HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 70 of 2004 Decided on: 30.9.2010 State of H.P. ……… Appellant. Versus Dilbag Singh and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondents: Mr.Malay Kaushal, vice counsel. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. against the judgment of the court of learned Judicial Magistrate Ist Class, Court No.II, Dehra, dated 31.7.2003, vide which the respondents were acquitted of the charge framed against them under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of H.P. 2. Briefly stated, the facts of the case are that on 27.2.1998 at about 11.30 a.m., ASI Dulo Ram, Incharge Police Post, alongwith other police officials, was present at Swan Bridge, Sansarpur. A Tata Sumo came there which was being driven by respondent No.1 and respondent No.2 was sitting inside the said vehicle. On checking of the vehicle, 3 boxes each containing 12 bottles of finest whisky/english liquor were found without any permit. Both the respondents were apprehended and three samples were taken out of these ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - bottles. After completion of the investigation, the challan was filed before the learned trial Court, who tried the respondents under the aforementioned Sections, leading to their acquittal. 3. I have heard the learned Assistant Advocate General for the appellant and the learned counsel for the respondents and have gone through the record of the case. 4. On appraisal of the record of the case, it is clear that the learned trial Court had taken the point as to whether the Investigating Officer PW-7 Dulo Ram, SI, was competent to carry out the investigation or not. I am not expressing any opinion on this point suffice to say that the main reason given by the learned trial Court in disbelieving the prosecution story was that no independent witnesses were associated or have corroborated the statements of the Investigating Officer PW-7 Dulo Ram and PW-2 HC Piar Singh, who was the member of the raiding party. No reference has been made to the mandatory provisions of Section 100(4) of the Cr.P.C., which were not complied with by the Investigating Officer nor he gave any reasons for non- compliance of these mandatory provisions. 5. According to Section 100(4) Cr.P.C. two or more independent witnesses are required to be associated at the time of search and in case the Investigating Officer is not able to associate independent witnesses, he has to give reasons for non-association of independent witnesses. These provisions are applied mainly for the search of a premises, but these are also applicable in the case of personal search. PW-7 Dulo Ram has not given any reason for not associating - 3 - any independent witnesses. The only reason given by him is that since these were winter days, therefore, no independent witness could be associated and no witness was present there. The recovery in question was effected on 27.2.1998 at 11.30 a.m. and it cannot be said that the witnesses could not have been associated at that time. He, however, does not give explanation that he made attempts but none was available and, therefore, he did not associate any independent witness. 6. PW-2 HC Piar Singh has admitted that there are shops near the barrier but he stated that he cannot say if the shops were closed or open at that time. He, however, admitted that many persons were going from the barrier in the vehicles, but there is nothing on the record to show that any attempt was made to join independent witnesses. In the absence of independent corroboration and in spite of the opportunity to associate independent witnesses, the statement of PW-2 HC Piar Singh and PW-7 SI Dulo Ram in regard to the recovery of bottles of whisky cannot be relied upon so as to hold that the prosecution has been able to prove the guilt of the respondents. 6. In view of the above discussion, the view taken by the learned trial Court cannot be said to be perverse and as such there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondents shall stand discharged. September 30, 2010. (V.K. Ahuja), (TILAK) Judge