IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.670 of 2001 Date of decision : October 16, 2008 State of H.P. …Appellant. Versus Beer Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Deputy Advocate General. For the Respondents : M/s N.K. Thakur, Ashwani Pathak and Ravinder Thakur, Advocates. Surjit Singh, Judge( Oral ) State has appealed against the judgment of trial Magistrate, whereby respondents Beer Singh, Som Nath and Subhash Chand, who were charged with and tried for an offence, under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, have been acquitted. 2. Respondents were challaned by Dehra Police, for allegedly being in possession of 24 bottles of Boxer XXX Rum and 8 bottles of Binnie Whisky. It was alleged that on 31st January, 1993, a police party, headed by PW-6 ASI Bidhi Chand and comprising PW-4 LHC Ashok Kumar No.787 and PW-5 HC Ashok Kumar No.704, organized a Naka, at a place called Pucca Prohon, when three persons were seen coming from the side of Whether reporters of the local papers may be allowed to see the judgment? …2… village Bagli. They were commanded to stop but two persons ran away from the spot. They were carrying two bundles with them, which they threw into the bushes. Third person was, however, overpowered. He was respondent Beer Singh. He was carrying a bag in which there were 12 bottles of Boxer XXX Rum. Respondent Beer Singh disclosed that the two persons, who were accompanying him and had run away, after throwing their bundles, were respondents Som Nath and Subhash Chand. Samples were taken from one bottle each contained in the bundles thrown away by respondents Som Nath and Subhash Chand and the bag seized from respondent Beer Singh. They were sent to the Chemical Examiner, who opined their contents to be of IMFL. 3. Prosecution examined six witnesses, including PW-6 ASI Bidhi Chand, who headed the raiding party and PW-2 LHC Ashok Kumar and PW-5 HC Ashok Kumar, who were the members of the raiding party, to bring home the charge to the accused-respondents. Trial Court did not believe the prosecution evidence and acquitted the respondents. 4. I have gone through the record and heard the learned Deputy Advocate General. 5. Evidence led by the prosecution is quite contradictory, inconsistent and full of infirmities. According to PW-4 LHC Ashok Kumar, the two respondents, who had run away from the spot, taking advantage of darkness, had two bundles with them, which they threw into the bushes and that respondent Beer Singh was having one bundle slung on his …3… right shoulder containing 12 bottles of XXX Rum and one bag containing 8 bottles of a brand of Whisky. That means, according to the statement of this witness, there were three bundles and one bag. PW-5 HC Ashok Kumar stated that respondent Beer Singh, who had been apprehended on the spot, was also carrying a bundle containing 12 bottles of XXX Rum and that the other two respondents, who had run away, were also carrying one bundle each. That means, according to his testimony, there were three bundles and no bag. PW-6 ASI Bidhi Chand also stated that there were three bundles and one bag containing XXX Rum and Binnie Whisky. He has stated that respondent Beer Singh was carrying a bundle on his right shoulder, which contained 12 bottles of XXX Rum and he was also carrying a bag, which contained 8 bottles of Binnie Whisky and that third bundle contained 12 bottles. 6. Thus, it is not clear from the oral evidence of the abovenamed three witnesses as to how many bundles/bags were there. Prosecution story is that the two respondents, who managed to escape, were having two bundles, which they threw into bushes and respondent Beer Singh was having one bundle containing 12 bottles of XXX Rum and a bag containing 8 bottles of Binnie Whisky, but the docket against which samples were sent to the Chemical Examiner, as per report of the Chemical Examiner Ex. PE, show that there were only two samples, meaning thereby that there could not have been three bundles and a bag. It is quite possible that both the bundles/ bags, from which samples were taken, were those, which the …4… persons, who allegedly fled from the spot, had thrown into the bushes, before fleeing. 7. There is no evidence that respondents Som Nath and Subhash Chand are the persons, who allegedly fled from the scene. Prosecution relies only on the alleged disclosure made by respondent Beer Singh to the police, at the time of his apprehension, that the persons, who had fled, were respondents, Som Nath and Subhash Chand. This alleged statement of respondent Beer Singh cannot be used as substantive evidence. It could have been taken into consideration alongwith other evidence and that too if respondent Beer Singh would have made a confession with regard to his alleged involvement, in view of the provision of Section 30 of the Indian Evidence Act. Moreover, the report of the Chemical Examiner, Ex. PE, does not stand connected with the samples allegedly taken from the recovered stuff. According to PW-2 LHC Gouri Ram, he had carried three samples and delivered the same at Kandaghat laboratory on 4th February, 1993, but the report of Kandaghat laboratory, Ex. PE, is to the effect that two samples were received and the date of receipt was 5th February, 1993 and not 4th February, 1993. 8. In view of the abovestated position, I do not see any justification for interfering with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. Appeal stands disposed of. October 16, 2008(sd) ( Surjit Singh ), J