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2013 DIGILAW 386 (HP)

GOPAL DASS v. STATE OF HIMACHAL PRADESH

2013-05-06

SANJAY KAROL

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JUDGMENT SANJAY KAROL, J. 1. ASSAILING the judgment dated 31.1.2004, passed by learned Chief Judicial Magistrate, Bilaspur, District Bilaspur, Himachal Pradesh, in Case No.255/1 of 2001, titled as State versus Gopal Dass & others, as affirmed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh, vide judgment dated 30.11.2006, passed in Criminal Appeal No.2/10, titled as Gopal Dass & others versus State of H.P., accused-petitioners (hereinafter referred to as the accused) have filed the present Revision Petition under the provisions of Section 397/401 of the Code of Criminal Procedure, 1973. 2. IT is the case of the prosecution that on 1.2.2001 at about 9.30 p.m., Inspector Shri Pritam Singh (PW-5) alongwith HC Shri Jai Pal, Constables Shri Ram Singh, Shri Brij Lal, Shri Pardeep and Shri Devi Ram, had laid a Nakka at Jhungi Mor, when the accused came in a vehicle (Jeep No.HP- 24-4434). Witness Shri Sajid Mohammed (PW-1) was also present there. The vehicle was stopped. Accused Gopal Singh was driving the vehicle and accused Prakash Chand and Amarjeet were sitting inside. On checking, it was found that 94 carton boxes were loaded in the jeep. One box was opened, which contained 12 pouches of country liquor of 'Ranger Orange' brand. Out of this box, three sample pouches were taken and sealed with seal impression 'J' and the remaining nine pouches of the opened carton box were also sealed. Sample seal was handed over to witness Shri Sajid Mohammed (PW-1). The cartons were seized in the presence of HC Shri Jagat Pal (PW-2). Ruka (Ex. PW-5/C) was sent through Constable Shri Brij Lal (not examined). On the basis of the same, FIR No.21/2001, dated 1.2.2001 (Ex. PW-4/A), under the provisions of Section 61 of the Punjab Excise Act as applicable to the State of Himachal Pradesh was registered at Police Station Sadar, District Bilaspur, Himachal Pradesh. The sample was sent to the Chemical Laboratory and report (Ex. PX) of the Chemical Examiner obtained by the police. With the completion of investigation, Challan was presented in the Court for trial. Accused were charged for having committed an offence punishable under the provisions of Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh to which they did not plead guilty and claimed trial. 3. IN order to establish its case, prosecution examined as many as six witnesses. Accused were charged for having committed an offence punishable under the provisions of Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh to which they did not plead guilty and claimed trial. 3. IN order to establish its case, prosecution examined as many as six witnesses. Statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure, 1973 were also recorded. 4. AFTER trial, accused were convicted for having committed an offence punishable under the provisions of Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh. Each of the accused was sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.5000/- each. In default of payment of fine, each accused was to further undergo simple imprisonment for a period of two months. The lower Appellate Court has affirmed the judgment of conviction and sentence passed by the trial Court. 5. THE Courts below have convicted the accused on the basis of testimonies of Shri Jag Pal (PW-2) and Inspector Shri Pritam Singh (PW-5). 6. SIGNIFICANTLY, the sole independent witness Shri Sajid Mohammed (PW-1) has not supported the prosecution case at all. He was declared hostile and cross-examined. His testimony does not prove the prosecution case with regard to his presence on the spot at the time when the contraband was seized and sealed. Shri Jag Pal (PW-2) and Shri Pritam Singh (PW-5) are police officials. It is a settled proposition of law that simply because the witnesses are police officials their testimonies are not to be disbelieved or always require corroboration. 7. IN the instant case, it be only noticed that there is a major flaw in the investigation of the police. Assuming that the contraband was actually recovered by PW-2 and PW-5, the police has not taken sample from all the cartons but only took three sample pouches and that too out of one carton box, which they had opened. None of these witnesses have deposed that the remaining 93 cartons were sealed; from outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. 8. ALL that these witnesses state is that 94 cartons of country liquor of 'Ranger Orange' brand were found in the jeep. 8. ALL that these witnesses state is that 94 cartons of country liquor of 'Ranger Orange' brand were found in the jeep. Inside the cartons could be anything. Police could not prove that the remaining 93 boxes actually contained liquor. In similar circumstances, this Court in State of H.P. Versus Ramesh Chand, Latest HLJ 2007 (2) 1017; Dharam Pal and another versus State of Himachal Pradesh, 2009 (2) Shim. LC 208; and State of Himachal Pradesh versus Kuldeep Singh & others, 2010(2) Him.L.R. 825, has acquitted the accused, as the prosecution could not prove, beyond reasonable doubt, as to what actually was there in the remaining boxes. In Dharam Pal (supra), a Single Bench of this Court Has held as under: "12...........In Krishnan and another v. Krishnaveni and another, 1997(4) S.C.C. 241 , the Apex Court Has held that when the High Court notices that there Has been violation of justice of misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order.............." 9. IN the instant case, there is nothing on record to show that 93 cartons were in fact containing liquor. Quantity of the remaining nine pouches has also not been proved. These aspects have not been considered by the Courts below. The cumulative effect is that the prosecution has failed to prove the charge against the accused and as such the judgments of the Courts below are not sustainable in law. 10. ACCUSED were three in number and the pouches seized by the police were twelve in number. Sealed samples in relation to only three pouches were produced in the Court. Rest of the sealed samples could not be produced in the Court to establish that the remaining nine pouches were in fact similar to the sealed samples or were containing liquor. Additionally, it be also observed that PW-2 in his cross-examination has admitted that he has not seen the carton boxes in the Court. Now why is it that prosecution did not produce the same in the Court and got the same verified from the witnesses, has not been explained. Additionally, it be also observed that PW-2 in his cross-examination has admitted that he has not seen the carton boxes in the Court. Now why is it that prosecution did not produce the same in the Court and got the same verified from the witnesses, has not been explained. In the instant case, case property ought to have been produced and shown to the witnesses in Court, so as to establish that all the boxes from physical appearance seemed to be identical in nature. 11. IT be also observed that there is contradiction in the testimonies of PW-2 and PW-5, with regard to their having left the Police Station for the purpose of setting up of a Nakka. One witness states that they left at 8 p.m., whereas the other one states that they had left at 8.30 a.m. There is also contradiction about the places they had visited prior to the setting up of a Nakka. These contradictions are not minor, as was so held by the lower Appellate Court. They are major and shake the very foundation of the prosecution case with regard to establishment of a Nakka. Prosecution is duty bound to establish its case beyond reasonable doubt. It has to prove that the entire contraband was country liquor. 12. IT is also seen that Constable Mahant Ram (PW-3) has contradicted his own version. He states that the sealed sample was deposited with the laboratory on 5.2.2011, whereas report Ex.PX records that the same was deposited on 7.2.2001. All this further renders the prosecution case to be highly doubtful. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, creditworthy, reliable and independent piece of evidence. Conviction by the Courts below has resulted into miscarriage of justice. 13. HENCE, for all the aforesaid reasons, present revision petition is allowed. Judgment passed by the trial Court as affirmed by the lower Appellate Court stands set aside and the accused is acquitted of all the charges. Personal and surety bonds furnished by the accused are discharged. Revision petition stands disposed of, so also the pending application, if any.