IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 67 / 2004 Date of decision: 23. 9. 2010 State of H.P. ….Appellant Versus Joginder Singh and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. A.K. Bansal, Additional Advocate General. For the respondents : Mr. Ramesh Sharma, Advocate. Surinder Singh J. (Oral) Respondents were tried and acquitted of the offence punishable under Section 61 (1) (a) of the Punjab Excise Act, 1914, as applicable to the State of H.P., allegedly for keeping in possession the illicit liquor. State felt aggrieved by the impugned judgment of acquittal, hence the instant appeal has been filed by the State. 2. In short, prosecution story can be stated thus. On 24.8.2001 at about 10 p.m., PW4 S.I. S.H.O. Bakshi Ram accompanied by constable Besari lal 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - were on patrolling duty in the area of ‘Jangal Beri’ and ‘Kheri’ villages. They reached near ‘Bakar- Khad’ Bridge and were waiting to take a lift in a vehicle. A Taxi bearing registration No. HP-01-8753 came from ‘Sandhol’ side. It was stopped. PW1 Sunil Kumar was on its driving-wheel and PW3 Surjeet Singh was sitting besides him. In the meantime, a white coloured Pick-Up Van, back covered with tarpaulin came there. It was signaled to stop by the police but it did not stop. Police chased the said vehicle in the taxi aforesaid. Pick- up Van was bearing registration No. HP-22-8145. They could stop it after covering with in a distance of 2 k.m. Respondent No. 2 Rajinder Kumar was its driver. Respondent No. 1 Joginder Singh and respondent No. 4 Ajay Kumar were sitting front besides the driver in the cabin. Respondent No. 3 Piar Chand was in the back seat. Police checked the Pick-Up vehicle and found 18 boxes of ‘English Wine’ containing 12 bottles each of IMFL Black Jeck XXX Rum. The total quantity was 216 bottles of 7.50 ml. each, in addition three boxes containing 12 pouches each of country liquor Una No. 1 brand in total 36 pouches were recovered. - 3 - 3. Respondents could not produce any permit or license for the possession and transportation of the aforesaid consignment as such PW4 SHO Bakshi Ram took three samples from each of the three bottles of 7.50 ml. of ‘English Wine’ which were separately sealed with seal impression ‘H’ of English letter. He also took three samples from three pouches of country liquor each containing 7.50 ml., in three separate nips which were also sealed with the same seal. Remaining liquor in the three bottles was sealed in the same bottles with same seal. Specimen of the seal used for sampling was taken in a separate piece of cloth Ext. PA. Seal after its use was stated to have handed over to PW3 Surjeet Singh. Case property was taken into possession vide memo Ext. PW1/A. Ruka Ext. PW4/A was sent for registration of the case on the basis of which FIR Ext. PB was registered. 4. PW4 Bakshi Ram SHO prepared the site plan Ext. PW4/B of the place of the alleged recovery, recorded statements of the witnesses. Case property Ext. P1 to Ext. P276 were deposited in the Malkhana with PW2 MHC Prem Chand on the same day. Sample nips six in number were sent to CTL Kandaghat for chemical examination through - 4 - constable PW6 Suman Kumar vide RC No. 42 of 2001 on 29th August, 2001, which were deposited by him in the Laboratory. After obtaining the receipt on the Road certificate, it was handed over back to the MHC on his return, in the police Station. 5. Chemical examiner testified that the samples taken from three bottles contained IMFL. On the examination of other three samples, he confirmed the fact of containing country liquor of licit origin. Report is Ext. PW4/G. 6. After completing the investigation, challan was presented in the court for the trial of the respondents. The defence taken by the respondents was denial simplicitor. 7. No evidence in defence was led. At the end of the trial respondent were acquitted on the ground that the independent witnesses have not supported the case of the prosecution and the statements of the official witnesses did not inspire confidence regarding its recovery. 8. I have heard learned Additional Advocate General for the State as also the learned counsel for the respondents and have carefully gone through the evidence on record. - 5 - 9. At the very outset, I would like to say that the prosecution could prove only the possession of bottles of IMFL and 3 pouches of country liquor from the respondents who are four in number. The link evidence from the time of recovery till the examination of the samples in the Laboratory is complete. Neither MHC nor constable, who had taken the samples for analysis, were cross- examined and they testified on oath that so long as the case property remained in their possession, it was not tampered with. Further, there is also a report of the Chemical Examiner on the report Ext. PW4/G that the seal affixed with the samples tallied with the seal separately sent through Constable Suresh Kumar, whereas, permissible limit with each of the persons is two bottles, either of the IMFL or the country liquor. Before the respondents could be convicted for the offence charged, it was incumbent upon the prosecution to prove that they were in actual and conscious possession of the liquor in excess of the prescribed limit. In absence thereof, the conviction against the respondents can not be passed. 10. Thus, the prosecution has not been able to prove the case against the respondents beyond a - 6 - reasonable doubt for possessing the liquor, as alleged beyond the permissible limit. As such the acquittal of respondents cannot be interfered with. The appeal merit dismissal and is accordingly dismissed. Respondents are discharged by the bail bonds entered upon by them at any stage during the proceedings of this case. September 23, 2010 (Surinder Singh), (cm) Judge.