HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 718 of 2001 Decided on: 17.10.2008. State of Himachal Pradesh ………Appellant. Versus Ram Kishan ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondent: Mr.Ashutosh Burathoki, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the State of H.P. against the judgment of the court of learned Judicial Magistrate Ist Class, Court No.2, Dehra, dated 16.5.2001, vide which the respondent was acquitted of the charge framed against him under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh. Briefly stated the facts of the case are that on 10.1.1997, at about 1.35 p.m., H.C. Amar Nath, alongwith two police officials, was present in the area of Gunan. He noticed one person coming from jungle side carrying a green canny in his right hand. On seeing the police party, he tried to run away and was _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - apprehended and the canny was taken in possession, which was allegedly containing 2250ml illicit liquor. The case property was taken in possession and after investigation, the challan was filed before the learned trial Court, who tried the respondent, leading to his acquitted, as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that the main ground taken by the learned trial Court was that the prosecution case rests upon the statements of police officials only and as such the evidence has to be appreciated with more care and caution. The another ground taken by the learned trial Court was that there was no compliance of the provisions of Section 100(6) Cr.P.C. that the copies of the recovery memo should have been supplied to the accused which were not supplied and the sample of the seal handed over to PW-2 LHC Bhumi Singh was not produced during the trial of the case. On a perusal of the record of the case, it is clear that the prosecution story is that the accused was apprehended suddenly and therefore, two police officials, namely, LHC Bhumi singh PW-2 and one Constable Arvind Kumar were associated by the Investigating Officer PW-3 H.C. Amar Nath. In the statement of PW-2 LHC Bhumi Singh, it was suggested to him that there is a block building near the place of recovery, which fact was admitted by him but there is nothing in the statement of the I.O. Amar Nath PW-3 that he made efforts to join independent witnesses from the nearby place or from the block building or since it was an isolated place, he could not associate independent witnesses. A perusal of the statement of PW-3 HC Amar Nath rather shows that he neither made any efforts to join any independent witnesses nor gave any explanation in his statement that he could not join independent witnesses since it was an - 3 - isolated place. It is not necessary that independent witnesses must have been associated in case the recovery has been effected suddenly or from an isolated place, but explanation should have been given by the I.O. Amar Nath PW-3, which is not there. PW-3 H.C. Amar Nath has denied that there were 4-5 houses near the place of recovery but PW-2 Bhumi singh has admitted about the existence of a block building nearby, but none was associated from that building. There is nothing to show that efforts were made to join the independent witnesses. The seal was not produced by PW-2 Bhumi Singh, who did not lodge any report in regard to the loss of seal, though this is not the material infirmity but in view of the fact that the case of the prosecution rests upon the statements of police officials, even minor contradiction cannot be ignored. Apart from the above, it is clear from a perusal of the statements of the witnesses that the copy of recovery memo was not supplied to the accused as is required under Section 100(6) of the Cr.P.C. A perusal of the record of the case also shows that the prosecution had not examined the MHC with whom the case property was deposited so that it could be inferred that the case property was kept in safe custody by the police till it was sent to the office of the Chemical Examiner through PW-1 LHC Tungal Singh. From the above discussion, it follows that the findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. Therefore, the appeal filed by the State of H.P. is dismissed being without any merit. The bail bonds furnished by the respondent shall stand discharged. October 17, 2008. (V.K. Ahuja), (TILAK) Judge.