IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No.159 of 2003 Judgment reserved on:26.5.2008. Decided on: June 16, 2008. Pawan Kumar …Petitioner. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioners: Mr. Ramakant Sharma with Ms.Anita Dogra, Advocates. For the respondent: Mr A.K.Bansal, Addl.A.G. Kuldip Singh, Judge: The petitioner Pawan Kumar is in revision against the judgment dated 16.7.2003 passed by learned Additional Sessions Judge, Solan Camp at Nalagarh, in Criminal Appeal No.12-NL/10 of 2001 confirming judgment dated 7.3.2001 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Criminal Case No.57/3 of 1998 convicting the petitioner under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable in the State of Himachal Pradesh and sentencing him to simple imprisonment for three months and to Whether the reporters of the local papers maybe allowed to see the judgment? No …2… pay a fine of Rs.5000 and in default of payment of fine to undergo simple imprisonment for a period of one month. 2. The prosecution case, in brief, is that PW-3 Ranjeet Singh, Constable Dan Singh, PW-2 Constable Bhag Singh, HHG Parma Nand were present at Ghaneri on 1.1.1998 at about 9 a.m. They saw accused carrying a bag who ran away on seeing the police. He was stopped and searched and three bottles of XXX BOXER RUM Ext.P-1 to Ext.P-3 were recovered from his bag. The accused on inquiry disclosed his name Pawan Kumar. He could not show any permit or legal document permitting him to carry three bottles of liquor. The bottles were opened and three nips were taken as sample for chemical analysis. The bottles and nips were sealed with seal ‘T’. The seal impression Ext.PW-2/B was taken separately on a piece of cloth and the seal was handed over to PW- 2 Constable Bhag Singh. The bottles were seized vide seizure memo Ext.PW-2/A. Ruka was prepared and was sent to Police Station and on that basis F.I.R. Ext.PW-3/B was registered. The investigation was conducted by PW-3A HC Ranjeet Singh who prepared site plan Ext.PW-3/C. The case property was deposited with HC Ranjeet Singh who deposited the same in Malkhana and sent the samples for chemical analysis to CTL Kandaghat through PW-1 Constable Ram Lok. The result of chemical analysis Ext.PW- 3/D was received vide which samples were shown to have contained 56.4%, 57.4% and 73% of proof alcohol. On completion of investigation, the challan was presented in the Court. …3… 3. The accused was charged under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable in the State of Himachal Pradesh. The accused pleaded not guilty and claimed trial. The prosecution has examined six witnesses. The accused was examined under Section 313 Cr.P.C., he denied the case of the prosecution. He examined DW-1 Ram Pal in defence. The learned trial Magistrate convicted and sentenced the accused and conviction and sentence of the accused has been maintained by learned Additional Sessions Judge, as noticed above. Hence, the accused has filed the present revision petition. 4. I have heard Mr.Ramakant Sharma with Ms.Anita Dogra, Advocates, learned counsel for the petitioner and Mr.A.K.Bansal, learned Additional Advocate General, for the respondent and gone through the record. Mr.Ramakant Sharma has submitted that both the Courts below have failed to appreciate that there are material contradictions in the prosecution story. The inference drawn by the two Courts below from the evidence on record is wrong. The petitioner / accused has been wrongly convicted and sentenced by the two Courts below. The learned Additional Advocate General has submitted that two Courts below after appreciation have recorded a finding of fact and this Court in revision will not re- appreciate the facts. He has supported the impugned judgment. 5. The prosecution case against the petitioner / accused is that he was carrying three bottles Ext.P-1 to Ext.P-3. He was not having permit or legal authority to carry three bottles of rum and has …4… thus committed an offence under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable in the State of Himachal Pradesh. Ext.PW-2/A is recovery memo of XXX BOXER RUM recovered from the petitioner / accused. In the recovery memo Ext.PW-2/A it has been clearly stated that two nips for chemical analysis were taken from two bottles. PW-1 Constable Ram Lok has stated that on 7.1.1998 MHC Ranjeet Singh had handed over two nips, seal with seal impression ‘T’ for carrying to CTL Kandaghat vide RC No.2/98. The nips were deposited by him at CTL Kandaghat and receipt was handed over back to MHC. Thus, as per prosecution case, only two nips were taken from two bottles and those nips were sent to CTL Kandaghat for analysis through PW-1 Constable Ram Lok. The chemical examiner report Ext.PW-3/D is showing report of three samples. When two nips were taken for chemical analysis as per Ext.PW-2/A and those samples were handed over to PW-1 Constable Ram Lok for carrying to CTL Kandaghat then how report of three samples has been shown in chemical examiner report Ext.PW-3/D that has not been explained by the prosecution. The benefit of this confusion will certainly go to the petitioner. 6. PW-3 Head Constable Ranjeet Singh has stated that they were at Ghaneri, petitioner came there, he tried to run away but he was caught on the spot and recovery of liquor was made at that place from the bag which the petitioner was carrying. PW-2 has stated that there is abadi at village Ghaneri but he has further stated that no one was available on the spot. The prosecution has …5… not led any satisfactory evidence on record to show that any attempt was made to join an independent person when the liquor was allegedly recovered from the bag which the petitioner was carrying. PW-2 has stated that they started from Jogo and reached Ghaneri at 9 A.M. in a private vehicle. PW-3 has stated that distance between Swarghat and Jogo is 14 -15 kilometers. He has further stated that they had not gone to Swarghat but they went up to Ghaneri. The distance between Ghaneri and Swarghat is 2 ½ to 3 kilometers. He has stated that at the relevant time he was posted at Police Post, Jogo and the police party started at 7.30 A.M. through bus. 7. The collective reading of statements of PW-2 and PW- 3 makes it clear that the distance between Jogo and Ghaneri is about 11 kilometers. PW-3 has stated that they started from Police Post, Jogo at 7.30 A.M. A distance of 11 kilometers either in a private vehicle or in a bus should not take more than 20 – 25 minutes even on roads which are not good. Therefore, the police party was at Ghaneri at about 8 A.M. PW-2 has stated that police party was patrolling and was on Naka at Ghaneri. In other words, the police party at that time was ready to intercept any person found indulging in illegal activity. In these circumstances, the police party was expected to join independent persons at the time of search of petitioner. The petitioner came on the spot at about 9 A.M. The police party had sufficient time to join independent persons at the time of search of petitioner, but for …6… reasons best known to the police party they did not join independent persons at the time of search of petitioner. In Raghbir Singh versus State of Punjab, AIR 1976 SC 91, the Supreme Court in Para-9 of the judgment, has observed that there was no independent person to witness the search of the person of the appellant and the seizure of five marked currency notes of Rs.10/- each from his person. The Supreme Court has further observed that there were 15-20 other persons who were assembled there at the time of search and anyone of them could be asked to be a witness to the search but this opportunity was not availed of by the police. On those facts coupled with other material on record, the Supreme Court held that evidence in regard to the search of the person of the appellant and the seizure of the five marked currency notes from him not such as to inspire confidence and cannot be implicitly accepted. In Pawan Kumar versus The Delhi Administration, 1989 Cri.L.J. 127, it has been held that when no offer was made by the police officials to join independent witnesses even though they were present while arresting the accused and no plausible explanation was given for the same that creates doubt regarding the arrest of the accused person. In the present case also, it has come on record that at village Ghaneri there is abadi but why the persons from that village were not associated at the time of search of the petitioner that has not been explained. This creates doubt in the truthfulness of the prosecution case. Thus, the circumstances …7… leading to the recovery of three bottles of rum from the bag of the petitioner are suspicious and have not been cleared by the prosecution by leading cogent and independent evidence. The Two Courts below have not properly appreciated the material on record and have erred in convicting and sentencing the petitioner. The prosecution has failed to prove the case beyond reasonable doubt against the petitioner. In these circumstances, conviction and sentence of the petitioner recorded by the two Courts below is not sustainable. 8. No other point was urged. 9. The result of the above discussion, the revision is accepted and the judgment of conviction and sentence dated 7.3.2001 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Criminal Case No.57/3 of 1998, upheld by learned Additional Sessions Judge, Solan Camp at Nalagarh, on 16.7.2003, in Criminal Appeal No.12-NL/10 of 2001, are set aside. The petitioner is acquitted. Fine amount, if any deposited by him, be refunded to him and his bail bonds are discharged. June 16, 2008. ( Kuldip Singh ) (soni) Judge.