IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 599 of 2003 Reserved on: 18.10.2011 Date of decision: 24.11.2011 Hari Ram ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.K. Gautam, Senior Advocate with Mr. Vikrant Chandel, Advocate. For the respondent: Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja , J.: This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Special Judge (Sessions Judge), Solan, dated 17/18.12.2003, vide which the appellant was held guilty and sentenced under Section 7 read with Section 10 of the Essential Commodities Act, for rigorous imprisonment for a period of one year and to pay a fine of ` 10,000/-. In default of payment of fine, the appellant was to undergo simple imprisonment for a period of three months. 2. Briefly stated, the facts of the case are that a police party headed by ASI Chaman Lal was on patrolling in the bazaar at Badddi on 21.2.2000. A secret information was received by ASI 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Chaman Lal at about 4.00 P.M. that Hari Ram, who was running a cycle repair shop, was selling kerosene oil without permit at the rate of ` 10/- per litre in collusion with his employee Ranjeet Singh (proclaimed offender). He formed a raiding party by including two independent witnesses and raided the shop of Hari Ram accused, who on seeing the raiding party fled away. He was chased by the police officials, but could not be apprehended. The servant of the accused, namely, Ranjeet Singh, co-accused, was found in the shop and he informed it was the accused who has run away from the shop. On search of the shop, 70 litres of kerosene oil was recovered in drums and samples were taken, which were sent for analysis. On completion of the investigation, the challan was filed before the learned trial Court, who tried the accused, leading to his conviction, as detailed above. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the record of the case, it is clear that out of 11 witnesses examined by the prosecution two witnesses can be said to be material, namely, PW-11 Dalip Singh and Mohinder Singh, who were associated in the raiding party by the Investigating Officer. The said Mohinder Singh was not examined and was given up being repetitive in nature. There were only two independent witnesses in the raiding party and the prosecution had chosen to give up one to avoid repetition and only examined PW-11 Dalip Singh. The said Dalip Singh as PW-11 has stated that the accused was running a cycle repair shop and they found servant of the accused, namely, Ranjeet Singh, in the shop of the 3 accused, but Hari Ram fled away. He did not state that Hari Ram was found sitting in the shop and on seeing the police party, he ran away. It is, therefore, clear that the recoveries were effected in the presence of the said servant of accused, namely, Ranjeet Singh, who was the co-accused and has been declared as a proclaimed offender. He further stated that the accused could not produce licence of kerosene oil. He also stated that the accused was not apprehended in his presence. His village is at a distance of 1½ K.M. from the said shop and he cannot be said to be a resident of the area. He clearly stated that Ranjeet Singh was found present there, who was servant of accused, but no statement of adjoining owners of the shops were taken that he was servant of the accused. The said ASI Chaman Lal has been examined as PW-10, who raided the shop after associating two witnesses. He stated that Hari Ram fled away and Ranjeet Singh was only present there. In regard to identity as to who has fled away, Ranjeet Kumar has stated that Hari Ram accused had fled away and he himself disclosed that he was his servant. 5. From the above discussion, it is very clear that both the witnesses have no where stated that Hari Ram was found present in the shop and was seen by them, but had fled away from the shop. The Investigating Officer PW-10 had admitted that he had not verified as to who was the proprietor of that cycle shop and in the absence of such evidence, it cannot be concluded that the recoveries were effected from the shop owned by Hari Ram accused. PW-3 Rajesh Kumar and PW-4 Susheel Kumar, adjoining shopkeepers, have also stated that the accused was running a 4 cycle repair shop only. The only independent witness examined does not support the prosecution case and the identification of the present accused was said to be proved from the version given by the co-accused to the police and it does not establish that the kerosene oil was recovered from the exclusive and conscious possession of the accused. It has also come up on record that recoveries were effected on 21.2.2000 and the samples were received in the office of the Forensic Science Laboratory on 2.3.2000. There is no explanation in late sending of the samples, though there was no considerable delay. However, the prosecution had failed to prove the identity of the shop or the identity of the accused that he was running the shop or was owner of the shop in question and, therefore, the recoveries made allegedly from his shop cannot be attributed to him. Therefore, the findings of the learned trial Court to the contrary are liable to be reversed. 6. In view of the above discussion, I accordingly hold that the findings recorded by the learned trial Court are liable to be set aside and are accordingly set aside. The appeal is allowed and the sentence imposed upon the appellant is set aside. Fine if recovered, shall be refunded back to the appellant after a period of three months or in case of appeal, after the decision of the same. The bail bonds furnished by the respondent shall stand discharged. November 24 , 2011 ( V.K. Ahuja ), (BSS) Judge