1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.37 of 2004 Date of Decision: 21st June, 2010 State of Himachal Pradesh Appellant Versus Vikas Negi and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.R.M.Bisht, Dy. Advocate General. For the respondent: Mr.M.L.Bragta, Advocate. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 21.5.2002, accused was put to trial. In terms of judgment dated 18.9.2003 passed by learned Judicial Magistrate, Ist Class (4), Shimla, in Cr. Case No.17/3 of 03/2002 titled as State of H.P. vs. Vikas Negi and another, the accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 21.5.2002 at about 7.20 a.m. ASI Param Dev alongwith H.C. Tek Ram, constable Kesar Singh and Constable Hardev Singh were present at a place near Mashobra Chowk, Tehsil and District Shimla, H.P. in connection with excise patrolling duty. Accused Vikas Negi and accused Anirudh came in a Car bearing No. HP-51- 0052. The Car was driven by accused Anirudh. On the basis of suspicion, Whether the reporters of Local Papers are allowed to see the Judgment? 2 the police stopped the vehicle. The vehicle was searched and 240 pouches of country liquor, (Mark Gulab, 180 ml. each, 12 bottles of English liquor Director Special 750 ml. each and 24 bottles of Bagpiper 750 ml. each), were recovered from the exclusive and conscious possession of these persons. For the purpose of chemical examination, out of the recovered liquor, 20 pouches of country liquor, four quarters (pints) of Director Special, four quarters (pints) of Bagpiper Branch were separated for the purposes of chemical examination. Sample alongwith remaining liquor were taken into possession vide Memo Ext. PW-1/A. Rukka (Ext.PW-7/A) was prepared on the basis of which FIR (Ext.PW-4/E) was registered at Police Station Dhalli, District Shimla, H.P. 3. The vehicle in question alongwith documents were taken into possession vide Ext. PW-4/D and the sealed sample packets were sent for Chemical examination to C.T.L. Laboratory, Kandaghat. The reports of Chemical Examination Ext.PX1 to Ext.PX-7 were obtained by the police. 4. With the completion of the investigation, the challan was presented in the Court for trial. Notice of acquisition was put to the accused for having committed an offence punishable under Section 61(1)(a) of Punjab Excise Act as applicable to the State of Himachal Pradesh to which they did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined seven witnesses and the statement of the accused under Section 313, Cr.P.C. was also recorded. The Court below has acquitted the accused of the charged offence. 6. I have gone through the statements of the witnesses and in my view there is no illegality, perversity or irregularity in the judgment. 3 7. The independent witnesses, namely, Shri Sanjiv Sharma (PW- 1) and Shri Ram Kishan (Pw-5) have not supported the prosecution version at all. In spite of they having extensively cross-examined by the Public Prosecutor nothing material has come forward on the basis of which accused can be held to be guilty. 8. However, this by itself would not mean that case set up by the prosecution is to be thrown out. It is a settled position of law that statement of police officials can be relied upon for the purposes of proving the guilty of the accused provided they inspire confidence. In this background the statement of the remaining spot witnesses, viz. HC. Tek Ram (PW-4), ASI Param Dev (PW-7) needs to be examined. Having gone through the same, I am of the considered view that there are major contradictions which are fatal to the case and also the statements of the witnesses do not inspire confidence. 9. With regard to registration of FIR, the mode, manner and the timing of the search carried out by the police there are contradictions rendering the version to be immediately doubtful. Whereas according to Pw- 3 sealed sample was received by him in the Malkhana on 21.5.2002 at about 8.30 p.m., the FIR (Ext.PW-4/E) itself was registered at 9.30 p.m. That apart even PW-4 states that they got free from the spot and reached the Police Station only at about 11 a.m. If this were so then obviously sealed samples could not have been deposited in the Malkhana at about 8.30 p.m. 10. There are contradictions also with regard to the nature of the seal put by the police officials present at the spot. According to PW-4 the seal was made of wood whereas according to PW-7 the same was that of iron. According to PW-4, the police party was in possession of empty bottles (pints), which were used for filling the liquor as sealed samples. This stands 4 materially contradicted by PW-6 and PW-7 according to whom the same was procured at the spot. Now there is no link evidence to show from where the said bottles were actually procured. 11. That apart, the case property produced in the case has not been linked with the FIR or the case in question. The statements of the police officials are also vague in nature. 12. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. 21st June, 2010 (Sanjay Karol) (C) Judge.