IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 74 of 2002. Reserved on : 10.03.2009. Date of Decision: 13.03.2009. State of Himachal Pradesh …Appellant. Versus Rajinder Kumar @ Raju ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the respondent : Mr. R. P. Singh, Advocate. __________________________________________________________ Kuldip Singh, Judge The State by way of this appeal has assailed the judgment dated 13.8.2001 of learned Chief Judicial Magistrate, Shimla in Criminal Case No. 17/3 of 1999 acquitting respondent under Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of H.P. 2. The prosecution case, in brief, is that on 25.9. 1998 PW-3 Harjeet Singh was on patrol / raid duty along with PW-2 Tara Chand and PW-1 Balvinder Singh. They received a secret information at about 11.45 a.m. near Ghora hospital that respondent deals in unlawful business of country liquor in his house. On taking this ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 information genuine, a raiding party was constituted by associating PW- 5 Deepak and a raid was conducted in the house of respondent in his presence. On search, a sac was recovered which was kept in the northern corner containing 140 pouches each 180 mls. of country liquor (Hero No.1). One pouch was separated for chemical examination and put into a parcel which was sealed with seal ‘H’. The remaining pouches were taken into possession, a rukka Ex.PW-3/A was sent to the Police Station for registration of the case and there upon F.I.R. Ex.PW-3/D was registered. The site plan was prepared, statements of witnesses were recorded. The sealed sample was sent for chemical examination and report Ex.PW-3/E was obtained. On completion of investigation, challan was presented. The respondent was charged for commission of offence punishable under Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of H.P. The respondent pleaded not guilty and claimed trial. The prosecution has examined five witnesses and produced some documents. The statement of respondent was recorded under Section 313 Cr.P.C., he denied the prosecution case. On conclusion of the trial, the learned Chief Judicial Magistrate, acquitted the respondent, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. R. P. Singh, Advocate for the respondent and have gone through the record. On behalf of the State, it has been submitted that the learned Chief Judicial Magistrate has not properly appreciated the evidence on record. The prosecution has proved the case beyond reasonable doubt no matter, PW-5 Deepak turned hostile. The learned counsel for the respondent has supported the impugned judgment and has submitted that the learned Chief Judicial 3 Magistrate after due appreciation of evidence, has rightly acquitted the respondent. 4. PW-1 Balvinder Singh is a witness of sending one pouch to C.T.L. Kandaghat for analysis. PW-2 Tara Chand in the year, 1999 was posted as Constable at police station and has stated that 140 pouches of country liquor were recovered from the house of respondent in presence of Deepak Kumar. The respondent could not produce any permit. One pouch was separated for chemical examination and was sealed with seal ‘H’ and the seal was handed over to Deepak. The remaining pouches were taken into possession vide memo Ex. PW-2/A which bears his signatures. In cross-examination, he has stated that Ghora hospital is a busy place. Deepak was called from Krishna Nagar. The distance between Ghora hospital and Krishna Nagar is about 300 yards. He could’t tell who was sent to call Deepak. They reached Krishna Nagar in 5 – 7 minutes. Krishna Nagar is thickly populated. The wife, children and mother of the respondent were present in the house and about an hour was spent on the spot. 5. PW-3 Harjeet Singh has stated that he along with Tara Chand, Balvinder Singh and Deepak raided the house of the respondent and found 140 pouches of country liquor Hero No.1. In cross-examination, he has stated that raiding party was constituted near Ghora hospital. He has stated that the Cart Road is a busy place. There are shops nearby but no person was associated in the raid from the shops. There are houses near the house of the respondent. In the house accused was alone and none else was there. 6. PW-4 HC Duni Chand is a formal witness with respect to handing over of case property to him. He has also stated that he had sent sample to CTL Kandaghat through Balvinder. PW-5 Deepak has 4 stated that in his presence nothing was recovered from the house of Rajinder Kumar nor any search was conducted. He was declared hostile and was cross-examined by the prosecution but nothing favourable to the prosecution was extracted in his cross-examination. He has stated that he can only sign but cannot read. He denied that he gave statement mark A to A to police. He has denied that a pouch was separated for chemical examination and was sealed with seal ‘H’ and the seal was handed over to him. He denied that contents of seizure memo Ex. PW-2/A were read over to him. The respondent has denied the prosecution case in his statement under Section 313 Cr.P.C. 7. The prosecution case is that on receiving secret information near Ghora hospital a raiding party was constituted and PW- 5 Deepak was associated in the raiding party. It has also come in evidence that thereafter the raiding party went to the house of the respondent at Krishna Nagar which is a thickly populated area. It has also come on record that Ghora hospital is on Cart Road where other shops are located. PW-3 Harjeet Singh has stated that no person was called from the shops for associating in the raiding party. It has also come in evidence that the distance between Ghora hospital and Krishna Nagar is about 300 yards and instead of joining the witnesses of the raiding party from around Ghora hospital, the police allegedly opted to call PW-5 Deepak from a distance of about 300 yards. PW-2 has stated that at the time of raid, wife, children and mother of the respondent were present in the house but PW-3 Harjeet Singh has stated that respondent was alone in the house and none else was present there. PW-5 Deepak has not supported the prosecution case. He has stated that he is illiterate. He has specifically stated that seal ‘H’ was not handed over to him and seizure memo Ex.PW-2/A was not read over to him. It has been 5 submitted on behalf of the State that the official witnesses have supported the prosecution case and respondent can be convicted in view of positive statements of official witnesses. It is not the prosecution case that alleged occurrence took place at an isolated place where independent witnesses were not available. In fact according to prosecution, PW-5 Deepak was associated in the raiding party but he has not supported the prosecution. There is no explanation why at the time of raid, second witness was not associated by the police. It is not a case of the nature where accused can be convicted simply on the statements of official witnesses. The learned Chief Judicial Magistrate has rightly appreciated the material on record. The view taken by him is not perverse, rather it is possible. The appellate Court will not change the acquittal into conviction simply on the ground that other view is also possible. The prosecution has miserably failed to prove the case, resultantly, the appeal fails and is accordingly dismissed. The bail bonds are discharged. ( Kuldip Singh ), Judge. March 13, 2009. (GR)