IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.361 of 2008 Decided on: April 11, 2008. State of Himachal Pradesh …Petitioner. VERSUS Anil Kumar ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner : Mr A.K.Bansal, Addl.A.G. For the respondent : Kuldip Singh, Judge (Oral) The respondent was prosecuted under Section 61(1)(a) of the Punjab Excise Act, as applicable in the State of Himachal Pradesh on the basis of F.I.R. No.311/03 registered at Police Station, Una for having 12 pouches of country liquor, namely, Una No.1, each pouch measuring 750 ml. The respondent was acquitted by learned Additional Chief Judicial Magistrate, Court No.1, Una on 31.10.2006, in case No.99-III-03. Hence, the State has filed this application for leave to file appeal. 2. The prosecution case, in brief, is that on 23.5.2003 at about 11 p.m. ASI Ashok Kumar along with HC Rajesh, HHC Harmesh, HHC Ranjit, HHC Ashok Kumar and HHG Mohinder Singh proceeded for nakabandi towards Takatpur at about 11.30 p.m. the Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… police party at place Takatpur apprehended accused coming from Santoshgarh side carrying one sack on his right shoulder. The respondent on seeing the police party tried to run back, on suspicion he was apprehended and searched and during search 12 pouches of country liquor Una No.1 each pouch measuring 750 ml were found in the sack which was being carried by respondent. The respondent could not show any permit for carrying the liquor. Three pouches were taken as sample for chemical examination, remaining 9 pouches were sealed in the sack with seal impression A and seal was handed over to HHC Harmesh Kumar. The site plan was prepared. The statements of witnesses were recorded and on completion of investigation, challan was presented in the Court. The respondent was charged under Section 61(1) (a) of Punjab Excise Act, as applicable in the State of Himachal Pradesh to which he pleaded not guilty and claimed trial. The prosecution examined six witnesses, statement of respondent was recorded under Section 313 Cr.P.C. and he pleaded his innocence but did not lead any evidence in defence. On conclusion of trial, the learned Additional Chief Judicial Magistrate acquitted the respondent. 3. The learned Additional Chief Judicial Magistrate has noticed in the judgment that place of Naka was Takatpur and in site plan Ext.PW-6/B at point A was the police party on Naka. PW-1 has stated that Takatpur is about 1 ½ to 2 kilometers from Santoshgarh. As per statement of PW-1 it emerges that Naka was at place Chhatarpur Tada. PW-4 has stated that Naka was Tada road. Chhatarpur Tada is at a distance of about 4 kilometers from …3… Santoshgarh as per PW-6. PW-1 has stated that they went on the spot on foot whereas PW-4 has stated that they went on the spot on scooter. PW-1 and PW-4 have stated that seal was handed over to them but PW-1 could not produce the seal and PW-4 has stated that the seal has been lost. The prosecution case is that seal was handed over to PW-4 and not to PW-1 but both PW-1 and PW-4 are claiming that seal was handed over to them. PW-1 has stated that no sample was taken on the spot. The learned Additional Chief Judicial Magistrate has noticed that there is no evidence that the specimen seal impression was sent to CTL for comparison. Therefore, sample tested by the CTL has not been connected with the liquor recovered. PW-4 has stated that no witness from the locality was associated. It has come in evidence that there is abadi in Santoshgarh which is adjacent to place of occurrence; the police had made no efforts for associating the independent witness of the locality. The learned Additional Chief Judicial Magistrate has noticed many contradictions in the judgment dated 31.10.2006. PW-1 has stated that there was no light on the spot and the liquor was allegedly recovered at about 11.30 p.m. The learned Additional Chief Judicial Magistrate has taken a possible view. No case has been made out for grant of leave to file appeal against the impugned judgment. Hence, leave to appeal refused and the petition is dismissed. April 11, 2008 ( Kuldip Singh ), J. (soni)