HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 299 of 2005 Decided on: 16.12.2011 State of Himachal Pradesh ……… Appellant. Versus Mohan Lal, son of Shri Daulat Ram, Resident of Sadroti, Post Office Koti, Tehsil Rohru, District Shimla, H.P. ………Respondent. Criminal Appeal under Section 378 of the Code of Criminal Procedure against the judgment, dated 29.3.2005, passed by the learned Judicial Magistrate Ist Class(IV), Shimla, H.P., in Criminal Case No.21/3 of 2005/02, under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P. ____________________________________________________________ Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.Pawan Sharma, vice Mr.Arvind Sharma, Advocate. Justice V.K. Ahuja, J.(Oral): This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate Ist Class(IV), Shimla, H.P., dated 29.3.2005, 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 H.P. __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated, the facts of the case are that on 30.3.2002, PW-1 ASI Ashok Kumar alongwith other police officials had laid a Naka near Transit Camp 100 meters away from Chharabra. They were checking the vehicles. At about 9.45 p.m., a jeep came from Kufri side, which was stopped. On checking, bottles of country and english liquor were found, which consisted of 29 quarter of Black Jack, 16 quarter of Sellor, 117 Whisky, 14 quarter of Double Dog Whisky and 5 boxes in which 12 pouches of Himfed No.1 (750 ml each) were found. The driver disclosed his name as Mohan Lal, respondent. However, he was not able to produce any permit for the liquor being carried in the vehicle and, therefore, the case was registered. Samples were taken out of the recovered bottles and on receipt of the report of the Chemical Examiner and on completion of investigation, the challan was filed before the learned trial Court, who tried the respondents, as detailed above, leading to his acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. A perusal of the judgment passed by the learned trial Court shows that the first point taken by it in acquitting the respondent is in regard to non-joining of independent witnesses. The provisions of Section 100(4) Cr.P.C. were considered by the learned trial Court and it was observed that there was no compliance of these provisions. 5. In regard to compliance of provisions of Section 100(4) Cr.P.C., a reference can be made to the decision of the Apex Court in in Jarnail Singh versus State of Punjab, (2011) 3 Supreme Court Cases 521, wherein the - 3 - observations made in paras 11 and 12 are relevant and are being reproduced below: “The first submission of Mr.Ujjal Singh, learned counsel, is that the appellant has been falsely implicated. We are unable to accept this submission. Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated. It was clearly a case where the police personnel had noticed the odd behaviour of the appellant when he was walking towards them on a path which led to Village Mirzapur. It was the display of hesitation by the appellant on sighting the police party that Satpal Singh (PW 5) became suspicious. On seeing the police personnel, the appellant tried to run away from the scene. It was not a case where the prosecution has claimed that the appellant was apprehended on the basis of any earlier information having been given by any secret informer. It was also not a case of trap. In such circumstances, it would not be possible to hold that the appellant has been falsely implicated. 12. The prosecution has offered a plausible explanation with regard to non-joining of the independent witnesses. It was clearly stated by PW 5 that the path on which the appellant was apprehended was not frequently used by the public. In fact, efforts were made to bring a member of panchayat or Sarpanch of the village. However, the Head Constable Baldev Singh who had been sent, reported that none of the villagers were prepared to join as independent witnesses. This reluctance on the part of the villagers is neither strange nor unbelievable. Generally, people belonging to the same village would not unnecessarily want to create bad relations/enmity with any other villager. Especially when such a person would be feeling insecure, having been accused of committing a crime.” - 4 - 6. It is clear from a perusal of the record of the present case that neither the Investigating Officer took any steps nor gave any explanation for non-compliance of the mandatory provisions of Section 100(4) Cr.P.C. It is in evidence that nearby there was an Institute of Hotel Management and also an Army Transit Camp, and many vehicles were stopped, which were crossing at that time, but no attempt was made by the Investigating Officer to join independent witnesses. In case he was unable to do so, he could have given an explanation, which was not given and in case it was given, the Court could have considered as to whether the same was plausible or not in view of the facts of the case. However, no explanation was given and as such there was non-compliance of the mandatory provisions of Section 100(4) Cr.P.C. and the benefit of the same must go to the accused. 7. Apart from the above, on the basis of the evidence, the learned trial Court had also observed that the case property was put in six jute bags but only four were produced in the Court and there was no explanation for the remaining two bags. It was further observed that only one bag was found sealed and the other three bags were tagged with rope, though the Investigating Officer stated that all the four bags were sealed. Therefore, the learned trial Court observed that the possibility that the case property was tampered with also cannot be ruled out. There was also no investigation by the police in regard to the plea taken by the accused that the liquor was belonging to M/s Joshi and Company and for that one permit Mark D was also produced in - 5 - defence. The Investigating Officer could have verified this fact from the said Company, particularly, when the case property had been got released by the said Company during the investigation of the case. Therefore also, the prosecution had failed to prove its case. 8. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondent shall stand discharged. December 16, 2011 (V.K. Ahuja), (tilak) Judge.