IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 543 of 2003. Decided on 10.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Ashok Kumar. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Anil Jaswal, Deputy Advocate General. For the respondent : Mr. K.G. Sharma and Mr. Virender Bali, Advocates vice Mr. Digvijay Singh, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): A challenge has been laid by the State to the judgment of learned Judicial Magistrate, 1st Class-II, Hamirpur, rendered in Criminal Case No. 15-III of 2000, dated 31.03.2003, whereby the respondent, who was charged with and tried for an offence, under Sections 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh, has been acquitted. 2. The case of the prosecution, in a nut-shell, is that on 12.04.2000, at about 8:15 P.M., A.S.I. Rattan Chand alongwith H.C. Raj Kumar, Constable Besri Lal and Constable 1 Whether the reporters of the local papers may be allowed to see the judgment?No. - 2 - Dhanvir was present at place Bhaleth on patrol duty. They received a secret information that a Jeep bearing no registration number, is standing in front of the shop of Shri Budhi Singh, which was loaded with English liquor without any permit. A.S.I. Rattan Chand alongwith police officials found a Jeep without any registration number standing. Accused was sitting in the Jeep. Search of the Jeep was carried out by the police officials in the presence of witnesses Shri Budhi Singh and Shri Surjit Singh. During search, one carton box of Bag Piper Whisky and two boxes of Double Dog English liquor containing 12 bottles each were recovered from the exclusive and conscious possession of the accused. He was booked for the commission of offence, under Section 61(1)(a) of the Punjab Excise Act, 1914. Out of the three boxes of English liquor, two-two bottles were taken out separately from each box for the purpose of chemical analysis. One-one sample nips were taken out from each bottle of English liquor. The sample nips and the bottles with remaining liquor were sealed with seal impression ‘R’ and were kept in the same boxes. The case property was taken into possession by the police vide memo Ex.-PW 1/A. A rukka Ex. PW 4/A was sent to the police station, on the basis of which, F.I.R. Ex.-PW 3/A was registered. The matter was investigated and the challan was put up. 3. The prosecution has examined four witnesses in all. Accused was examined under Section 313 of the Criminal Procedure Code. He contended that the prosecution witnesses have deposed falsely against him. The learned trial court acquitted the accused. - 3 - 4. PW-1 is Shri Budhi Singh. According to him, in the year, 2000, police officials stopped Mahindra Pick Up Jeep in front of his shop, in which three boxes of liquor, out of which one box containing Bag Piper Whisky and two boxes containing Double Dog Whisky were recovered. Accused was the driver of the vehicle. Police took sample from each box and sealed the sample as well as the liquor and prepared recovery memo Ex.- PW 1/A. He identified bottles Ex. P-1 to P-36. 5. PW-2 is Constable Dhanvir Singh. He stated that from 1997 till 2001, he was on general duty at police station, Sujanpur. At about 8:15 P.M., on 12.4.2000, he alongwith ASI Rattan Chand was present at place Bhaleth on patrolling duty. A secret information was received and thereafter, they alongwith witnesses Budhi Singh and Surjit Singh went near the Jeep standing in front of the shop of Shri Budhi Singh. Accused was present. Jeep was searched and the recoveries were made. 6. PW-3 is Head Constable Charanji Lal. He has proved the recording of F.I.R. Ex.-PW 3/A. S.I. Rattan Chand has appeared as PW-4. He remained posted as A.S.I. at police station, Sujanpur in the year, 2000. He has supported the statement of PW-2. 7. PW-1 Shri Budhi Singh has testified that police officials stopped Mahindra Pick up Jeep in front of his shop. However, in his cross-examination, he stated that police officials had brought the Jeep and sealing of liquor or sample did not take place in his presence. According to PW-2 and PW-4, the Jeep was standing in front of shop of PW-1 Shri Budhi Singh. However, according to PW-1, police officials had brought the - 4 - Jeep and stopped in front of his shop. This is a major contradiction. It is true that the conviction can be made on the basis of the statements made by the official witnesses, however, in the present case, their statements have not been corroborated by PW-1. The other independent witness Surjit Singh was not produced by the prosecution. The prosecution has failed to prove its case against the accused. Accordingly, there is no merit in appeal and the same is dismissed. Bail bonds are ordered to be discharged. (Rajiv Sharma) Judge May 10, 2010. (bhupender)