IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 309 of 2001 Date of Decision : 5.3.2008 State of H.P. …Appellant. Versus: Partap Singh …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Additional Advocate General. For the respondent : Mr. Balbir Chauhan, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 27.1.2001 passed by the Additional Chief Judicial Magistrate, Theog, District Shimla in Case No. 149-III of 1996, acquitting the accused of the charged offence. As per the case of the prosecution on 11.7.1996, SI/SHO Bhajan Dev, P.S. Kotkhai was present at Neharghati, Kotkhai, H.P. when he received a secret information that the accused who was indulging in the business of illicit liquor had stored huge quantity in his premises. The rukka was sent through C.Kulbhushan (PW-4) and on the basis of the information received, 1 Whether reporters of Local Papers may be allowed to see the judgment? - 2 - an F.I.R. (Ext.PW-5/A) bearing No.73/1996 dated 11.7.1996 under Section 61(i) (a) of the Punjab Excise Act, 1914 ( as applicable to the State of Himachal Pradesh) was registered at Police Station, Kotkhai, H.P. The raiding party was constituted on the spot and Sh.Sahender Chauhan (PW-1) and Sh.Amrit Lal (PW- 6), independent witnesses were associated for the said purpose. The search was carried out at the premises belonging to the accused and two Cans containing ten litres and two litres of illicit liquor was recovered from there. Samples of the same were collected . The contraband alongwith the samples were seized vide seizure memo (Ext.PW-1/A) which was sent for Chemical Analysis. With the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for an offence under Section 61(i)(a) of Punjab Excise Act, 1914, to which the accused did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 6 witnesses and the statement of accused under Section 313 Cr.P.C. was also recorded. Considering the material on record, the learned court below acquitted the accused of the charged offence on the ground that the version of the prosecution was not supported by one of the independent witnesses and, therefore, it could not be said that the prosecution had been able to prove its case beyond reasonable doubt. I have heard the learned counsel for the parties and perused the record. Sh. Hans Raj (PW-2) and Sh. Geeta Ram (PW-3) are the police officials, who have received the sample and the seized contraband and sent the same for Chemical Analysis. The I.O. in the present case has not been examined and the report of Chemical Analysis has also not been placed on record. Sh. Kulbhushan (PW-4) has deposed to the effect that he brought the rukka to the Police Station for the purpose of registration of the F.I.R. In his cross- - 3 - examination, he has admitted that there are 5 – 6 houses in Neharghati. According to him, Bari village of PW-6 and Loshta, village of PW-1 are within the radius of 1 – 2 kilometers of Neharghati. ASI, Subhash Chand (PW-5) has only deposed with regard to the registration of the F.I.R. Sh. Sahender Chauhan (PW-1) and Sh. Amrit Lal (PW-6) are the independent spot witnesses, who were associated with the raiding party. Importantly, PW-1 has not supported the case of the prosecution. In his examination-in-chief, he has stated that Can was with the police and he had not seen the same being recovered from the accused. According to him, there were 7 – 8 persons present at the spot. This witness has not supported the prosecution, but has given another version leading to the innocence of the accused. The statement of Sh. Amrit Lal (PW-6), in my view, cannot be relied upon for the purpose of convicting the accused for the charged offence as he has contradicted himself. He has deposed that the raiding party was constituted just outside the premises belonging to the accused, but has subsequently stated that PW-1 had met them on the way to the house of the accused. Further, as per version of PW-6, two samples were taken by the police officials which were recovered vide seizure memo Ext.PW-1/A. This version stands contradicted by the statement of PW-2 and Ext.PW-1/A. According to PW-2 and Ext.PW-1/A, only one sample was taken by the police. The prosecution story appears to be doubtful for yet another reason. According to PW-1, 7 – 8 persons were present at the spot when the raiding party reached there, but however, as per PW-6, only seven persons including the members of the raiding party were present at the site. As has already been held, the report of the Chemical Analysis has not been placed on record. It, therefore, cannot be said that the accused had committed the charged offence. There is no material on record to link the accused with the contraband. In the absence of any cogent and convincing evidence, the - 4 - accused cannot be held to be guilty of the charged offence. Mere registration of F.I.R. would not prove the guilt of the accused. The missing of the sample has not been explained, and if only one sample was collected then obviously the version of PW-6 cannot be relied upon. The prosecution story is nothing but a concoction of stories. The accused has had the advantage of having been acquitted by the court below. The trial court has examined the entire material in its entirety and I find no perversity in the same. The prosecution has failed to prove its case against the accused beyond reasonable doubt. For the aforesaid reasons, the present appeal is dismissed. The bail bonds are discharged. (Sanjay Karol), Judge. March 5, 2008 (GR).