JUDGMENT M.R. VERMA, J.—The present appeal has been directed by the State against the judgment dated 29.3.1995 passed by the learned Judicial Magistrate 1st Class, Court No. 2, Amb, whereby the accused-respondent (hereinafter referred to as the accused") has been acquitted of the charge under Section 61 (l)(a) of the Punjab Excise Act as applicable to Himachal Pradesh. 2. Briefly stated, the case of the prosecution is that on 16.3.1992 at about 1 p.m., PW-7 ASI Joginder Singh (head constable at the relevant time) was present at Bus Stand, Neharian alongwith HC Sukhdev Singh, LHC Daljit Singh and LHC Charan Singh. The police party saw the accused going towards Patehar with a bag in his hand who, on seeing the police party tried to bolt away. Getting suspicious, the police apprehended the accused and on his search, a bag in his possession was found containing six liquor bottles with the mark Trilok Sons Officers XXX Rum. After breaking open the seals of three bottles containing liquor, three nips were filled in with the liquor for the purpose of sample and the remaining liquor and the sample were thereafter sealed with seal A. After use, the seal was handed over to PW-Uttam Chand. Ruqua Ex. PW-5/A was prepared by PW-Joginder Singh and was sent to Police Station, Amb where FIR Ex. PW-5/B came into being on the basis of the said ruqua. Three sample nips were sent to the Chemical Examiner, Kandaghat who, on analysis thereof, found that the samples of IMFL Lab. No. 186/4, Lab. No. 186/5 and Lab. No. 186/6 contained 74.0% proof, 74.4% proof and 74.7% proof alocoholic strength respectively. Thus, on being satisfied that the accused was in possession of six bottles of XXX Rum without a permit for possession/transportation thereof, the police submitted a charge sheet against the accused. 3. The accused was tried by the learned Judicial Magistrate 1st Class, Court No. 2, Amb and was found not guilty of the Commission of the offence charged and was accordingly acquitted. 4. Feeling aggrieved with the judgment of acquittal, the State Government has come up in this appeal. 5. I have heard the learned Additional Advocate General and the learned Counsel for the accused. 6. 4. Feeling aggrieved with the judgment of acquittal, the State Government has come up in this appeal. 5. I have heard the learned Additional Advocate General and the learned Counsel for the accused. 6. To disbelieve the prosecution version the learned trial Magistrate has recorded the reasons : (i) that names of PWs Uttam Chand and Nizam Deen were introduced by the police in the case without explaining the circumstances in which they came to be associated in the alleged search and recovery of the liquor without permit from the accused; and (ii) that. Nizam Deen alleged independent witness of recovery has not been examined and reasons therefor have not been explained leading to the inference that he would not have supported the prosecution version and such omission was fatal to the case of the prosecution. 7. It is evident from the contents of ruqua Ex. PW-5/A that search and recovery and preparation of memo thereof Ex. PW-1/ A has preceded the preparation of the ruqua. A perusal of ruqua Ex. PW-5/A does not show that PW Uttam Chand and PW Nizam Deen were accompanying the police party. It also does not disclose as to at which stage Uttam Chand was associated in the investigation as a witness. Ruqua Ex. PW-5/A does not even disclose the name of Nizam Deen as a witness of search and recovery though his signatures appear on the memo of search and recovery Ex. PW-5/A. Had this witness really been present on the spot his name as a search witness would have figured in the ruqua Ex. PW-5/A The circumstance clearly show the lack of fairness in the search and recovery rendering the prosecution version highly doubtful. 8. PW Nizam Deen the alleged witness of recovery has not been produced and examined nor reasons for the same have been stated. The permissible reference is that had this witness been produced he would not have supported the prosecution case and withholding of such a material witness without assigning any reason is fatal to the case of the prosecution. 9. Thus, the reasons recorded by the learned trial Magistrate to disbelieve the prosecution case and resultantly to acquit the accused are well founded. 10. 9. Thus, the reasons recorded by the learned trial Magistrate to disbelieve the prosecution case and resultantly to acquit the accused are well founded. 10. In addition, be it stated that the accused in his statement has denied the case of the prosecution and has stated that he used to carry the luggage of the passenger in and out of the bus at the Bus Stand at the relevant time. 11. From the trend of the cross-examinations the defence taken for the accused appears that he was working as a labourer at the bus adda and was carrying the luggage including the bag of one Sardar to Mehri and that the police have tried to apprehend that Sardar but could not succeed. 12. It has been suggested to the material witnesses namely, PW-7 Joginder Singh, PW-4, Uttam Chand and PW-1, Daljit Singh in the cross-examinations. PWs Joginder Singh and Uttam Chand have stated that they are not aware that the accused at the relevant time was working as a labourer at the bus stand whereas PW Daljit Singh has stated that accused was working as a labourer at the bus adda. PW-1 Daljit Singh, Head Constable, has admitted that luggage of thousands of passengers was lying on the spot. He has further admitted that accused was saying something to the Hawaldar (I.O.) but he is not aware of the version of the accused. PW-7 ASI Joginder Singh (I.O. and Head Constable at the relevant time) has denied the suggestion that the attache and the bag in question belonged to a Sardar and the accused was carrying it being a coolie. He has further denied the suggestion that the police party alongwith the accused travelled a long distance to apprehend the Sardar. However, he has admitted that the Sardar could not be traced out. If any Sardar was not involved in the matter then what was the occasion to attempt to trace him out, which action of the police is implied in the admission of the I.O. PW-7 Joginder Singh that Sardar could not be traced out. 13. Thus the version of the accused that he was carrying the bag in question and an attache belonging to a Sardar who could not be traced out by the police despite efforts appears most probable and has to be accepted in view of the week and infirm case of the prosecution against him. 13. Thus the version of the accused that he was carrying the bag in question and an attache belonging to a Sardar who could not be traced out by the police despite efforts appears most probable and has to be accepted in view of the week and infirm case of the prosecution against him. 14. For all the reasons stated hereinabove, the appeal fails and is accordingly dismissed. The bail bonds of the accused/respondent are discharged. Appeal dismissed.