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Himachal Pradesh High Court · body

2008 DIGILAW 591 (HP)

Om Parkash v. State of H. P.

2008-12-04

SURINDER SINGH

body2008
JUDGMENT (Surinder Singh, J.) (Oral) - Heard and gone through the record to examine is legality, propriety and correctness of the impugned judgments. 2.In brief the prosecution case has been that on 15.10.1997 at about 5.30 p.m. Head Constable Jai Gopal (PW4) alongwith Constable Babu Ram (PW1), HHG Bhagat Ram were on their way to Jhiriwala in connection with the investigation of another case FIR No. 162 of 1997, when they reached near Mahadev Pul, they spotted appellant carrying a bag who on seeing the police had tried to escape. Police entertained suspicion and apprehended him. Search of the bag (Ex.P4) was conducted. Police recovered three bottles of country liquor marked “HIMFED No. 1” (Ex.P-1 to P-3). One nip out of each bottle was taken for the purpose of examination. The nips and bottles were separately sealed with seal impression “H”. Impression of seal Ex.PW1/B was taken separately on a piece of cloth and after its use seal was handed over to Constable PW1 Babu Ram. 3.The case property was taken into possession by the police vide memo Ex.PW1/A in the presence of the official witnesses. 4.Ruqua Ex.PW4/A was sent for registration of the case to the police station, which culminated into FIR Ex.PW2/B. 5.site plan Ex.PW4/B was also prepared. 6.After recording statements of the witnesses and on receipt of the report of the Chemical Examiner, a challan was presented in the Court for trial of the appellant. 7.Notice of accusation was put to the appellant, to which he pleaded not guilty and claimed trial. 8.To prove its case, the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put to him. No evidence in defence was led. 9.At the end of the trial, the appellant was convicted by the learned trial Court under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh, as such he was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 5,000/-. 10.The appellant felt aggrieved and dissatisfied by the impugned judgment of conviction and sentence and filed an appeal, before the Court of learned Sessions Judge, which was assigned to learned Additional Sessions Judge. Vide his detailed judgment passed in Criminal Appeal No.; 18-NL/10 of 1999, the appeal was dismissed on 21.7.2001. 5,000/-. 10.The appellant felt aggrieved and dissatisfied by the impugned judgment of conviction and sentence and filed an appeal, before the Court of learned Sessions Judge, which was assigned to learned Additional Sessions Judge. Vide his detailed judgment passed in Criminal Appeal No.; 18-NL/10 of 1999, the appeal was dismissed on 21.7.2001. 11.Now the present revision petition has been preferred on the ground that the courts below did not appreciate the evidence on record in its right perspective, which has caused miscarriage of justice and further the law was not rightly applied to the facts and circumstances of the case. 12.Legally, to sustain a conviction against the accused, the prosecution is under obligation to prove that from the time of recovery of contraband till its deposit in the malkhana and examination in the Laboratory, the chain must be complete and all the persons/officials who happened to handle the case property/particularly the samples or exchange hands should not only be examined but they should also testify on oath during the trial that the sample(s) was/were properly secured and preserved in a manner to over rule any possibility of its tampering in any manner so as to bring home the guilt of the accused. 13.In the present case, recovery of alleged country liquor was affected on 15.10.1997 at about 5.30 p.m., by PW4 Head Constable Jai Gopal, but he did not depose that the case property was deposited with PW2 M.H.C. Ranjeet Singh in the malkhana. The accused took the risk asking a specific question in his cross-examination with respect to the time and date of deposit of the case property, surprisingly the witness who is the Investigating Officer feigned his ignorance. 14.Even PW2 Head Constable Ranjeet Singh did not say as to who had deposited the case property with him. 15.Further PW2 M.H.C. he stated that on 17.10.1997 three nips of samples were sent for its examination to CTL Kandaghat through constable Nek Ram, but he no where stated that samples of seal was also sent through said constable. if that being so, it is not understood how the Chemical Examiner was able to certify on the report that the sample of seal corresponded or tallied with the seal found on the samples. if that being so, it is not understood how the Chemical Examiner was able to certify on the report that the sample of seal corresponded or tallied with the seal found on the samples. 16.The seal which was used for sealing the samples and other case property was stated to have been handed over to PW1 Babu Ram Constable but in his statement he did not say so nor the seal was produced in the court during the trial by any of the witness. 17.Against the above background of the case it was also incumbent upon the prosecution to prove the entry in the malkhana-register with respect to deposit of sample by the official and also is deposit in C.T.L. Kandaghat with a sample of seal by proving the road certificate, which was not done, thus it causes a thick cloud on the authenticity of the prosecution case. 18.Thus, the prosecution has failed to prove link in this case, as discussed above it gives a rise to a reasonable suspicion that there was a chance to tamper with the samples of liquor, alleged to have been taken on the spot from the bottles, recovered from the accused by PW4 Head Constable Jai Gopal. 19.For the reasons aforesaid, in my opinion the courts below did not appreciate the facts in view on the settled law, as such after examining the legality, propriety and correctness of the impugned judgments, I find that the view taken by the learned courts below for holding the petitioner guilty was totally erroneous. As such, the conviction and sentence passed by the learned trial Court and affirmed in appeal by the learned Additional Sessions judge are hereby set aside and the petitioner stands acquitted by giving him the benefit of reasonable doubt. Consequently, the revision petition is allowed. 20.The fine amount if any deposited be returned to the petitioner forthwith. 21.Send down the records. M.R.B. ———————