1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 477 of 2001. Date of Decision: 21-7-2008. ____________________________________________________________ State of H P. Appellant. Versus Sham Sunder. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh. J.S. Guleria, Law Officer. For the respondent: : Shri Parveen Kumar Advocate vice Shri Ajay Sharma, Advocate. ____________________________________________________________ Surinder Singh, J . (oral) Heard and gone through the record. The State has assailed the judgment acquittal passed by learned trial Court in Cri. Case No.175-III/2K decided on 31- 5-2001 under Section 61 (1) (a) of the Punjab Excise Act as applicable to Himachal Pradesh in FIR No. 238 of 1999 dated 1.10.1999 registered with Police Station, Dharamshala, District Kangra. In brief, the facts of the case as alleged are that on 1.10.1999, PW6 S.I. Karam Chand was on a patrolling duty along with other police officials near Sukkad Chowk. Around 8.00 a.m, a Scooter No. CHP-7928 came from the opposite side and on seeing the Police Party along with their vehicle, he immediately turned towards Sukkad road. He was having three carton boxes on his scooter. The Police became suspicious. The scooterist was followed by the Police in their own police vehicle and after covering about half k.m, they found the scooter along with the cartons abandoned on the side of the road, the scooterist had already run away. On checking the cartons, Police found 50 Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 pouches of liquor 200 ml. in one of the cartons and rest of the two cartons contained 12-8 pouches of liquor of 750 ml. in each. Sample was picked up from each of the cartons and sealed with seal impression ‘K’. Its impression was also taken on a piece of cloth Exhibit PW6/A. The case property was sealed and taken into possession vide memo Exhibit PW4/A. Jatinder and Gopal Sood constables were cited as witnesses. Ruka Exhibit PW6/B was sent for registration of the case on the basis of which F.I.R. Exhibit PW5/A was formally registered. The site plan Exhibit PW6/C was prepared. Statements of the witnesses were recorded. Thereafter on 5-10-1999, the respondent being the owner of the Scooter was called in the Police Station. He produced the registration certificate and the affidavit of the Scooter which were taken into possession vide memo Exhibit PW5/D and on the same day, he was arrested and later enlarged on bail by the Court. After receipt of the report of analysis, the case was presented in the Court for trial. Respondent was charge-sheeted for the offence under Section 61 (1) (a) of the Punjab Excise Act as applicable to Himachal Pradesh. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses. The respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. No defense was led. After appreciating the evidence on record and hearing the parties, the respondent was acquitted by the learned trial Court on two points (i) non- compliance of Section 100 (4) of the Code of Criminal Procedure and (ii) on the point of identification, which have been assailed in this petition. Shri J.S. Guleria, learned Law Officer for the State has elaborated the above two points in his arguments and urged that there are grounds for convicting the acquittal into conviction. Contra, learned counsel for the respondent supported the impugned judgment. 3 At the very outset, I would like to say that from the facts and circumstances of the case, when the alleged recovery is chance recovery and was made from an open place, the provisions of Section 100 (4) of the Code of Criminal Procedure are not attracted. Therefore, the learned trial Court has wrongly held that there was a non-compliance of the aforesaid provisions. As far as identification of the respondent is concerned, for that statement of PW6 S.I. Karam Chand is relevant in this context. He stated that on seeing the Police, the Scooterist immediately turned towards Sukkad road but he could not recognize the scooterist nor he had seen the respondent earlier. He has also stated neither he knew who was the owner of the scooter in question nor he got the respondent identified from any one. Even PW4 Gopal Sood constable has stated in his cross-examination that he did not know as to who was driving the scooter. There is no other connecting evidence in the case to link the respondent with the offence charged. Therefore in these circumstances it cannot be said that it was the respondent who was carrying the liquor on his scooter as alleged. Accordingly, I do not find any perversity on this score in the judgment of learned trial Court. Therefore, the acquittal of the respondent on the ground of his non- identification is up-held. The appeal is dismissed and the respondent is discharged of the bail bonds entered upon by him at any stage of the trial. (Surinder Singh) Judge. July 21, 2008. (bm)