1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 520 of 2001. Decided on: August 05, 2008 ____________________________________________________________ State of H.P. ……..Appellant. Versus Chet Ram. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Guleria, Law Officer. For the respondent : Mr. Anup Chitkara, Advocate. ____________________________________________________________ SURINDER SINGH,J (oral): The respondent was tried and acquitted for the offence punishable under Section 61(1)(a) of Punjab Excise Act, as applicable to Himachal Pradesh for keeping in his actual and conscious possession of one Canny containing 7 bottles of illicit liquor beneath his bed kept concealed in shreds. As per the prosecution case, on 15.4.2000 at about 6.50 a.m., PW6 HC Kalyan Singh accompanied with PW3 LHC Om Prakash was present in village Sangrah, where he got the information that the respondent was dealing in illicit liquor and if his house is raided, the illicit liquor in good quantity could be recovered. On this, he jotted down this information and sent a ruqqa Ex.PW4/A through PW3 LHC Om Prakash, for the registration of the case to the police station, on the basis of which Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 FIR Ex.PW4/B was formally registered. PW6 HC Kalyan Singh proceeded to the spot and joined PW2 Bimla Devi, Bheem Dutt and Hira Devi as independent witnesses and searched the house of the respondent and recovered the aforesaid quantity of illicit liquor from beneath his bed a stated above. On the recovery of the Jeri-cane containing 7 bottles of illicit liquor, sample was taken in a nip, which was sealed with seal impression ‘T’. The remaining quantity of the liquor was also sealed in the Canny with the same seal and sample of seal was taken on a piece of cloth; seal after its use was handed over to witness Bheem Dutt (not examined). Thereafter on 26.4.2000, the case property was deposited in the Malkhana with PW4 MHC Kamlender Sigh through PW1 C.Ram Kumar to whom it was allegedly handed over by PW3 LHC Om Prakash. It is also the case of the prosecution that on 28.4.2000, the sample of the illicit liquor was sent to CTL Kandaghat through PW5 C. Hardayal Singh for its analysis. As per the report, it was found to be that of illicit liquor. After completing the investigation of this case, the challan was presented in the court, for trial against the respondent. The respondent was charge-sheeted. He pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon the respondent were put to him. He denied all 3 those circumstances; however, he did not lead any evidence in defence. On the completion of the trial, the leaned trial court Jettisoned the prosecution evidence on the ground that the statement of the independent witness PW2 Bimla Devi was not free from doubt as she had inimical relations with the respondent, whereas, Hira Devi and Bheem Dutt were not examined to inspire confidence in the prosecution Case. Consequently, the respondent was acquitted. The State felt aggrieved by the acquittal of the respondent and filed the instant appeal on the grounds that the learned trial court did not appreciate the evidence in the right perspective and passed the impugned judgment on conjecture and surmises. Shri J.S. Guleria, learned Law Officer has vehemently argued that the learned trial court has wrongly disbelieved the witnesses of the prosecution and in fact the official witnesses and the independent witness PW2 Bimla Devi has corroborated the prosecution version and further that the report of the Chemical Analyst confirmed that the sample sent was that of illicit liquor, therefore the case against the respondent stood proved. Contra, Shri Anup Chitkara, learned counsel for the respondent has supported the impugned judgment of the acquittal and further argued that the link evidence in this case is not complete and statement of PW2 Bimla Devi was not worth inspiring confidence. 4 I have given my thoughtful considerations to the rival contentions of the parties and have carefully examined the evidence on record. As a matter of fact, the police reached the spot on the complaint of PW2 Bimla Devi against the respondent, who was inimically disposed of, therefore, her statement is to be closely scrutinized. According to her, she alongwith the other witnesses named above were associated by the police during the raid of the house of the respondent and the illicit liquor was recovered. PWs Hira Devi and Bheem Dutt were not examined during the trial of the case. Now it has to be seen whether the substance recovered was illicit liquor, which falls within the mischief of offence charged? In the instant case the recovery of the alleged quantity was made on 15.4.2000 and according to PW1 Ram Kumar it was handed over by LHC Om Prakash on 26th April, 2000 to him and on the same day, it was deposited with MHC PW4 Kamlender Singh, which fact is admitted by MHC. PW6 HC Kalyan Singh has not stated where this case property remained from the date of its recovery i.e. 15.4.2000 till 26.4.2000 and even LHC Om Prakash has not stated when the case property was handed over to him. The prosecution has to examine every witness who handled the case property from the time of its recovery till its deposit in the Laboratory, to over rule the possibility of its tempering, so there is a missing link in the entire case on this point. Therefore, keeping in view the relations of PW2 with the respondent and non- examination of Bheem Dutt to whom the seal was handed over, the 5 possibility of tampering the case property cannot be ruled out. As such, the prosecution has failed to prove the case by leading the cogent evidence on record that the alleged article which was recovered from the possession of the respondent was illicit liquor. Therefore, the appeal sans merit, accordingly, it is dismissed. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. Send down the records. (Surinder Singh), Judge. August 05, 2008. (Pds)