IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.676 of 2001 Judgment reserved on: 16th October, 2008 Decided on: October 17, 2008 State of HP …Appellant Versus Raj Kumar and another …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Dy. A.G. For the Respondents : Mr. M.L. Brakta, Advocate Surjit Singh, Judge State has appealed against the judgment of trial Magistrate, whereby respondents Raj Kumar and Rajesh Kumar, who were charged with and tried for an offence, under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, have been acquitted. 2. Challan was filed against the respondents by Shimla Sadar Police, alleging that on 24th September, 1995, around 12.30 (night), when the police party comprising of PW-6 HC Kamal Dev, PW-3 HC Rajender Singh and PW-1 HC Mahesh, was present near Oak Wood, Jakhoo, two persons came from Ridge side and on seeing the police they turned back and ran away, leaving a bag containing 24 pouches of country liquor marked Patiala Desi, and a jacket, in the pockets of which there Whether reporters of the local papers may be allowed to see the judgment? …2… were 12 more pouches of country liquor of the same brand. One of them was respondent Raj Kumar, who was known to the above named three police officials from before. The other one was not known to them. Three pouches were separated from the bag and three from the pockets of the jacket, by way of samples. The samples and the remaining pouches of liquor were deposited with MHC PW-2 ASI Bhoop Ram. Pouches separated by way of samples were sent to Chemical Examiner, who reported that their contents were of country liquor. Respondents were arrested on the next following day, i.e. 25th September, 1995. 3. Learned trial Magistrate has disbelieved the prosecution story and held that neither the identity of the respondents stands established nor has the case property, produced in the Court, been connected with the respondents, who allegedly fled from the spot. 4. I have heard the learned counsel for the parties and gone through the record. 5. Trial Magistrate’s finding that the identity of the respondents does not stand established is not correct, so far as respondent Raj Kumar is concerned, because all the three witnesses, who were members of patrolling party, namely PW-6 HC Kamal Dev, PW-3 HC Rajender Singh and PW-1 HC Mahesh, categorically stated that one of the two persons, who fled from the spot, was respondent Raj Kumar, who was known to them from before. Their testimony to this effect was not subjected to cross-examination. However, as regards the other …3… respondent, there is absolutely no evidence, indicating that he was the other man, who fled from the spot in the company of Raj Kumar. 6. Evidence on record shows that the case property, which the respondents allegedly abandoned on the spot before fleeing, had not been sealed. Similarly, six pouches taken out by way of samples, three from the bag and three from the jacket, had also not been sealed nor had any specific mark been put on them, indicating that they were the part of the contents of the bag and the pockets of the jacket. 7. PW-2 ASI Bhoop Ram stated that there were chits pasted on the samples, but the constable, who carried the samples to Chemical Examiner’s laboratory, namely PW-5 Lekh Ram, did not say that any chits were pasted on the samples. The Investigating Officer, namely PW-6 HC Kamal Dev also did not say that he had pasted any chits on the pouches, separated by way of sample. Report of the Chemical Examiner Ext.P-2 or the docket on the back of which the report is written, also do not bear any mention that the sample pouches had any chits pasted thereon. It is also not mentioned in the report Ext.P-2 or its docket part that the sample pouches were of Patiala Desi brand, that is to say, the brand of the recovered pouches. 8. In view of the above stated position, I do not think this to be a fit case for interfering with the judgment of acquittal recorded by the trial Court. Hence, the appeal is dismissed. October 17, 2008(ss) ( Surjit Singh ), J.