IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 315 of 2001 Date of Decision : 3.4.2008 State of H. P. …Appellant. Versus: Mohd. Rafiq & another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondents : Mr. Sanjeev Kuthiala, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 30.12.2000 passed by the Addl Chief Judicial Magistrate, Court No.2, Paonta Sahib, Distt. Sirmaur, H.P., in Criminal Case No. 30/3 of 1997, titled as State of H.P. v. Mohd. Rafiq and another acquitting the accused of the charged offence. As per the case of the prosecution, on 12.2.1997 Head Constable Rupender Kumar (PW-8) accompanied by Constable Shallender Kumar (PW-2) and Kamal Kant during investigation of another case was present at a place known as 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Khala Haripur Khol, Paonta Sahib, H.P., when at about 8.40 P.M. a scooter being driven by the accused Mohd. Rafiq was stopped and searched with the help of a torch light. Accused No.2 Jagir Singh, pillion rider, was carrying a bag. On suspicion, the bag was searched and it was found that there were 40 polythene pouches containing 200 mls. of Shimla No.1 country liquor. In the absence of any permit, PW-8 took into possession the pouches and prepared a sample and sealed the same vide memo Ext.PW-2/A. Rukka Ext.PW-8/B was sent to the police station on the basis of which FIR No. 67/97 (Ext.PW-5/A) under Section 61(1(14) of the Punjab Excise Act and also under Sections 182, 192 & 196 of the Motor Vehicles Act was registered with Police Station Paontasahib, Distt. Sirmaur. The sealed sample was sent for chemical analysis and the report of the Chemical Examiner Ext.PX was also taken on record. With the completion of the investigation, the challan was presented in the Court for trial. Accused Mohd. Rafiq was charged for an offence under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of Himachal Pradesh) as also under Sections 192 & 196 of the Motor Vehicles Act, and the accused Jagir Singh was charged for an offence under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of Himachal Pradesh), to which they did not plead guilty and claimed trial. 3 In order to prove its case, the prosecution examined 8 witnesses and statements of the accused persons u/s 313 Cr.PC were also recorded. Appreciating the material on record, the Court below acquitted the accused of the charged offence for the reason that the prosecution witnesses did not inspire confidence and there was nothing to prove the guilt of the accused beyond reasonable doubt. I have heard the learned counsel for the parties and perused the record. S/Shri Tikka Ram (PW-1), Ajay Kumar (PW-3), Viender Kumar (PW-4), Devi Ram (PW-5), Deep Singh (PW-6) & Rajesh Kumar (PW-7) are the witnesses who have proved the registration of the FIR, the sample having been sent for chemical analyses and also the report of the Chemical Analyst. From their testimonies, it is clear that the sealed sample was containing country liquor with 50% proof alcohol strength. However, this by itself would not be sufficient to prove the guilt of the accused with the commission of the charged offence. The testimony of Shri Shallender Singh (PW-2) and Shri Rupinder Kumar (PW-8) needs to be appreciated for the same. Undoubtedly, PW-2 & PW-8 have proved the case of the prosecution but, however, their sole testimony in the absence of any corroboration, from any independent witness does not inspire confidence and it cannot be said that the prosecution has 4 proved the case beyond reasonable doubt. Both these witnesses have admitted that the incident took place on a public highway having movement of traffic and people. They have admitted that on the spot there is a Check Post of the Forest Department and the Excise Department of the State where guard and other excise officials are always posted. PW-8 has admitted that the officials are posted round the clock and there were independent witnesses available at the site but however, he did not associate any person while carrying out the search or seizing the case property. Further, as per the case of the prosecution, the accused persons were searched at night in the torch light. As per the version of PW-2, PW-8 was carrying the torch but however, PW-8 is absolutely silent about the same. Further according to PW-2, all the proceedings were conducted at the spot in absolute darkness which according to PW-8 took about 1½ hour of time. In the absence of any light, it is improbable that the proceedings could have been completed on the spot in absolute darkness. Why no independent witness was associated has not been explained by the prosecution. The prosecution story is full of doubts and suspicion. The accused have had the advantage of having been acquitted by the trial Court. The material has been considered by the Court below in its entirety. There is no perversity in the same. I see no reason to interfere with the findings and 5 conclusions of the Court below and the appeal is accordingly dismissed. Bail bonds stand discharged. ( Sanjay Karol ), Judge. April 3, 2008 (rana)