IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 328 of 2004. Date of Decision: 30th May, 2011. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Dev Raj and another …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. J.S. Rana, Assistant Advocate General. For the respondents: Mr. Surender Verma, Advocate, vice Mr. Subhash Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J. (Oral) The respondents faced trial for the offence punishable under Section 61(1) of the Punjab Excise Act, as applicable to the Himachal Pradesh, for allegedly keeping in possession of 60 pouches of country liquor (Patiala orange brand) by Dev Raj and 72 by Kul Bahadur, respondents. They were acquitted by the trial Court, hence the present appeal by the State. 2. As per the case of the prosecution, on 4.8.2003 at about 9.30 am, ASI Gopal Singh was heading a police-patrolling party at village Tikkar. Whether reporters of the Local papers are allowed to see the judgment? - 2 - They came across the respondents, each one of them carrying gunny-bag. On seeing the police- party they got perplexed. Police got suspicious and carried search of the gunny-bags. They recovered the aforesaid quantity of the country liquor for which they were having no license. Accordingly, Investigating Officer ASI Gopal Singh took one pouch from each of total 11 boxes as sample and the case property was taken into possession vide memo Ext.PW1/A. The sample pouches were sealed with seal impression ‘T’. Sample impression was also taken separately on a piece of cloth Ext.PW1/B. The seal after its use was handed over to PW2 Constable Liaq Ram. 3. Ruka Ext.PW5/A was sent for the registration of the case. Case property was deposited with PW4 MHC Parkash Chand on the same day and on 16.8.2003 the sample-pouches were sent through PW3 Fakir Chand for test to CTL, Kandaghat. 4. As per report Ext.PA, samples so sent were of country liquor. Respondents were challaned in the Court. They were tried, but acquitted by the learned trial Court only on the ground that the - 3 - independent witnesses, though available, were not joined. 5. Heard and gone through the record. 6. At the very outset I would like to say that the acquittal for non-joining of the independent witnesses, in the above fact situation is wrong because the place from where the recovery was made, was not an enclosed place. Secondly, it has come in the cross-examination of PW2 Constable Liaq Ram and PW5 ASI Gopal Singh that the police had tried to associate the witness, but none was available. However, on the reappraisal and scrutiny of the evidence, I find that the link evidence, in the instant case is not complete. 7. ASI Gopal Singh aforesaid in his deposition nowhere stated that the case property was deposited with MHC on the same day or on the very next day by the Investigating Officer, whereas PW4 MHC Parkash Chand stated that the case property and samples were deposited by PW1 HHC Gita Ram. Surprisingly, PW1 Gita Ram did not substantiate this fact nor Investigating Officer stated that it was handed over to Gita Ram aforesaid for its deposit in the - 4 - Malkhana. Further, the abstract of Malkhana register in order to prove its deposit is not placed and proved on record. There is no evidence with respect to sample of seal having been deposited with the case property. 8. Further, the Road Certificate against which the sample parcels were taken to CTL, Kandaghat also did not find the light of the day, which could have guided the Court to reach at an exact and correct conclusion as to what were the other items with the sample parcels, i.e., sample of seal etc. sent for analysis to CTL, Kandaghat through the said Constable. The lithographic impression on Ext.PA put in the laboratory appears to be farce stating that the sample sealed corresponded to the seal sent separately in absence of any such evidence. In view of this, the link evidence is not complete. Thus, the report of analysis could not be linked, therefore, the benefit of which must be given to the respondents. As such, the acquittal of the respondents cannot be interfered with. The appeal is devoid of any merit and hence dismissed. - 5 - 9. The respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. May 30, 2011. (Surinder Singh), J. (rc)