IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.689 of 2001 Date of decision:23-10-2008. ______________________________________________________ State of Himachal Pradesh Appellant Versus Gurprit Singh Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja,J. The Hon’ble Mr. Justice Whether approved for reporting1?No. For the appellant: Mrs. Subh Mahajan, Dy Advocate General. For the respondent: Mr.S.D.Gill, Advocate. V.K.Ahuja,J(Oral). This appeal has been filed by the State of Himachal Pradesh against the judgment of the Court learned Chief Judicial Magistrate, Shimla dated 16.7.2001, vide which the respondent was acquitted of the charge framed against him under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh. Briefly stated, the facts of the case are that on 2.12.1998 Head Constable Rajesh Kumar alongwith Head Constable Sant Singh and Constable Kanshi Ram, was present in Middle Bazar, Shimla in connection with patrol duty and he apprehended the respondent carrying a plastic bag, which allegedly contained 20 pouches of country liquor. One Dalel Singh was associated as an independent witness. The sample was sent for chemical analysis and on receipt of the Chemical Examiner’s report, the challan was filed before the learned trial Court who tried the respondent leading to his acquittal. Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 I have heard Mrs. Subh Mahajan, learned Dy. Advocate General for the appellant and Mr. S.D.Gill for the respondent and have perused the record of the case. The submissions made by the learned Dy. Advocate General were that there is a statement of the Investigating Officer, which has been duly corroborated by another constable and one eye witness and, therefore, the findings of the learned trial Court holding that the prosecution has failed to prove its case beyond any reasonable doubt, are not sustainable being perverse and are liable to be reversed accordingly. From a perusal of the record of the case, it is clear from the Statement of PW-4 Rajesh Kumar Investigating Officer that he was present in the area in connection with the patrol duty and he apprehended the respondent and effected recovery. In his statement, he simply stated that he had associated Dalel Singh in the raiding party, who had met him at the spot and was associated before conducting the search. He did not state that he made any attempts to associate two independent and respectable witnesses of the area before conducting the search of the person of the respondent. He, therefore, failed to comply with the mandatory provisions of Section 100(4) Cr.PC in this regard and failed to give any explanation for not joining two independent and respectable persons as witnesses of the area. He stated that Dalel Singh was joined before the search of the person of the respondent. The said Dalel Singh was examined as PW-1, who stated that he was associated prior to the search whereas PW-3 Constable Kanshi Ram who was accompanying the Investigating Officer, has stated that Dalel Singh was not associated earlier but was called after the accused had been apprehended and had been asked about the permit for the liquor, if any. Coming to the fact that if this witness was an independent witness, he admitted that he belongs to 3 Ghumarwin in District Bilaspur which is quite away from Shimla. He admitted that he does not do any work meaning thereby that he was an unemployed and cannot be termed as independent and respectable witness of the area where the search was conducted. He denied the suggestion that he has appeared as a police witness in about 25 cases. PW-3 Kanshi Ram had not ruled out the possibility that PW-1 Dalel Singh may have been associated in 20- 25 cases as a witness. From the above discussion, it is clear that the Investigating Officer had failed to make attempts to comply with the provisions of Section 100(4) Cr. P.C. since independent and respectable witnesses could have been available. The respondent was suddenly apprehended in Middle Bazar, Shimla where there are many shops which might have been open and some shopkeepers could have been associated, but the Investigating Officer did not associate them, nor gave any explanation for not associating two independent and respectable witnesses of the area. The learned trial Court had also observed that there is some contradiction regarding the place of recovery, since PW-1 Dalel Singh has stated that the search was conducted in Lower Bazar, Shimla while the two police officials, namely PW-3 Kanshi Ram and PW-4 Rajesh Kumar have stated the place of recovery as Middle Bazar, Shimla. The learned trial Court has rightly held that the there was non-compliance of Section 100(6) Cr. P.C. since the copy of the recovery memo. was not supplied to the accused as required under this Section and keeping in view the facts of the case, it is clear that the prosecution case cannot be said to have been proved beyond any reasonable doubt. In view of the above discussion, the findings recorded by the learned trial Court that the prosecution had failed to prove their case beyond any reasonable doubt cannot be said to be 4 perverse calling for interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged. 23rd October, 2008 (V.K.Ahuja),J. (sds)