IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 186 of 2002 Date of decision: 23.12.2008 State of H.P. …. Appellant. Vs. Kartar Singh. ... Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Ram Murti Bisht, Dy.Advocate General. For the respondent: Mr. Arun Kumar vice Mr. Sandeep Vashisth, Advocate. Per Deepak Gupta, J.(Oral) This appeal is directed against the judgement of the learned Additional Chief Judicial Magistrate, Dehra, in Cr. Case No. 97-III/96 dated 7.7.2001, whereby he has acquitted the accused of having committed offence punishable under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh. The prosecution version, in brief, is that on 26.12.1995, SI Jagdish Chand, the then SHO of Police Station Jwalamukhi alongwith constables Rukamdeen and Baldev Singh was patrolling from the side of village Kaloha towards village Sadwa. When they were about one kilometer from village Kaloha they saw the accused running with a kit bag in his hands. Since the accused was running it aroused the suspicion of the police officials. They ran after him and apprehended the accused. On search of the kit bag 99 pouches of country liquor each containing 200 mls of country liquor were recovered. Personal search of the accused was also conducted. Out of the 99 pouches, 6 pouches were sealed as samples and the remaining 93 pouches were put in a carton alongwith the kit bag and sealed with seal bearing 1 Whether the reporters of the local papers may be allowed to see the Judgment . yes. 2 impression “T”. Search and seizure memo was also prepared which was witnessed by constable Rukamdeen and constable Baldev Singh. Thereafter, F.I.R. was registered against the accused person at Police Station Jawalamukhi. After investigation, challan was filed and the accused summoned. He pleaded not guilty and claimed trial. The learned trial Court has acquitted the accused basically on two grounds. Firstly that the sample taken of the six pouches was not a representative sample of all the pouches and secondly that there were serious discrepancies in the prosecution version in respect of the place where the seizure took place, the seizure itself and the manner of investigation. As far as the first contention is concerned, I am prima-facie not in agreement with the findings of the learned trial Court. However, I do not want to go into this question in detail since I am of the view that on the second ground the acquittal of the accused is justified. At the outset, it may be stated that all the witnesses produced in Court are police officials. Therefore, their evidence has to be scrutinized with great care and caution. PW-2 constable Rukamdeen states that they had left the police station to enquire into complaints pertaining to village Sarad and Garrli. This version is contradicted by PW-3 Baldev Singh who has denied that they had left the police station to inquire into any complaint. According to SHO PW-5 Jagdish Chand, they had left the police station in a taxi and left the same in village Kaloha and proceeded on foot. He has been contradicted by PW-2 Rukamdeen who states that they had not taken any taxi. Surprisingly, personal search memo of the accused bears the signature of Shri Sandeep Singh, who is the alleged taxi driver. This totally belies the prosecution story. Even 3 assuming for the sake of argument that a taxi had been hired, according to the prosecution itself, this taxi was left at village Kaloha and then the police party proceeded on foot. If they were on foot, the question of the driver of the taxi being present at the time of the personal search of the accused did not arise at all. Sandeep Singh has also not been examined in the case. Lastly, it must be observed that the investigation has not been fair. As per the prosecution version all the proceedings were conducted on the spot and F.I.R. was lodged in the police station lateron. However, a perusal of the seizure memo and the site plan etc., show that they bear the number of the F.I.R which is in the same pen and handwriting and appears to have been inserted at the time of preparation of the documents itself. In fact, none of the prosecution witness has stated that this number was inserted lateron. The learned trial Court, keeping in view the aforesaid factors came to the conclusion that the accused could not be convicted on this evidence. I have no reason to disagree with the judgement of the learned trial Court. The appeal being without any merit is, therefore, dismissed. The bail bonds, if any, furnished are ordered to be discharged. December 23, 2008 (Deepak Gupta), J. ™