IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No.316 of 2001. Reserved on:1st April, 2008. Date of Decision :15th May,2008. State of H.P. …Appellant. Versus: Bharat Ram. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 For the appellant: Mr.Vivek Thakur, Addl. Advocate General with Ms.Shub Mahajan, Dy. Advocate General. . For Respondent. Mr.G.D.Verma, Sr.Advocate with Mr.B.C.Verma, Advocate. Sanjay Karol, J. The present appeal arises out of the judgment dated 28th December, 2000 passed by Chief Judicial Magistrate, Shimla in Criminal Case No. 203/3 of 1999/94 titled as State Vs. Bharat Ram, acquitting the accused of the charged offence under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of Himachal Pradesh. As per the case of the prosecution on 5th February, 1994 at about 6.45 P.M Inspector Sh. Jai Pal Singh (PW-7), ASI Sh.Jagdish Chand (PW-6), Constable Gopal Dass and Constable Santosh Singh were on patrolling duty. They 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 received secret information that accused Bharat Ram, shopkeeper at Nalhatti is dealing with unlawful business/sale of liquor in his shop. Considering the information to be genuine, a raiding party was constituted by associating the witnesses, namely Narain Singh (PW-4) and Kulwant Singh (PW-2). The raids was conducted in the shop of the accused in his presence and in all seventeen cartons containing 212 bottles of country liquor (PDM Patiala Brand) were recovered from the shop. The samples were taken out in 13 bottles and sealed with seal ‘K’. The recovered bottles were put in a gunny bags and also sealed. The bottles were seized vide seizure memo (Ext.PW-2/A). Rukka (Ext.PW-7/B) was prepared on the basis of which F.I.R. No. 30/94 dated 5th February, 1994 (Ext.PW-4/A) was registered with Police Station, Boileauganj under Section 61 (1)(a) of the Punjab Excise Act. The sealed samples were sent for chemical examination and according to the report the sample contained alcohol. With the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for an offence under Section 60(1)(a) of the Punjab Excise Act as applicable to the State of H.P. to which he did not plead guilty and claim trial. In order to prove its case, the prosecution examined seven witnesses and the statement of the accused 3 under Section 313 Cr.P.C. was also recorded. No evidence in defence was led. Appreciating the material on record, the court below acquitted the accused of the charged offence for the reason that the prosecution had not associated independent witnesses of the locality and the two independent witnesses t Sh.Kulwant Singh (PW-2) and Sh.Narain Singh (PW-4) were not residing in the area and in any event both of them had not supported the case of the prosecution at all. In the absence of any cogent and reliable material, it could not be said that the prosecution had proved its case beyond reasonable doubt. I have heard learned counsel for the parties and also perused the record. It is the case of the prosecution that while they were on patrolling duty at a place called as Tutu, District Shimla, they received secret information about the accused dealing with illicit liquor in his shop at a place called as Nalhatti which is at a distance of approximately 15 Kms. from Tutu. The witnesses, namely, Kulwant Singh (PW-2) and Narain Dass (PW-4) were associated by the Police at about 7 P.M. As per the version of PW-2 he is a resident of village Karasa, Tehsil Rohru, District Shimla which is at a distance of more than 100 Kms. from Tutu. Narain Singh (PW-4) has also deposed that he is a resident of village Sadog, Tehsil and District Shimla which is 25 Kms. further ahead of Nalhatti. 4 Thus, both these witnesses are not residents of the locality. There is no explanation whatsoever as to why no person from the local area was associated by the Police during the investigation. It is not the case of the prosecution that both these witnesses were ordinarily residing or working at the place of occurrence of the incident. It is also not their case that the witnesses happened to be present by chance at the place of the occurrence of the incident and in the absence of any other independent witness they were associated. Therefore, in my view, the police have not associated two independent respectable persons of the locality at the time of forming a raiding party to witness the raid and carry out the search of the shop belonging to the accused. PW-2 in any case has not supported the case of the prosecution at all. According to him he had gone to Ghanahatti and the police had simply obtained his signature on the paper by telling him that liquor had been recovered from Bharat Ram. He admitted his signature on seizure memo (Ext.PW-2/A) but categorically deposed that he does not know as to what had been written in it. He has no knowledge about the case or proceeding. In spite of the exhaustive cross-examination by the Public Prosecutor, upon being declared hostile nothing could come out from his statement which would show the complicity of the accused in the commission of the crime. He has specifically denied any raid 5 having been carried out or recovery of any liquor in his presence by the Police. PW-4, in his examination-in-chief has fully supported the prosecution. But, however, in his examination has absolved the accused rendering his earlier version to be unreliable. For just decision of the matter his entire statement as jointly translated by the learned counsel is being reproduced as under: “PW-4: Statement of Narain Dass son of Sh. Amar Chand, aged 50 years, R/o Sadog, Tehsil Shimla. 20-11.1995. Stated that on 5.2.94 at 7.15 in the evening I was present at Totu. There a police Van arrived in which police personals were sitting. They called me and asked me to accompany them to Nalhatti. I went to Nalhatti along with them. Police personals inspected the shop of Bharat Ram in my presence. One person was accompanying us in the shop. Inside the shop 11 boxes were recovered. Bharat Ram was also in the shop. After the inspection, boxes were recovered. Bharat Ram was also in the shop. After the inspection, boxes were kept inside the police van. Also Bharat Ram accompanied police personal in the police Van. At Boileauganj when boxes were opened liquor was found inside it. I don’t know the brand of liquor. Accused was asked to produce the license for keeping liquor which he could not produce. Total 212 bottles were found, out of those 13 bottles, sample was taken separately and samples was sealed, which is Farad Ext.PW- 6 2/A and police took the bottles in their custody. I had signed as a witness on the farad and police had taken any statement. At this stage the witness is deferred on the ground that the case property has not been produced before this court nor to the witness. 7.12.2000. Chief Continued: I have seen seized bottles Ext. P-1 to P-212, Gunny bags re Ext. 213 and P-214. I have seen and those are same. Kulwant and Bharat Ram also signed the farad in my presence. Accused is present in the Court and I know him. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx I am agriculturist. It is correct that the place of occurrence is 25 Km. away from my village. I don’t know the number of the vehicle in which police officials has come. I don’t know how many police officials had come on the spot. No liquor was seized from the accused in my presence. It is correct that I have not gone to the accused shop. It is correct that during investigation, I was not present, therefore, I don’t know anything about this case. Police has summoned me from my house to police station. I was shown liquor bottles only in the police station. It is correct that except me no other witness was present in the police station. The police had prepared the papers while sitting in the police station. On the spot no papers were prepared. It is correct that Kulwant Singh witness has not signed farad Ext. PW-2/A in my presence. It is correct that I have not been shown those 7 boxes. It is correct that gunny bags Ext. P-213 and Ext. P-214 were neither opened nor shown to me therefore I cannot say what was kept inside it. Even I don’t know that how many bottles were taken for samples. It is incorrect that I work as a Langri with the police. I have never seen the shop of the accused. It is correct that I cannot say that any liquor was found from the accused. Police neither read over any statement nor it was written in my presence. It is correct that police did not record my statements as per my wish.” From the perusal of his statement, it is evident that in his exanimation-in-chief he has supported the case of the prosecution. But, however, in cross-examination, he has clearly stated that no liquor was seized from the accused in his presence or that he had gone to the shop of the accused and that the police had carried out the investigation in his presence. According to him he never saw the shop of the accused. This witness has made a false deposition. I shall deal with the same separately. But, however, for the purpose of adjudication of the appeal suffice it to say that the contradictions would render his statement to be un-reliable and thus it cannot be said that he has been able to prove the prosecution case beyond reasonable doubt. The remaining police witnesses Sh.Gangbir Singh (PW-1), Vikram Singh (PW-3), Krishan Chand (PW-5) and Jagdish Chand (PW-6) have proved rukka (Ext.PW-7/B), 8 registration of the F.I.R (Ext.PW-4//A) and also the fact that the sealed samples which were kept in their custody were sent to the C.T.L. Laboratory at Kandaghat and report obtained. Jai Pal (PW-7), no doubt, has deposed that he formed the raiding party, carried out the search and recovered the illicit liquor. But, however, in view of the fact that no independent witnesses of the locality were associated and that two witnesses have not supported the case of the prosecution, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. In his cross- examination, he has admitted that there was a house adjoining to the shop of accused Bharat Ram, but, however, he did not make any inquiry as to who was occupying the same. According to him, the shop was open. Importantly, he has not explained as to why he did not associate the neighbour or passers-by in the proceeding. He has not explained as to why he associated the independent witnesses from the distant area and took them to the place of the incident in the Jeep. The trial court has appreciated the material in its entirety and I see no illegality or perversity in the same. No interference at all is called for keeping in view the ratio of law laid down by the Apex Court in Barati Vs. State of U.P. (1974 (4) SCC 258) & Ramji Surja Padvi and another Vs. State of 9 Maharashtra (1983 (3) SCC 629). The appeal is accordingly dismissed. The bail bonds are discharged. I shall now deal with the deposition made by Narain Dass (PW-4) in the Court. From the sworn testimony it is evident that in his examination-in-chief the accused has admitted that he went to Nalhatti along with police and the shop belonging to the accused was inspected in his presence and 212 bottles of liquor were seized by the police in his presence vide seizure memo (Ext.PW-2/A) which was signed by him. But, however, in his cross-examination, he has taken a summer sault and has deposed that liquor was not seized from the accused in his presence and he never went to the shop of the accused, nor was he present during investigation. He denied that any bottles were taken as sample. He has even denied having seen the shop of the accused. Apparently and prima facie this witness has made a false statement during the course of the proceeding, I am of the opinion that PW-4 apparently appears to have committed an offence, inter alia, under Section 193 of the Indian Penal Code for which he deserves to be tried. Accordingly, I direct The Deputy Registrar (Judicial) of this Court to file a complaint against Narain Dass (PW-4) Son of Shri Amar Chand resident of village Sadog, Tehsil and District Shimla, H.P in the court of competent jurisdiction. Ordered accordingly. (Sanjay Karol), Judge. May 15, 2008(R) 10