Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.570 of 2010. Decided on: September 29, 2011. State of H.P. …… Appellant. Versus Laxmi Nand. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant : Mr. P.M. Negi, Dy. Advocate General. For the Respondent : Ms. Seema Guleria, Advocate, Surinder Singh, J (oral) : The challenge in this appeal by the State is to the acquittal of the respondent, hereinafter referred to as ‘the accused’, passed by the learned trial Court in Cr. Case No.40/3 of 2009 on 6.5.2010, for the offence punishable under Section 61 (1)(a) of Punjab Excise Act, as applicable to the Himachal Pradesh, arising out of FIR No.20/2009 dated 23.2.2009, registered in Police Station Darlaghat (Solan). 2. Heard and gone through the records of the case. - 2 - 3. In brief, the prosecution story can be stated thus. On 23.2.2009, Police Party headed by PW5 HC Brij Lal was on patrolling and excise raid in the area of Kararaghat. When they were present near the place known as ‘Sanghoi’, around 3.10 a.m., they noticed a Maruti Car bearing registration No.CH-03X-8013 coming in a high speed from the side of village Mangoo. It was being driven by the accused. On seeing the police, the accused tried to run away, but he was apprehended at a distance of 10-12 feet. His identity was asked and the documents of the vehicles were got checked. In that process, police found three sacks lying in the said vehicle containing 12 bottles of country liquor Himachal No.1 of 750 Ml. each in each of the 10 cartons, in total alleged to have been found in transporting 120 bottles of country liquor of above brand. He failed to produce the licence or any valid permission. Police from each of the cartons took one bottle, thus all the 10 bottles were sealed with seal impression ‘A’ and the case property alongwith Maruti Car was taken into possession vide seizure memo and a Ruqa Ext.PW5/A was sent for the registration of the case, which culminated into the FIR Ext.PW5/B. - 3 - 4. Police prepared site plan Ext.PW5/D of the place of alleged recovery. Case property was deposited in the Malkhana with PW4 MHC Ram Pal and the sample bottles were sent to the CTL Kandgaht for its analysis. On its examination, it was opined that the said sample was of licit liquor. Reports of the Public Analyst are Ext.PW5/G and H. 5. After recording the statements of the witnesses and completing the challan, it was presented in the court for the trial of the accused. Accordingly, he was tried and acquitted by the learned trial Court on the ground of contradiction and non-association of the independent witnesses. 6. As a matter of fact, when it was the wee hours of morning and it was a secluded place, there was no question of association of the independent witnesses nor it is the requirement of law. 7. Insofar as the contradictions are concerned, there are no much contradictions which goes to the root of the case, but however, I find that the link in the evidence is missing with respect to the deposit of the case property in the Malkhana as per the statements of the material witnesses, thus it cannot be said that the - 4 - samples so deposited in the Laboratory pertained to this case and were not tampered with. 8. PW5 HC Brij Lal stated that after the recovery and preparing the seizure memo, Ruqa Ext.PW5/A was sent for the registration of the case through PW1 HHC Hukam Chand to Police Station Darlaghat, on the basis of which FIR Ex.PW5/B was formally registered, whereas, PW1 aforesaid only states that he was handed over a Ruqa Ext.PW5/A for the registration of the case. He does not make any reference of taking the case property to the Police Station. There is only a mention in the Ruqa to this effect. The first page of the FIR Ext.PW5/B shows that the place of alleged recovery is about 17 Kilometers from the Police Station and PW1 HHC Hukam Chand in his cross-examination stated that he went on foot to the Police Station from the place of alleged recovery. 9. PW4 MHC Ram Pal stated that the aforesaid case property was deposited by PW1 HHC Hukam Chand, which appears to be incorrect in view of the fact that the Ruqa Ext.PW5/A was sent through PW1 at 4.10 a.m. from the alleged place of recovery, which is - 5 - stated to be 17 Kilometers away from the Police Station, whereas the FIR Ext.PW5/B was recorded at 5.15 a.m. i.e. after one hours five minutes. It was not possible to cover this much distance on foot within one hour even without carrying the case property. Neither he nor the Investigating Officer stated anywhere that the car in question alongwith the case property was sent through PW1 aforesaid and even otherwise, the accused remained in the custody of the police. He was shown to have been arrested on the spot. No one accompanied PW1 HHC Hukum Chand to the Police Station, therefore, the very narration that the case property was deposited by PW1 aforesaid is incorrect. 10. Further I also find that as per the case of the prosecution, the case property was sealed on the spot with seal impression ‘A’ and seal after its use was handed over to PW2 HC Inder Singh. PW1 HHC Hukam Chand had proceeded from the spot at 4.10 a.m. without the case property. Case property alongwith samples bottles of recovered liquor remained with the police on the spot and PW2 HC Inder Singh was also with them. The possibility of tampering of the sample bottles cannot be ruled out, for the reasons seal - 6 - remained with PW2 HC Inder Singh and the case property was also in the custody of the police on the spot. These facts assume importance as PW2 HC Inder Singh did not produce the seal during the trial of the case. In cross-examination, he stated that he lost the seal, which was used on the spot and he did not make any report to that effect at any point of time. 11. Further, it is also evident from the statement of PW4 MHC Ram Pal that the case property was deposited in the Malkhana, but no sample of seal was handed over to him for its deposit in the Malkhana and there is no mention in the abstract of the Malkhana register Ext.PW4/A. Further when the sample parcels were sent through PW3 C. Rajender Kumar also does not make any mention that he had also been entrusted sample of seal alongwith sample bottles for its deposit in the Laboratory. 12. For the aforesaid reasons, in my opinion, the case of the prosecution stands not proved beyond reasonable doubt, as such, the acquittal of the accused cannot be interfered with. Accordingly, the appeal sans merits and is thus dismissed. - 7 - 13. The respondent-accused is discharged of his bail bonds entered upon by him at any stage during the proceedings of the case. 14. Send down the records. September 29, 2011. (Surinder Singh) (Pds) Judge.