1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 14 of 2002. Date of Decision: 21-11-2008. ____________________________________________________________ State of H. P. Appellant. Versus Punam. . Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. Vikas Rathore, Advocate. For the respondent : Mr. Dalip K. Sharma, Advocate. ______________________________________________________________ SURINDER SINGH, J. (ORAL) Heard and gone through the record. Briefly, the case of the prosecution is that on 16-5-91 at about 5.00 P.M near Chatral Gaj Khad the respondent noticed the patrolling party headed by A.S.I. Hari Chand (PW6) and she tried to escape. On getting suspicion, the respondent was over-powered. The police noticed a Jarricane with her. On checking, it was found containing about three bottles of illicit liquor out of which one nip as sample was taken and sealed with seal impression ‘H’. The sample of seal was alleged to have been taken separately and the seal, after its use, was given to PW1 Shadi Lal Constable. The case property was taken into possession vide Memo Exhibit PW1/A in the presence of PW1 Constable Shadi Lal. Ruka Exhibit PW5/A was sent for the registration of the case through PW1 on the basis of which FIR Exhibit PW5/B was registered. PW6, the then A.S.I. Hari Chand had prepared the site plan Exhibit PW6/A of the place where the respondent was apprehended. The case property was deposited with PW3 Jeevan Sing. As case of the prosecution, the Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 sample nip was handed over by him to PW4 Constable Parmeshwari Dass who took it for chemical examination to CTL Kandaghat through RC No. 63/21. On its examination, it was found to be that of illicit liquor. The report is Exhibit PA to this effect. After recording the statements of the witnesses, the challan was presented in the court for the trial of the respondent. The respondent pleaded not guilty to the charge framed under Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. To prove its case, the prosecution examined PW6 the then A.S.I. Hari Chand, Constables PW1 Shadi Lal and PW2 Subhash Chand, PW3 Jeevan Singh MHC, PW4 Parmeshwari Lal, PW5 A.S.I. Mohar Singh. The defense of the respondent was denial simplicitor. At the end of the trial, the respondent was acquitted. As a matter of fact, in order to hold the respondent guilty for the offence charged, the prosecution is obliged to prove that the article which was recovered from the respondent was an offensive matter. For that the prosecution is also under obligation to prove that the link evidence is complete from the recovery till its examination in the laboratory. But in the instant case, I am finding myself at loss to find out any such link to which the prosecution has proved and that is the main reason that the case of the prosecution has fallen to the doll-drums. PW6 A.S.I. Hari Chand no where stated as to whom the case property was handed over by him after its recovery whereas, PW3 Jeevan Singh did not state when it was deposited by A.S.I. Hari Chand in the Malkhana. The entry in the relevant register has not been proved. According to MHC Jeevan Singh, on 9.6.1991 he had sent sample-nip vide RC No. 63/21 for its examination through PW4 Constable Parmeshwari Lal but the testimony of PW Parmeshwari Lal reveals something else. He stated that the sample was handed over to him on 9-4-1991 by MHC to which he deposited on 10.4.1991 in the laboratory and after obtaining its receipt, he handed over the road certificate along with the receipt to the MHC whereas the date of recovery is 16.5.1991. Neither the road certificate nor its copy 3 was produced and exhibited during the trial of the case. Further the report of analysis Ex. PA even falsify the above stand. The endorsement on the report did not show as to who had deposited the sample in the laboratory. The sample in the FIR is shown to have been received on 12.6.91. The another regrettable feature of the case is that neither the seal nor sample of seal taken on the day of alleged recovery were produced and proved during the trial. The statements of PW3 and PW4 coupled with the report of analysis goes to show that there is absolutely no link in the sample taken on the spot and so sent to the laboratory for its examination.. Thus all these facts are irreconcilable which goes to the root of the case. As such, the acquittal of the respondent recorded by the learned trial Court cannot be faulted with for the above reasons. The appeal sans merit and is accordingly dismissed. (Surinder Singh) Judge. November 21, 2008. (bm)