JUDGMENT : Surinder Singh,J. (oral) : 1. The instant appeal has been filed by the State feeling aggrieved by the judgment of acquittal, passed in case No. 62/3 of 1999 dated 8.5.2001 by the leaned Chief Judicial Magistrate under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of Himachal Pradesh. 2. Precisely, the case of the prosecution has been that the respondent was indulged in unlawful business of liquor in his residential house. The raiding party of the police conducted the search of his house in the presence of the independent witnesses Surinder Singh and Nirmal Kumar and recovered 72 pouches of country liquor “Gulab” (180 ml.each), which were kept in a bag in his room. The respondent could not produce any permit or licence to show his lawful possession, thus out of the recovered quantity, only one pouch of country liquor “Gulab” of 180 ml. was retained as a sample. The ruqa for registration of the case was sent to the Police Station, on the basis of which a formal FIR Ex.PW5/C was registered. The police had taken into possession the case property vide memo Ex.PW4/A and the site plan Ex.PW5/D of the place of recovery was also prepared. The sample of seal impression `M’ with which the case property was sealed was taken on a piece of cloth Ex.PW5/E. The pouch which was sent for the analysis was examined at CTL Kandaghat, as per report Ex.PZ. It was a sample of `country liquor’ containing 48.7% proof alcohol strength. The police recorded the statements of the witnesses and presented the challan in the court for trial of the respondent. 3. The respondent was charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. The prosecution examined its witnesses and the trial court has also examined the respondent under Section 313 Cr.P.C. 4. Both the prosecution witnesses turned hostile to the prosecution and the official witnesses though proved the recovery but the respondent was acquitted on the ground that their testimonies were contradictory and lacked the corroboration and further that the case was bad for non-compliance of sub-section (6) of Section 100 of the Code of Criminal Procedure. 5. I have heard the learned Additional Advocate General and also the learned counsel for the respondent. 6. 5. I have heard the learned Additional Advocate General and also the learned counsel for the respondent. 6. At the very outset, I would like to say that neither the non-compliance of sub-section (6) of Section 100 of the Code of Criminal Procedure will render the search illegally nor the respondent can be acquitted on this sole ground. However, in the instant case the regrettable feature is that as per the case of the prosecution 72 pouches of country liquor of “Gulab” brand country liquor containing 180 ml.each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml. out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst. 7. There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the respondent also contain the country liquor more than the permissible quantity without the permit or licence. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious possession of the licit liquor in excess of the prescribed limit. 8. In view of this, the prosecution could only prove that the respondent was in possession of one pouch of 180 Ml. of country liquor in his possession which is not an offence. Therefore, in the present situation, the offence charged against the respondent cannot be said to have been proved. 9. Accordingly, for the reasons aforesaid the case of the prosecution fails. Consequently, the acquittal of the respondent is upheld, on the ground mentioned above. The appeal filed by the State is dismissed. 10. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of the case. 11. Send down the records.