IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 141 of 2003. Decided on: March 17, 2010. _____________________________________________________ State of H.P. ……..Appellant. Versus Jagat Ram and others. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the appellant : Mr. J.S. Rana, Asstt. Advocate General. For the respondents : Mr. S.R. Sharma, Advocate, vice Mr. Bhupinder Chaudhary, Advocate. ____________________________________________________________ SURINDER SINGH, J (oral): The respondents were tried and acquitted, for the offence punishable under Section 61(1)(a) of Punjab Excise Act, as applicable to the Himachal Pradesh, allegedly keeping in possession of 36 bottles of I.M.F.L. while transporting in Maruti Van No.HP-02-2819, without any valid permit. In short, the case of the prosecution is that on 28th March, 1995, PW8 ASI Lal Singh alongwith other police officials was on patrolling duty in the cantonment area, Kasauli. At about 7.45 p.m., they spotted the aforesaid Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - Maruti van near ‘Tibetan shop’ in the front of English Liquor Vend. It raised some suspicion. The car was stopped by the police party. PW2 Jeet Singh and PW3 Des Raj were included as independent witnesses and in their presence, the search of Maruti Van was conducted. They found the respondent Ram Dayal on the steering wheel and Jagdish Chand was sitting besides him on the front seat, while respondents Jagat Ram and Satish Kumar both were sitting on the rear seat. On the search of the vehicle, the police recovered three cartons from the boot space of the car, out of which one carton was containing 12 bottles of English wine marka No.1 McDowell’s whisky and second carton was containing 11 bottles of English wine marka of McDowell’s whisky and one bottle of Colonel Special and the third carton was containing, 9 bottles of McDowell’s Premium Malt whisky and 3 bottles of McDowell’s Vintage Classic. The respondents failed to prove any permit, as such, three sample nips from three bottles of Marka No.1 McDowell’s, two sample nips from the two bottles of McDowell’s, one sample nip from Colonel Special, two sample nips from two bottles of McDowell’s Premium Malt whisky and one sample from the bottle of McDowell’s Vintage Classic, were taken. - 3 - Thus, all the nine sample nips were separately sealed with seal impression ‘A’ and the nine bottles from which the samples were taken were also sealed with the same seal. The case property alongwith Maruti Van in question were taken in possession vide memo Ex.PW2/A, in the presence of the aforesaid witnesses. Ruqa Ex.PW8/B was sent to the police station, for registration of the case, on the basis of which FIR Ex.PW7/A was formally registered. The case property was deposited with PW1 MHC Rajinder Sharma. On 17.4.1995, nine sample nips were sent through PW4 C. Amar Singh vide R.C. No.9/95 to CTL Kandaghat for its examination. On the receipt of the report of analysis Ex.PX, the challan was presented in the Court, for the trial of the respondents. The respondents were charge-sheeted for the aforesaid offence. They abjured the guilt and claimed trial. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the allegations against them. At the end of the trial, the respondents were acquitted. - 4 - Heard and gone through the record. At the very outset, I would like to point out that the independent witnesses aforesaid did not support the case of the prosecution at all. Further regrettable feature of the case is that the Investigating Officer PW8 Lal Singh nowhere stated that from the seized quantity, the samples were drawn, as alleged in the prosecution case. He also did not make any reference about fixing of the seal and depositing the case property with the MHC. Although, PW1 HC Rajinder Sharma stated that at the relevant time, he was working as MHC and the case property was deposited with him by ASI Lal Singh, but later he proceeded on leave and the charge was handed over to HC Sat Parkash. The samples were allegedly taken on 17.4.1995 for analysis through RC by C. Amar Singh, but he did not say anywhere as to who entrusted the samples alongwith RC to him for its analysis. The road certificate has also not been produced and proved on record. He further stated that after depositing the sample parcels in CTL Kandaghat, obtained receipt and handed over it to the MHC. Neither PW1 HC Rajinder Sharma has lent corroboration to it nor HC Sat Parkash, to whom the charge was handed over by him, was at all examined to substantiate this plea. - 5 - There is also breach in the link right from the recovery of the alleged articles till the deposit of samples into the laboratory. In the absence of the cogent evidence, the report of the analysis Ex.PX could not be connected with the articles allegedly recovered from the respondents. Further, I also find that there is material contradiction insofar as the recovery of the alleged articles from the Van in question is concerned. PW8 ASI Lal Singh stated that he spotted the Maruti Van near the liquor vend and on getting suspicious, it was stopped, whereas, PW5 HC Hoshiar Singh stated that the Maruti Van was parked near the liquor vend and on seeing the police party, they had tried to fled away. Not only this, PW6 C. Tarsem Lal, who was also with the Investigating Officer stated that after stopping the said Maruti Van, Jeet Singh and Des Raj witnesses were called to the spot, which narration is contrary to the statement made by PW8 ASI Lal Singh that they were associated earlier. Thus, for the aforesaid reasons, in my opinion, when the link is not complete and the samples were not stated to have been taken and - 6 - sealed from the recovered stuff, the acquittal of the respondents cannot be faulted with. As such, the appeal is without any merit, hence dismissed. The respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. Send down the records. (Surinder Singh), Judge. March 17, 2010. (Pds)