he did not say as to what he did with the case property. There is absolutely no reference in his statement that the case property / samples were deposited by him in the malkhana on the same day or the next day nor there is any reference in the ruqua. Although PW1 Ravinder Kumar has stated that five samples along with remaining case property was deposited with him on 22.1.1997 but he did not say as to who had deposited it. It remained a mystery as to how the aforesaid case property came into his possession. 6 Copy of the entry in the malkhana register is also not on record to substantiate his version. He also did not say, as long as the case property remained with him it was not tampered with. Constable Surjit Singh, with whom sample of seal was deposited, was not examined. Link evidence in this case is missing and the prosecution has not been able to show that there was no possibility of tampering with the case property from the time of its seizure till its deposit with PW1 Ravinder Kumar. Thus, the chemical report about the analysis of the samples looses its importance. Therefore, in the aforesaid circumstances a substantial doubt arises and respondent is entitled for its benefit, accordingly the acquittal of the respondent is maintained and the appeal filed by the State is dismissed. July 29, 2008 (Surinder Singh),J. (D)