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Himachal Pradesh High Court · body

2007 DIGILAW 253 (HP)

STATE OF H. P. v. RAMESH CHAND

2007-06-21

SURINDER SINGH

body2007
JUDGEMENT Surinder Singh, J. (Oral):-The respondent was prosecuted, under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, for allegedly carrying 12 bottles of Indian made Foreign Liquor on 21.3.1993 near Bus Stand, Sujanpur. 2. The learned trial Court in Excise Case No. 12-111 of 1993, vide its detailed judgment dated 15.11.1997 acquitted the respondent on the ground that the police party did not include the independent witnesses during the search of the respondent, as required under Section 100 (4) of the Code of Criminal Procedure to inspire confidence in prosecution case and further that the alleged offensive material could not be proved to be in his exclusive and conscious possession. 3. Feeling aggrieved and dissatisfied by the impugned judgment of acquittal, the appellant-State has filed the instant appeal on the ground that the learned trial Court did not appreciate the evidence of the official witnesses in the right perspective and the conclusions arrived at in the judgment are such which could not have been possibly arrived at had the court appreciated the evidence in its right perspective. 4. I have heard Sh. V.K. Verma, learned Additional Advocate General and Shri Ramesh Sharma, learned counsel appearing for the respondent and have examined the evidence on record of the trial court. 5. In brief, the prosecution story has been that the respondent, on the date aforesaid, was intercepted by the police party. On getting suspicious about his moments his personal search was conducted and they recovered 12 bottles of Indian made Foreign Liquor from a cartoon box, which was in his rucksack. Out of 12 bottles of liquor, samples of only three bottles were taken and the same were alleged to have been sealed with a seal Mark "T" which was handed over to LHC Mahant Ram (PW-4); remaining bottles were also sealed and the case property was also taken into possession vide recovery memo Ex.PW-1/A. Site plain Ex.PW-3/D was prepared and a ruqua Ex. PW-3/A was sent for registration of a case, on the basis of which a formal FIR Ex.3/B was registered. 6. The samples were sent for examination to the Chemical Laboratory at Kandaghat through LHC Mahant Ram (PW-4) aforesaid. In the opinion of the Chemical Examiner, the samples of I.M.F.L LAB No. 240/4, contained 73.8% alcohol and OAB No. 240/5 and LAB No. 240/6 74.1% proof of alcohol strength. 6. The samples were sent for examination to the Chemical Laboratory at Kandaghat through LHC Mahant Ram (PW-4) aforesaid. In the opinion of the Chemical Examiner, the samples of I.M.F.L LAB No. 240/4, contained 73.8% alcohol and OAB No. 240/5 and LAB No. 240/6 74.1% proof of alcohol strength. The report of the Chemical Examiner is Ex. PX. 7. Challan was put in the court and the trial court found prima-facie a case against the respondent under the aforesaid section, accordingly he was charge-sheeted. The respondent pleaded not guilty and claimed trial. 8. The prosecution examined Constable Tarlok Singh (PW-1), Inspector Dharamvir (PW-2), Investigating Officer Satish Kumar (PW-3), LHC Mahant Ram (PW-4) and ASI Bhagwant Singh (PW-5). 9. The respondent was examined under section 313 Cr.P.C. He denied the circumstances put to him and did not lead any defence evidence. On appreciation of the evidence the respondent was acquitted. 10. It is well settled law that in appeal against acquittal if two views are reasonably possible of the evidence on the record, then the view in support of acquittal of the case should be preferred. In the instant case the regrettable features are that the respondent was alleged to have been found in possession of 12 bottles of IMFL near the bus stand Sujanpur and it has come in evidence that many persons were present during that time but no attempt was made to associate an independent witness by the police in order to inspire confidence in the prosecution case in view of fact that no article connecting the accused was found in his ruck-sack. Secondly, out of 12 bottles of IMFL, samples of only three bottles were taken, so the prosecution has left us in lurk as to what another nine bottles contained. Thirdly, there is no link evidence, who had taken the case property to the police station; further LHC Mahant Ram (PW-4) is stated to have taken the sample for analysis to Chemical Laboratory, Kandaghat, but as PW-4 did not whisper even a Single word about it. No one came forward to say that the case property / samples were not tempered with. It is imperative on the prosecution to over-rule the possibility of tempering with the case property / or the samples till its examination.. Since link evidence is missing in the instant case, benefit of which has to be given to the accused. No one came forward to say that the case property / samples were not tempered with. It is imperative on the prosecution to over-rule the possibility of tempering with the case property / or the samples till its examination.. Since link evidence is missing in the instant case, benefit of which has to be given to the accused. Lastly, the seal with which the case property was sealed was not produced by LHC Mahant Ram, with whom it was entrusted. In view of the above discrepancies, case of the prosecution does not inspire confidence and conviction cannot be sustained on the version given by the official witnesses before the trial court. Accordingly, the impugned judgment of acquittal cannot be disturbed. 11. For the reasons aforesaid, the appeal merits dismissal which is accordingly dismissed. The respondent is discharged of the bail bonds, entered upon by him during the proceedings of the trial.