IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Rev. No. 5 of 2003 Date of judgment: November 7, 2009, Prem Dass …Petitioner Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Raman Sethi, Advocate, For the Respondent : Mr.Ramesh Thakur, Assistant Advocate General. Surjit Singh, J. (Oral) This revision petition is directed against the judgments of the trial Magistrate as also the Sessions Court (first Appellate Court), whereby the revision petitioner has been held guilty of offence under Section 61(1) (a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh, for allegedly possessing 88 bottles of Country liquor and Indian Made Foreign liquor (IMFL) and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2000/-; in default of payment of fine to undergo simple imprisonment for a further period of one month. Whether reporters of the local papers may be allowed to see the judgment? - 2 - Case of the prosecution, which has led to the conviction and punishment of the revision petitioner, may be stated. On 13.4.1995, PW8 HC Ramesh Kumar along with ASI Uttam Chand and several other police officials, was present at a place, called Nalti Bridge, when he received an information that the revision petitioner had kept at his house in village Jassu Samula, a huge quantity of country liquor and Indian made foreign liquor, which he sold illegally to the people of the area, upon which said HC Ramesh Kumar formed a raiding party. He associated with him, Piar Chand (PW3), Pankaj Kumar (PW4) and one Subhash Chand and raided the premises of the revision petitioner. During the search of the house, from an almirah 60 bottles of country liquor contained in cartons, 24 bottles of XXX Rum and 4 bottles of Bag Piper whisky, were recovered. One sample was taken from country made liquor, one from XXX Rum and one from Bag Piper Whisky, in three separate nips. Samples and the bottles of liquor, from which the samples were taken, were sealed with seal that produced the impression of letter “H” of English alphabet. Samples were sent to the Chemical Examiner, who opined their contents to be of Country liquor and Indian Made Foreign Liquor. - 3 - Revision petitioner was challaned. At the end of the trial, learned Magistrate convicted and sentenced the revision petitioner, as aforesaid. Appeal filed by the revision petitioner in the first appellate court, has been dismissed. I have heard the learned counsel for the revision petitioner as also the learned Assistant Advocate General and gone through the record. Prosecution examined three witnesses to prove the allegation that on search of the premises of the revision petitioner, in village Jassu Samula, 88 bottles of liquor were recovered. They are PW3 Pankaj, PW4 Piar Chand and PW8 HC Ramesh Kumar. PW4 Piar Chand and PW3 Pankaj, did not support the prosecution story. They stated that they were going on a scooter when the police officials asked them to put their signatures on the seizure memo Ex.PW3/A. They were declared hostile and cross-examined by the prosecution with the leave of the Court. PW8 HC Ramesh Kumar stated that he searched the premises of the revision petitioner in the presence of Piar Chand and Pankaj and on search 88 bottles of liquor were recovered. There were some other police officials, including ASI Uttam Chand, accompanying PW8 HC Ramesh Kumar at the time of the alleged search. None of them was - 4 - examined. One Subhash Chand was also accompanying PW8 Ramesh Kumar. He too was not examined. ASI Uttam Chand was a Police Officer, senior/superior to Head Constable Ramesh Kumar. PW8 Ramesh Kumar did not state that ASI Uttam Chand accompanied him to the house of the revision petitioner or that he witnessed the search. However, in the application, which he made to the Magistrate soon-after the arrest of the revision petitioner, for remanding the revision petitioner in judicial custody, he categorically stated that ASI Uttam Chand was also present at the time of the search. No explanation was put forward by the prosecution as to why ASI Uttam Chand, who was undoubtedly an officer superior to PW8 HC Ramesh Kumar, had not been produced as a witness or was not even cited as a witness of the prosecution in the challan. This by itself is suggestive of some hanky panky on the part of the police. Further, according to PW1 MHC Satish Kumar, Police Post, Bhawarna, the case property along with samples was deposited with him by PW7 SI Krishan Kumar. However, Krishan Kumar in his own testimony as PW7 did not say that he had been handed over the case property or the samples by PW8 HC Ramesh Kumar or by any other police official and that he deposited the same with PW1 MHC Satish Kumar. - 5 - Cartons containing the country liquor and the Indian Made Foreign liquor were not produced in the Court. Only the bottles were produced and PW8 HC Ramesh Kumar admitted in his cross-examination that many of the bottles were empty and their seals even not intact. When asked to explain as to how the bottles got emptied, he gave a funny reply that with the passage of time the bottles had leaked. In view of the above stated lacunae in the prosecution case, which have not been taken note of either by the trial Court or by the first appellate court, I am of the considered view that the case of the prosecution cannot be said to have been proved, beyond reasonable doubt. Hence, the revision petition is allowed, judgments of the trial Court and the first appellate are set aside and the revision petitioner is acquitted. Revision Petition stands disposed of. November 7, 2009 ( Surjit Singh), J. s