IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.97 of 2003 Date of decision : November 4, 2009 State of H.P. …Appellant. Versus Sunil Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Bimal Gupta, Advocate. Surjit Singh, Judge (Oral) State has appealed against the judgment, dated 1st November, 2002, of learned Additional Chief Judicial Magistrate, Court No.1, Shimla, whereby respondent, who was charged with and tried for offence, under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh, has been acquitted. 2. Case of the prosecution, as per evidence on record, may be summed up thus. On 7th August, 1998, PW-8 SI Raj Kumar was present at Jatog Bus Stand, around 1.30 a.m. (night), alongwith PW-5 Constable Lekh Raj, when Truck No.HP-07-3249 came from Totu side. It was inspected. There were four gunny bags in the Truck, in which there were pouches of country liquor. Three gunny bags contained 300 pouches, each and the fourth one contained 145 pouches. Four samples, from the pouches recovered from each of the four gunny bags, were taken. Those samples were sent to the Chemical Whether reporters of the local papers may be allowed to see the judgment? …2… Examiner, who, vide report Ex. PZ, opined that the samples were of country liquor. At the time of search, PW-8 SI Raj Kumar associated one independent witness, namely Dharminder Pal (PW-7). 3. During the course of trial, PW-7 Dharminder Pal did not support the prosecution story. However, PW-8 SI Raj Kumar and PW-5 Constable Lekh Raj, both testified that the Truck of the respondent was intercepted at Jatog Bus Stand and four gunny bags, containing pouches of country liquor, as aforesaid, were recovered. 4. Learned trial Court, without appreciating the evidence of PW-8 SI Raj Kumar and PW-5 Constable Lekh Raj and without assigning any reason for disbelieving their testimony, has acquitted the respondent on flimsy grounds that Constable Gopal Singh (PW-2), who allegedly carried the samples to the Chemical Laboratory, did not testify that he had delivered the samples at the Laboratory and PW-8 SI Raj Kumar did not testify that he had deposited the case property and the samples with MHC Dharam Dass (PW-6). 5. I have gone through the statement of PW-2 Constable Gopal Singh. The witness though did not say in the examination-in-chief that he carried the samples, which were handed over to him by PW-6 MHC Dharam Dass, to the Chemical Laboratory, but in the cross-examination he did state this fact. No doubt, PW-8 SI Raj Kumar did not say that he deposited the case property with the MHC, but PW-6 MHC Dharam Dass very categorically stated that the case property alongwith the …3… samples had been deposited with him by PW-8 SI Raj Kumar, on return to the Police Station and this part of his statement was not challenged in the cross-examination and, therefore, omission on the part of PW-8 SI Raj Kumar to testify about this fact was of little consequence, particularly when the case property was produced in the Court and exhibited. 6. What I gather from the judgment of the trial Magistrate is that he wanted to help the respondent, for the reasons best known to him and so he found excuses to acquit him. The matter is of very serious nature and needs to be probed. Registrar (Vigilance) of this Court is directed to bring the matter to the notice of the Hon’ble Chief Justice, for initiating departmental action against the Judicial Officer concerned. 7. Since the learned Additional Chief Judicial Magistrate has passed the order of acquittal, without assigning any reason for disbelieving the testimony of PW-8 SI Raj Kumar and PW-5 Constable Lekh Raj, who claim to have intercepted the Truck and recovered the liquor, case is remanded to the trial Magistrate, with the direction to dispose of the same afresh, on the basis of the evidence already adduced by the parties, but after hearing both the parties again. Appeal stands disposed of accordingly. November 4, 2009(sd) ( Surjit Singh ), J.