IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 69 of 2003 Decided on 24.4.2010 State of H.P. ….Appellant Versus Narinder Kumar and others …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. For the Petitioner: Mr.J.K.Verma, Deputy Advocate General For respondent No.1: Ms. Uma Manta, Advocate For respondent No. 2: Mr. Ramesh Sharma, vice counsel For respondent No. 3: Mr. Neeraj Sharma, Advocate Justice R.B. Misra, .J. (Oral) The present appeal has arisen by granting leave to appeal under Section 378(3) of the Code of Criminal Procedure with reference to the order, dated 31.10.2002, passed by the Chief Judicial Magistrate, Shimla in Criminal Case No. 245/3 of 1999, whereby while adjudicating the case with reference to an offence under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, the alleged accused respondents have been acquitted. 2. In order to adjudicate the present appeal, it is necessary to give factual background of the case. According to the prosecution case, on 28/29.9.1998, a naka was made on the cart road near Bindu Raj Dharamshala, whereby a Maruti Van bearing No. CH-01-T-0307 was apprehended by ASI Amar Singh alongwith Constable Budhi Singh, Narinder Mohan, Manoj Kumar, No. 1156, Manoj Kumar no. 779 and Parma Nand. It was about 4.30 a.m. when the said Maruti Van was coming from Victory Tunnel side when it was stopped and said Maruti Van was being driven by one Paramjit alongwith Narinder Kumar and Rajesh Kumar sitting inside the Van. It was noticed that five backs were kept behind the driver seat and on checking, it was found that these five bags were containing 450 pouches of country made liquor having Hero Marka each 180 M.L. 3. On inquiry, the alleged accused could not produce any permit/license for carrying such huge quantity of country made liquor. One pouch was kept for chemical analysis out of the recovered bags and thereafter all the five pouches were put into a parcel which was sealed and 4/5 pouches were taken into possession. The Maruti Van was taken into possession, however the same was released subsequently under supurdari in reference to the order of the court. After completion of investigation, the alleged accused were charged for the offence under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh. 4. The prosecution examined as may as four prosecution witnesses, whereas in the statement of accused recorded under Section 313 Cr.P.C. they have denied the incidence and carrying of alleged quantity of country made liquor. Only that the accused have confessed is that on 29.9.1998 at about 4.30 a.m. ASI Amar Singh had Nakabandi, where the said Van was stopped. 5. From the record it is seen that no independent witness has come forward, whereas the said place where the nakabandi was made on the said date, is a crowded place and people were easily available at the said place. 6. PW-4 Amar Singh, investigating officer, has reiterated the version of the prosecution and has asserted that the said Van was first taken into possession and was subsequently released on sapurdarinama vide Ex. PW-4/B. Ex. P-1 is the driving license of the driver. As per testimony of PW-4, no witness was available. Therefore, no independent witness was examined. PW-1, Narinder Mohan, however, has also corroborated the prosecution version on all material particulars. PW-2 was also associated with the said recovery of said country made liquor and which happens to be a seal sample on the recovery material further sent for chemical examination. PW-3 Pritam Singh ahs also corroborated the prosecution version. 7. Such instance on 28/29.9.1998 alleged to have taken place at 4.30 a.m. at a popular place could not be by chance. If the naka was organized, then it is surprising that how independent witnesses were not associated for such naka party and to witness such alleged serious instance. Though from the testimony of PW- 1, Narinder Mohan, it appears that at the time of the alleged recovery of liquor at 4.30 a.m. there were many persons at the bus stand and in order to complete the investigation, it took one and half hours. As such , it appears the police party remained on the spot upto 6.0 a.m. In these circumstances, it cannot be believed that independent witnesses could not be associated to witness the recovery of the liquor from the possession of the alleged accused. It also appears that Amar Singh (PW-4) is a complainant. He was to investigate the case. For lack of support by independent witnesses and for preponderance of improbabilities, the prosecution case is found to be doubtful by the Chief Judicial Magistrate. 8. After careful consideration, I find that in the facts and circumstances of the case, the Chief Judicial Magistrate, vide his order, dated 31.10.2002 has rightly found that the prosecution has not been able to prove its case beyond reasonable doubt. Accordingly, the benefit of doubt has been given to the accused. In view of the above discussion, there is no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the accused-appellant, are hereby discharged. April 24, 2010(K) ( Justice R.B. Misra ), Judge