Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 543 (HP)

STATE OF H. P. v. REKHA DEVI

2009-06-04

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J (Oral):-The acquittal of the respondent passed by the learned trial court under Section 61(1)(a) of Punjab Excise Act, as applicable to the Himachal Pradesh, has been assailed in this appeal by the State. 2. Precisely, the case of the prosecution is that on 20.11.1996, at about 1.30 p.m., PW5 Krishan Kumar, Sub Inspector was on patrolling duty along the other police officials. The respondent was found coming from the opposite direction with a plastic canny. Seeing the police party, she tried to escape. Apprehending some fishy, she was over-powered and in presence of one Guddu Ram, plastic canny was checked and as per the case of the prosecution, it contained four bottles of illicit liquor, out of which one nip was taken as a sample and the same was sealed with seal impression ‘K’. The remaining quantity of the illicit liquor was also sealed in the same canny with the same seal and the case property was taken into possession vide memo Ex.PW2/A. 3. Ruqa Ex.PW5/A was sent to the police station, for registration of the case, on the basis of which FIR Ex.PW5/B was registered. The site plan Ex.PW5/C with respect to the place of recovery was also prepared. 4. The case property was deposited with PW4 the then MHC Swaroop Kumar. The sample was sent through PW1 C.Jagdish Chand for its analysis to CTL Kandaghat. On the receipt of report Ex.PX, the case was presented in the court for the trial of the respondent. 5. Respondent was charge-sheeted for the aforesaid offence, to which she pleaded not guilty and claimed trial. Prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. She totally denied the prosecution case and pleaded her innocence. At the end of the trial, the respondent was acquitted. 6. Feeling aggrieved by the acquittal of the respondent, the State filed the instant appeal. Notice of this appeal was sent to the respondent, but she did not put in appearance on 3.7.2003, when the matter was taken up for hearing. As such, she was ordered to be served through the Non-bailable warrants. She was brought before this court on 31.7.2003, on which date, she was released on bail. Again the notice of actual date of hearing was issued in this case for today, but despite the service, she is not present. 7. As such, she was ordered to be served through the Non-bailable warrants. She was brought before this court on 31.7.2003, on which date, she was released on bail. Again the notice of actual date of hearing was issued in this case for today, but despite the service, she is not present. 7. Shri Vikas Rathore, learned Deputy Advocate General has vehemently argued that the learned trial court did not appreciate the evidence on record in the right perspective and there are grounds to convert the acquittal into her conviction. 8. I have carefully gone through the evidence on the record. I do not concur with the submission made by Mr. Rathore, for the reason, that the independent witness Guddu Ram, who was associated at the time of recovery of the alleged liquor was not examined by the prosecution to inspire confidence in the prosecution case, coupled with the fact that PW5 ASI Krishan Kumar did not say anything about the depositing of the case property with MHC PW4 Swaroop Kumar or its entrustment to any member of the raiding party, whereas, according to ASI Swaroop Kumar, the case property was deposited with him by C. Prem Chand, who was not examined. 9. Secondly, he also did not say anything about the deposit of the sample of seal. The case property was retained in Malkhana till 8.12.1996, whereas the recovery was made on 20.11.1996. The abstract of the Malkhana register has not been placed on record to show that if sample of seal was also deposited along with the case property and no reason has been explained for the late sending of the sample for its analysis. 10. Further PW1 Jagdish Chand who is alleged to have taken the sample for its analysis on 8.12.1996 through road certificate has also not stated anything about taking of the sample of seal along with the sample. Further the report Ex.PX shows that the sample so taken by him was deposited in the Laboratory on 11.12.1996. It is pertinent to note that neither PW4 nor PW1 aforesaid have testified on oath that the sample sent for its examination remained intact with them and neither any of them nor anybody else tampered with it. 11. Further the report Ex.PX shows that the sample so taken by him was deposited in the Laboratory on 11.12.1996. It is pertinent to note that neither PW4 nor PW1 aforesaid have testified on oath that the sample sent for its examination remained intact with them and neither any of them nor anybody else tampered with it. 11. Significantly, the receipt of the sample in the Laboratory has not been endorsed by any official of the laboratory nor there is any reference that the seal on the sample tallied with the sample of seal if any produced. 12. It is incumbent upon the prosecution to bring home the guilt against the accused to examine every official/officer in whose hands the sample changed from the time of recovery till its deposit in the laboratory, so as to complete and link and overrule any possibility of its tampering, which link is missing in this case. 13. Thus, on account of the aforesaid reasoning, in my opinion, the judgment of acquittal, passed by the learned trial court cannot be interfered with, as such, the appeal is dismissed. 14. The respondent is discharged of her bail bonds entered upon by her during the proceedings of the case. Send down the records.