IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 183 of 2008 Date of decision : June 24, 2009 Gian Chand …Petitioner Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Onkar Jairath, Advocate For the Respondent: Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (Oral) Revision petitioner has challenged his conviction and sentence for offence, under Section 61 (1) (a) of Punjab Excise Act, as applicable to the State of Himachal Pradesh, awarded by the trial Court and affirmed by the appellate Court. Sentence awarded is six months simple imprisonment and a fine of Rs.5000/-. 2. Prosecution case, which has led to the conviction and sentencing of the revision petitioner, is that on 10.4.2007, around 10.30 PM, petitioner was stopped by police at a place called Brada Chowk, when he was driving Mohindra Jeep No. HP- 67-1106. On search, four cartons of country liquor, each containing 12 bottles, were found. One bottle was taken out from each of the four cartons by way of sample. Samples were sent to Chemical Examiner, who vide report Ext. PX, reported Whether reporters of the local papers may be allowed to see the judgment? …2… that they contained contents of country liquor. Petitioner was put on trial, because he pleaded not guilty. 3. Prosecution examined the police officials, who searched and seized the liquor, namely PW-3 ASI Paras Ram, PW-5 Constable Ashwani Kumar and PW-7 Constable Mohinder Singh. The witnesses stated, with one voice, that the petitioner was driving a Mohindra Jeep (Trolla) and on search of that vehicle, four cartons of liquor were recovered. 4. Trial court believed the testimony of the witnesses and convicted and sentenced the appellant, as aforesaid. Appeal filed by the petitioner stands dismissed by the Sessions Court. 5. I have heard the learned counsel for the parties and have gone through the record. 6. There does not appear to be any reason for interfering with the finding of the trial Court as affirmed by the Sessions Court that the vehicle of the petitioner was checked and four cartons of country liquor were recovered. 7. First submission made by the leaned counsel for the petitioner is that independent local witnesses were not associated, though it has come in evidence that 10-12 houses were situated near the place of occurrence. The submission is without merit for the simple reason that search was conducted at an odd hour of the night, i.e. at 10.30 PM, and also because the vehicle was not a closed vehicle but an open vehicle in the shape of a Trolla. Section 100 Cr. P.C. comes into play when search is to be conducted in a closed place. …3… 8. Another submission made by the learned counsel is that independent witness Jagdev singh, to whom seal after use had been given, was not examined and that without the said witness appearing and testifying that the seal was not misused, it cannot be said that the samples had not been tampered with. This submission also merits rejection for the reason that four bottles, one from each carton, had been taken out by way of sample and those bottles, without being opened, were sent to the Chemical Examiner and, hence, there was no chance of any tampering with. 9. Last submission made by the learned counsel for the petitioner is that the petitioner is a sole bread winner in the family and has minor children to maintain and to take care of. He says that there is no evidence that the liquor was illicitly manufactured and that in the absence of said evidence as also the fact that the liquor was in cartons, presumption should be that it was lawfully manufactured and, hence, proviso (iii) to clause (ii) of sub-section (1) of Section 61, as introduced by the Punjab Excise (Himachal Pradesh Second Amendment) Act, 1989, does not come into play. 10. There is no evidence suggesting that the liquor was illicitly manufactured and, hence, the aforesaid proviso, prescribing minimum sentence of six months is not attracted. 11. Looking to the facts and the circumstances of the case as also the fact that contents of only four, out of 48 bottles, have been proved to be of country liquor, I feel ends of justice would be met if the sentence of six months imprisonment, …4… awarded by the trial Court and affirmed by the Sessions Court, is reduced to the sentence of seven days imprisonment, which the petitioner has already undergone, after the dismissal of his appeal. It is ordered accordingly. 12. With the aforesaid modification, in the judgments of the trial Court and the appellate Court, revision petition is dismissed. June 24, 2009 (ss) ( Surjit Singh ), J