IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 515 of 2004. Decided on: May 23, 2011. _____________________________________________________ State of H.P. ……..Appellant. Versus Malkiat Singh and another. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondents : Mr. N.S. Chandel, Advocate, vice Mr. Dinesh Thakur, Advocate for respondent No.1. None for respondent No.2. ____________________________________________________________ SURINDER SINGH, J (oral): The acquittal of the respondents in Criminal Case No.99-III/01, passed on 18.5.2004 by the learned trial Court has been challenged by the State for the offence punishable under Section 61 (i) (a) of Punjab Excise Act, 1914 as applicable to Himachal Pradesh. Leave to appeal was granted on 2.12.2004 only against respondent Malkiat Singh by this Court. 2. Heard and gone through the evidence on record. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. In short, the prosecution story can be stated thus. During the intervening night of 24th and 25th April, 2001 around 12.15 a.m., an excise raiding party headed by PW1 E.T.O. Narain Singh intercepted Jeep No.HP-54-9785, which was being driven by respondent Malkiat Singh near village Panalth coming from the side of Nagrota Surian. It was found loaded with the country liquor as follows:- Sl. No. Kind of Wine Batch No. and Date. Quantity 1. Bagpiper Whisky 41, March, 2011 10 boxes x 12 bottles 2. McDowell Whisky 01 April,2011 3 boxes x 12 bottles 3. Aristocrat Whisky February 01,064 5 boxes x 12 bottles 4. Commando XXX Rum 30th March,2001 10 boxes x 12 bottles 5. Beer God Father 8.25%, 16th April, 2001 5 boxes x 12 bottles 6. Country Liquor Patiala Orange 180 ML. 44 boxes x 50 pouches 7. Patiala Orange (Desi) 208 March,2001 4 boxes x 12 bottles. 4. The respondent aforesaid could not produce the permit and another occupant Bhagwan Dass ran away from the spot. 5. Police was informed vide letter Ext.PW1/B, which culminated into FIR Ext.PW6/A under the aforesaid section. Police took into possession the - 3 - aforesaid recovered articles and PW6 Daya Nand SI/SHO, Police Station Jawali took samples of each kind of the aforesaid articles in seven separate nips. He also prepared site plan Ex.PW6/C, took into possession the recovery memo Ex.PW1/A prepared by the Excise officials and prepared memo Ex.PW1/C. Case property was deposited in the Malkhana. Samples aforesaid taken by the police were sent for its analysis to CTL Kandaghat. Police arrested Malkiat Singh respondent as well as Bhagwan Dass and later they were enlarged on bail. On the receipt of the report from CTL Kandaghat Ex.PW6/D which confirmed the fact that the samples were of the country liquor and one of Beer. 6. After completing the investigation, challan was presented in the Court for the trial of the respondents. The respondents were charge-sheeted, tried and acquitted by the learned trial Court on the grounds that the so-called independent witnesses PW3 Janmej Singh and PW4 Surinder Singh Pradhan and Up-Pradhan respectively, did not support the case of the prosecution. Statement of PW1 E.T.O. Narain Singh Dharamshala was contrary to the - 4 - statement of PW2 E.T.I. Parkash Chand and also that the link evidence in the instant case is not complete. 7. PW1 E.T.O. Narain Singh stated that he gave a signal to stop the vehicle in question, but it did not stop, as such it was followed and apprehended at some distance and recovered the aforesaid quantity in the presence of Pradhan and Up- Pradhan and prepared the recovery memo Ex.PW1/A, whereas, PW2 E.T.I. Parkash Chand stated that the vehicle in question was signaled to stop, it stopped there, but did not say that it did not stop and it was chased and apprehended as stated by PW1 aforesaid. According to him, recovery of the aforesaid articles was effected in the presence of Pradhan and Up-Pradhan. Thus, statements of both these witnesses are contradictory to each other with respect to interception of vehicle in question. Further they did not explain that during the dead of night, how PW3 Janmej Singh Pradhan and PW4 Surinder Singh Up-Pradhan happened to be present on the spot when none of them were called and associated during the search operation. Significantly, both the alleged witnesses did not support the case - 5 - of the prosecution. According to them, they signed the recovery memo aforesaid in the Police Station believing it to be true on the representation of the Excise and Taxation Officer. No samples were taken by the Excise & Taxation Officer of the recovered quantity on the spot. Police took into possession the recovered articles and according to PW6 SI/SHO Daya Nand, each kind of the articles recovered was taken in seven nips. He did not spell out what was the seal used on the samples and whether the sample of seal was taken separately and also that the seal after its use was handed over to any of the independent witnesses or any other police officials. Further he has not made any reference in his statement whether the case property was deposited in the Malkhana with the MHC, even the MHC in the instant case has not been examined. The extract of the Malkhana register has not been placed and proved on record. There is also nothing in evidence to show that on which date, the samples were sent for analysis to CTL Kandaghat. 8. Further, PW5 Constable Rajiv Kumar, who is stated to have taken the sample to the Laboratory - 6 - stated that he had taken one nip vide RC No.51/21 to CTL Kandaghat, which was deposited on 16.5.2001 in the Laboratory. He neither stated the number of FIR in which case he took the sample to the Laboratory nor the copy of RC has been placed and proved on record. Further in the last line of examination-in-chief he stated that he had taken five sample nips for analysis, but in the instant case, the Investigating Officer PW6 Daya Nand did not make any reference of taking a particular number of nips from each of the seven types of quantity recovered, but the memo Ex.PW1/C makes the reference shows that he had taken one samples from each brand, which was recovered and sealed with seal impression “D”, but during the trial, he did not at all testify about this fact. 9. The alleged incident took place during the intervening night of 24th/ 25th April, 2001. The samples as per PW5 Constable Rajiv Kumar were deposited on 16.5.2001 in the Laboratory, but the prosecution failed to link the report of the analysis Ex.PW6/D with the alleged articles recovered from the vehicle in - 7 - question. Thus, the prosecution has miserably failed to prove the link evidence in the instant case. 10. For the reasons aforesaid, in my considered opinion, the acquittal of respondent Malkiat Singh cannot be interfered with. Therefore, the appeal sans merits and is accordingly dismissed. 11. Respondent Malkiat Singh is discharged of his bail bonds entered upon by him during the proceedings of the case. 12. Send down the records. (Surinder Singh), Judge. May 23, 2011. (Pds)