Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.504 of 2010. Decided on: September 21, 2011. State of H.P. …… Appellant. Versus Madan Lal. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant : Mr. P.M. Negi, Dy. Advocate General. For the Respondent : Mr. Mohit Thakur, Advocate, Surinder Singh, J (oral) : The challenge in this appeal by the State is to the acquittal of the respondent passed be the learned trial Court in Case No.9/3 of 2006 dated 17.9.2010, for the offence punishable under Section 61 (1)(a) of Punjab Excise Act, as applicable to the Himachal Pradesh, for allegedly keeping in possession four boxes containing 96 bottles of 750 ml. of country liquor of Punjab Orange Make and 12 bottles of 750 ml. of Double Dog Whisky, wrapped separately in three sacks. 2. Mr. P.M. Negi, learned Deputy Advocate General vehemently argued that the learned trial - 2 - Court has wrongly acquitted the respondent, on the ground of non-inclusion of the independent witness and production of seal handed over to PW1 HC Jag Pal. 3. I have examined the aforesaid arguments. True it is that both the grounds are not sufficient to acquit the respondent, but however, I find that the link evidence in the instant case is not complete. The report of analysis is not connected with the stuff recovered. 4. Precisely the prosecution case is that on 16.11.2005, PW3 ASI Gautam Chand of CIA was alongwith his staff PW1 HC Jag Pal, PW2 Constable Parkash Chand, C. Kamal Dev and SHO Duglu Ram in the area of Samela Talyana, moving in a Van. When they reached near Lohara Samela, they noticed respondent below a small bridge by which a suspicion arose. The Police party went beneath the bridge and saw that the respondent with three sacks lying nearby out of which he was packing the third one. His identity was asked. Two white sacks were checked. It contained four boxes each containing 96 bottles of 750 ml. of country made liquor of Punjab Orange Make and the third one was having 12 bottle of 750 ml. each - 3 - of Double Dog Whisky. He failed to produce the licence, thus out of the total recovered Punjab Orange liquor four bottles were separated as sample for chemical analysis and two bottles of Double Dog Whisky were separated from third sack. All these bottles were sealed with seal impression ‘A’ and the impression of the seal was separately taken on a piece of cloth Ext.PW1/A. Seal after its use was handed over to PW1 HC Jag Pal. A Ruqa was sent for lodging the FIR. The respondent was arrested and later released on bail. 5. Case property was deposited with PW5 ASI Mulak Raj, who was the then MHC in the Police Station. On 29.11.2005, samples were sent for analysis through PW4 C. Rajesh Kumar to CTL Kandaghat. The report confirmed that it was the licit liquor and IMFL in the aforesaid samples and the percentage of alcohol has been noted in the report of analysis Ext.PX. 6. After completing the investigation, challan was presented in the court for the trial of the respondent and at the end of trial, he was acquitted on the aforesaid grounds. 7. On the reappraisal of the evidence, I find that PW3 ASI Gautam Chand, Investigating Officer did not - 4 - say any where that the case property was deposited by him in the Malkaha, though the aforesaid MHC stated that the case property was deposited with him. HC stated that on 29.11.2005 through PW4 C. Rajesh Kumar samples were sent for its analysis to CTL Kandghat. Neither he nor the Investigating Officer stated having deposited the ‘sample of seal’ in the Malkhana. Further neither the Malkhana Register nor its abstract was placed and proved on record to substantiate this fact. 8. Further PW4 C. Rajesh Kumar did not say that the sample of seal was also handed over to him. Although he stated that he had taken the aforesaid samples through Road Certificate No.112/05, which was deposited by him on the same day in the Laboratory, but the copy of the Road Certificate did not find the light of day which could have been relevant to know whether the sample of seal was also sent for its comparison in the Laboratory. Even the perusal of the report of the Chemical Analysis Ext.PX shows that it only bears the lithographic impression certifying that the seal on the aforesaid sample(s) was found intact and unbroken and tallied with the - 5 - specimen impression of the seal sent separately. In absence of the evidence that the sample of seal was taken to the Laboratory, this certificate becomes farce and appears to have been affixed in a mechanical way, thus, looses its importance. 9. Further I also find that Form No.S 0-29 (Ext.PX) was filled in by the SHO, Police Station Bharari, wherein it has been indicated that the samples were drawn on 28.11.2005 from the Malkhana and were handed over to PW4 C. Rajesh Kumar on 29.11.2005, but there is no explanation worth the name as to where the samples were kept after drawing it from the Malkhana by the SHO on 28.11.2005 till it was handed over to PW4 C. Rajesh Kumar. This fact assumes importance because the seal was entrusted to PW1 HC Jag Pal and the possibility of tampering of the contents cannot be ruled out. 10. It is a settled law that the prosecution has to prove its case beyond reasonable doubt and in case such doubt arises, the benefit thereof has to be given to the respondent. 11. In the aforesaid circumstances, in my opinion, the prosecution could not link the respondent with the - 6 - recovered articles by leading cogent and reliable evidence. The non-production of the Road Certificate and abstract of Malkhana register in view of the statement of the official witnesses, discussed above, impels me to draw adverse inference that if produced it would have supported the respondent. Thus, the case against the respondent stands not proved, hence acquittal of respondent requires no interference. Accordingly, the appeal lacks merit, thus dismissed. 12. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of the case. 13. Send down the records. September 21, 2011. (Surinder Singh) (Pds) Judge.