IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 31 of 2005. Judgement reserved on: 7.9.2011. Date of decision: 17.10.2011. Subhash Chand ….. Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. N.K.Thakur, Advocate. For the Respondent : Mr. J.S. Rana, Asstt. Advocate General. Kuldip Singh, Judge. This revision is directed against the judgement dated 2.2.2005 passed by learned Sessions Judge, Una in Criminal Appeal No. 11 of 2004 affirming the judgement of conviction dated 30.4.2004 passed by learned Additional Chief Judicial Magistrate, Amb in case No. 254-1/2002. 2. The facts in brief are that PW 8 Yash Pal ASI and others were on patrol duty near Shiv Mandir, Bharwain when they saw a person coming from Bharwain bazaar at about 5.30 p.m. The police apprehended the said person. On inquiry, he revealed his name Subhash Chand. He was carrying a bag in his left hand, which was searched and four bottles of XXX rum Black Jack were recovered from the bag. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 3. The accused could not produce licence/ permit for carrying four bottles, three bottles were unsealed, sampling and sealing was done by the police on the spot. The police took into possession the bottles vide recovery memo Ex. PW 3/A, which was signed by PW 7 Pawan Kumar and PW 3 Pardeep as well as the accused . The rukka Ex. PW 8/C was sent through Sukhwinder Singh and thereupon FIR Ex. PW 4/A came to be registered. The site plan Ex. PW 8/B was prepared. The report of the Chemical Examiner Ex. PA was received and samples were found containing alcohol. On completion of investigation, the challan was presented in the court. 4. The accused was charged for offence, punishable under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh, the petitioner pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and produced some documents. The statement of the petitioner was recorded, under Section 313 Cr.P.C., he denied the prosecution case. He led no evidence in defence. The learned Additional Chief Judicial Magistrate convicted the petitioner and sentenced him vide judgement dated 30.4.2004 to undergo simple imprisonment for three months and to pay a fine of Rs.5000/- and in default to undergo simple imprisonment for one month under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh. The learned Sessions Judge on 2.2.2005 upheld the conviction of the petitioner but modified the sentence by ordering his imprisonment for one month and to pay a fine of Rs.2000/- and in default of payment of fine, he shall further undergo imprisonment for a week, hence the revision petition. …3… 5. I have heard Mr. N.K.Thakur, learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General, for the respondent. On behalf of the petitioner, it has been submitted that the prosecution has not examined any independent witness. There is no link evidence of sending the seals to the Analyst nor record of the case property has been proved. He has submitted that two courts below have misinterpreted the evidence on record and have erred in convicting and sentencing the petitioner. The learned Assistant Advocate General has supported the impugned judgement and has submitted that scope of criminal revision is very narrow in which evidence cannot be re-appreciated. 6. PW 3 Pardeep Kumar has stated that four bottles of XXX Rum were recovered from the bag of the accused. The three nips were taken separately as samples from the recovered bottles. The recovery memo of the bottles Ex. PW 3/A is signed by him and bottles are Ex. P-2 to P-5. He has stated that Kangra Central Cooperative Bank and shop of Kewal were at a short distance, but nobody was called. There were many persons on the road. 7. PW 7 Pawan Kumar has stated that he was present at place Shiv Mandir, Bharwain alongwith other police officials, four bottles of black jack liquor Ex. P 2 to Ex. P 5 were recovered from the bag of Subhash Chand. One nip each was taken out from three bottles as sample. He has identified his signatures on memo Ex. PW 3/A. PW 8 Yash Pal ASI has stated that on checking the bag of the accused four bottles of XXX Rum black jack Ex. P 2 to Ex. P 5 were recovered from him. The accused could not produce any …4… permit. The sample was taken from three bottles. The bottles were taken into possession vide memo Ex. PW 3/A. In cross-examination, he has stated that opposite to the temple there are 3-4 shops and the road is a thoroughfare used by the public. 8. PW 1 Ranbir Singh has stated that case property consisted of four bottles of XXX Rum black jack out of them one was sealed and three were filled 2/3rd sealed with seal `JP’. Three bottles and three nips were handed over to him, which he deposited through Pardeep Kumar vide RC No. 5/21 in the Malkhana. He was not cross-examined. PW 2 Satpal has stated that on 25.4.2002 MHC Mehar Singh handed over three nips duly sealed, which he deposited at CTL Kandaghat on 26.4.2002 vide RC No. 69/2002 in proper condition. This witness has not been cross-examined. 9. PW 5 Mehar Singh has stated that case property, which was deposited by Pardeep Kumar in Malkhana, out of that, he sent three nips for chemical examination vide RC No. 69/02 dated 25.4.2002 through constable Satpal in proper condition, who after depositing returned the receipt to him. This witness was also not cross-examined. 10. In the statement, under section 313 Cr.P.C., the petitioner has stated that case is false. The prosecution witnesses who deposited the case property in the Malkhana and who carried the samples from the Malkhana to the laboratory have not been cross- examined. Therefore, it can be safely inferred that petitioner has not disputed safe deposit of case property in the Malkhana and thereafter safe deposit of samples at CTL Kandaghat. In these …5… circumstances, the absence of record from Malkhana and seal sent to Chemical Analyst has no bearing inasmuch as the petitioner has not disputed the safe deposit of case property in the Malkhana and at CTL Kandaghat. 11. The learned counsel for the petitioner has submitted that as per prosecution samples were taken only from three bottles even though as per prosecution four bottles of XXX Rum black jack were allegedly recovered from the petitioner. In absence of drawing of sample from the fourth bottle, it cannot be said that fourth bottle also contained XXX Rum. The learned counsel for the petitioner in support of this contention has relied Dharam Pal and another vs. State of Himachal Pradesh Latest HLJ 2009 (HP) 743. He has also submitted that investigating officer has not joined any independent witness at the time of alleged recovery even though independent witnesses were available, this creates suspicion in the prosecution story. He has relied State of H.P. vs. Vinod Kumar Latest HLJ 2002 (HP) 1195 in support of this contention. 12. In Vinod Kumar (supra), it has been held that there is no rule of law that statements of police officials must be disbelieved simply for the reason that they are police officials. In law, they are as good witnesses as any independent witness. It is, however, a rule of caution that the statements of the official witnesses must be read with due care and caution. Therefore, the contention of the learned counsel for the petitioner that case of the prosecution is liable to be thrown out on the ground that witnesses of recovery are only the police officials, has no force and therefore, contention is rejected. …6… 13. In Dharam Pal (supra), notification dated 29.3.1985 has been noticed, which provides two bottles each of the capacity of 750 ml. of foreign spirit and alternatively two bottles each of the capacity of 750 ml. of country liquor can be sold in each transaction. In that case, it has been held that notification dated 29.3.1985 does indicate that emphasis is on the quantity. There is substance in the submission of the learned counsel for the petitioner that there is no evidence that fourth bottle recovered from the petitioner was in fact having any alcoholic contents inasmuch as no sample was drawn from the fourth bottle, and, therefore, in absence of evidence, it cannot be said that fourth bottle was also of IMF, namely XXX Rum. However, the matter does not end here. There is positive evidence of recovery of three bottles of XXX Rum black jack from petitioner, which were having alcoholic strength 56.4% proof, 54.7% proof and 74.4% proof as per Ex. PA. The two courts below after due appreciation of material on record have recorded a finding of fact that petitioner has committed offence under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh. In revision evidence cannot be re-appreciated unless it is shown that perverse view has been taken from the evidence on record. It has not been established by the petitioner that view taken by the courts below is not possible or it does not emerge from the record. 14. It is thus held that prosecution has established that petitioner was found in possession of three bottles of XXX Rum, whereas the permissible limit is for two bottles of 750 ml. each. The petitioner was not having any permit to possess three bottles of XXX …7… Rum. Thus no fault can be found so far the conviction of the petitioner, under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh, is concerned. The incident is dated 31.3.2002, therefore, taking into consideration the time factor, I am of the opinion that sentence of the petitioner in the facts and circumstances of the case requires modification. Therefore, the petitioner is sentenced to pay a fine of Rs.5000/- and in default of payment of fine, he shall undergo simple imprisonment for one month for offence punishable under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh. 15. In view of above, the revision is partly allowed. The impugned judgement is modified. The petitioner is convicted and sentenced to pay a fine of Rs.5000/- under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh and in default of payment of fine, he shall undergo simple imprisonment for one month. The trial court is directed to recover the fine amount from the petitioner in accordance with law, if he has not already paid the said amount. October 17, 2011. ( Kuldip Singh ) (Hem) Judge.