JUDGMENT : Sandeep Sharma, J. The present criminal revision petition filed under Section 397 Cr.PC read with Sections 401 & 482 Cr.PC, is directed against the order dated 31.12.2008, passed by the learned Additional Sessions Judge, Shimla, HP, in case No. 40-S/10 of 2007, titled “State of Himachal Pradesh v. Naresh Kumar”, affirming the judgment of acquittal dated 21.7.2007, passed by the learned Judicial Magistrate, Ist Class, Theog, District, Shimla, HP, in case No. 107-3 of 2006 titled “State of Himachal Pradesh v. Naresh Kumar,” whereby accused-respondent herein, has been acquitted of the charges for the offence punishable under Section 61 (1) (a) of the Punjab Excise Act, 1914, (In short “the Act”), as applicable to the State of Himachal Pradesh. 2. In nutshell, case of the prosecution is that on 4.3.2006, HC Balbir Singh, PW-7, Constable Mahinder Singh PW-1, and other police officials, had laid Naka at Gumma-Baghi bifurcation road and at around 12:45am (midnight), Maruti Car bearing No. HP- 09A-1283 came from Chhaila to Kotkhai side. On checking of the aforesaid car, four boxes of English liquor mark ‘Bagpiper’ containing twelve bottles in each box were recovered. As per prosecution story, out of the bulk, one bottle from each box was withdrawn as sample and thereafter sealed with seal having impression ’K’ and the bulk and the samples were taken into possession vide memo Ext.PW.1/A. The sample of the seal was also taken on white cloth Ext.PW-1/E. Thereafter, Ruka Ext.PW-7/B, was sent to the Police Station, on the basis of the same, FIR Ext.PW-5/A was lodged/registered against the respondent accused. Spot map Ext.PW-7/C was prepared during the course of the investigation and vehicle was taken into possession, vide memo Ext.PW-2/A, alongwith its documents. Vide Memo Ext.PW- 6/A, documents were handed over to Balibir Singh on sapurdari. The samples were sent to CTL, Kandaghat for obtaining the opinion of Chemical Examiner and the opinion Ext.PZ was obtained. Police also recorded the versions of witnesses under Section 161 Cr.PC. After completion of investigation, challan was put up in the competent court of law recommending the trial of the respondent-accused. The court of learned Judicial Magistrate, Ist Class, Theog, charged the accused under Section 61 (1) (a) of the Act to which the accused pleaded not guilty and claimed trial. 3. In the present case, prosecution with a view to prove its case examined as many as seven witnesses. The court of learned Judicial Magistrate, Ist Class, Theog, charged the accused under Section 61 (1) (a) of the Act to which the accused pleaded not guilty and claimed trial. 3. In the present case, prosecution with a view to prove its case examined as many as seven witnesses. Statement of accused under Section 313 Cr.PC was also recorded, wherein he stated that he has been falsely implicated. However, he did not lead any evidence in his defence. Learned trial Court after appreciating the material on record vide judgment dated 21.7.2007, acquitted the accused for the offence committed under Section 61 (1) (a) of the Act. 4. Feeling aggrieved and dissatisfied with the judgment of acquittal of learned trial Court, petitioner herein- State, filed an appeal under Section 378 Cr.PC, before the learned Additional Sessions Judge, FTC, Shimla, HP, whereby the same was dismissed being non-maintainable. Hence, the present criminal revision petition. 5. Since the appeal filed by the petitioner-Sate was dismissed being not maintainable before the appellate Court, it would be proper to deal with the question of maintainability at the first instance before adverting to the merits of the impugned order. In para-3 of the order dated 31.12.2008, learned Additional Sessions Judge, has noted that “Learned PP fairly conceded at bar that if a person is carrying/transporting 10 bottles of Indian made Foreign Liquor of 750 ml. each i.e. beyond the permissible limit of two bottles, the said offence is bailable.” In the present case, as per prosecution story, though they had recovered four foxes of Indian Liquor mark Bagpiper containing twelve bottles in each box but admittedly, as per case of the prosecution, out of bulk, one bottle from each box was withdrawn as sample, meaning thereby, only four samples of four bottles out of four boxes were withdrawn and sent for medical examination. The learned Additional Sessions Judge, has taken note of the judgment passed by this Court in State of HP v. Jagjit Singh, Latest HLJ 2008 (HP) 919 wherein this Court has observed in paras 6 and 7 as under:- “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.” 6. Careful reading of the judgment (supra) suggests that before convicting the accused for the offences in which, he has been charged, it was incumbent upon the prosecution to prove that respondent-accused, was in actual and conscious possession of the licit liquor in excess of the prescribed limited. Since in that case (supra), 71 pouches were alleged to have been recovered from the accused but only one pouch was retained as sample and sent for opinion of Chemical Analyst, the Hon’ble Court came to the conclusion that prosecution could only prove that the respondent-accused was in possession of one pouch of 180 ml. of country liquor in his possession, which is not an offence. 7. The learned Additional Sessions Judge, applying the ratio of the judgment (supra) came to the conclusion that only four bottles out of four boxes were sent for chemical analysis, meaning thereby that accused was carrying liquor beyond permissible limit. if the story of prosecution is taken to be correct on its face value, recovery of four bottles is required to be taken into consideration not forty eight. Admittedly, in view of the recovery of four bottles, accused may be considered carrying two bottles beyond permissible limit. Hence, present offence is bailable. In bailable offence, no appeal is maintainable under Section 378 (1) (a), which section provides as under:- 378. Admittedly, in view of the recovery of four bottles, accused may be considered carrying two bottles beyond permissible limit. Hence, present offence is bailable. In bailable offence, no appeal is maintainable under Section 378 (1) (a), which section provides as under:- 378. Appeal in case of acquittal- (1) Save as otherwise provided in Sub-Section (2), and subject to the provisions of Sub-Sections (3) and (5),-- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (2). If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of Sub-Section (3), also direct the Public Prosecutor to present an appeal— (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision]. 8. Careful reading of clause 1(a) indicates that appeal, if any, to the Court of Sessions, would lie against the order of acquittal passed by magistrate in respect of cognizable and nonbailable offence. In the present case, as has been discussed above, where recovery of four bottles has been proved; which fact has been rather conceded by learned PP before the court of learned Additional Sessions Judge and as such, it has been rightly concluded that appeal is not maintainable before that Court in view of the facts and circumstances as narrated herein above. 9. Mr. 9. Mr. Rupinder Singh Thakur, learned Additional Advocate General, stated that finding of the learned Additional Sessions Judge as far as on maintainability is concerned, is not sustainable, especially, in view of the fact that admittedly, in the present case, four boxes of liquor (total 48 bottles out of four boxes) were recovered from the car of the accused and out of each box, one bottle each was sent for sample purposes. As per him, sending of one bottle from each box was sufficient to ascertain the contents of other bottles recovered from the four boxes. Hence, finding of the learned appellate Court to the effect that appeal is not maintainable, is not sustainable and same deserves to be quashed and set-aside. Though, it clearly emerges from the records available that four bottles one from each of four recovered boxes were sent for chemical analysis, which fact was fairly conceded by learned PP before the learned appellate Court but solely with a view to examine the submissions made by Mr. Thakur, learned Additional Advocate General that the samples withdrawn by the police at the time of recovery, one each from four boxes, was sufficient to ascertain the quantity of liquor, this Court undertook an exercise to examine the entire case on merit also. 10. While exercising its revisionary jurisdiction, this Court has very limited powers under Section 397 Cr.PC to re-appreciate the evidence available on record to look into the entire matter, as has been observed above but in the interest of justice, this Court critically examined the statements of the prosecution witnesses with a sole view to ascertain that the judgments passed by learned courts below are not perverse and the same are based on correct appreciation of the evidence on record. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is 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 or sentence or order. The relevant para of the judgment is reproduced as under:- 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or 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.” 11. I have heard learned counsel for the parties as well carefully gone through the record. 12. In the present case, where, as per prosecution story, four boxes of English Liquor mark Bagpiper containing 48 bottles, were recovered from the Car of the accused. One bottle from each boxes (i.e. four bottles) were withdrawn as samples and thereafter, sealed with seal having impression ‘K’. Bulk and the samples were also taken into possession vide recovery memo Ext.PW-1/A. Sample of the seal was also taken on white paper as Ex.PW-1/E but careful reading of the statements given by the prosecution witnesses, especially, PW-1 and PW-2, who are the eye witnesses of recovery memo Ext.PW-1/A at the time of recovery stated that on 4.3.2006, they had proceeded in Government vehicle at Gumma Baghi bifurcation road and laid Naka there. They also deposed in their cross-examination that vehicle was searched and four boxes of English liquor Mark ‘Bagpiper’ were recovered but in his cross-examination, he admitted that on the recovered boxes of liquor, there is no tag of FIR and these boxes were not sealed. It is also admitted that behind Gumma Baghi link road, there is a Gumma market, where there are many shops and residential area, however, there is no sufficient explanation rendered that why independent witnesses were not associated at the time of recovery. It is also admitted that behind Gumma Baghi link road, there is a Gumma market, where there are many shops and residential area, however, there is no sufficient explanation rendered that why independent witnesses were not associated at the time of recovery. However, as per case of prosecution, since recovery was effected at 12:45am, it was not possible to associate independent witnesses at that juncture. PW-2 Ramesh Chand, HHC No. 239 also stated that on 4.3.2006 he alongwith Mahinder Singh and HC Balbir Singh laid a Naka at Gumma Baghi bifurcation at about 12:45 am (midnight), then a Maruti Car came from Chhaila side and on interception, four boxes of English liquor mark ‘Bagpiper’ were taken into possession by the police. He also stated that one bottle from each boxes was withdrawn as sample and thereafter sealed with seal having impression ‘K’. He in his cross-examination stated that seal having impression ‘K’ after its use was handed over to him but he has not brought the seal, rather, he stated that he cannot produce the seal before the Court. He also admitted in his crossexamination that neither there is any seal on the box, nor on bottles Exts.P-1 to P-44. He also admitted that there is no tag of the FIR on the boxes. 13. PW-3 C. Surinder Singh, driver of the vehicle in which police officials had visited the spot also supported the story of the prosecution as well as alleged recovery of liquor concerned and stated that aforementioned car was taken into possession vide memoExt.PW-1/A. He also reiterated the story put forth by the aforesaid prosecution witnesses with regard to the withdrawing of sample from the each boxes and sending of the same with impression ‘K. He also stated that seal after use was handed over to HC Ramesh Chand but in his cross-examination, he stated that seal having impression ‘K’ after its use was handed over to him but PW-2 stated before the court that he has not brought the seal, rather, he stated that he cannot produce the seal in the Court. PW-3 also stated that boxes of liquor are not sealed and there is no seal in the bottles Ext.P-1 to P-44. He also admitted that there is no tag of FIR on the boxes allegedly recovered from the Car of the accused. PW-3 also stated that boxes of liquor are not sealed and there is no seal in the bottles Ext.P-1 to P-44. He also admitted that there is no tag of FIR on the boxes allegedly recovered from the Car of the accused. Even PW-7 Investigating Officer also admitted in the cross-examination that there is no seal nor any tag of FIR on the case property i.e. four boxes of liquor. It has also come in his statement that there is seal Mark ‘K’ in Exts.P-1 to P-44. Combined reading of all the prosecution witnesses, as has been observed herein above, suggest that no number of FIR was put/tagged on the four boxes allegedly recovered from the car, which fact clearly makes the story of recovery doubtful, moreover, it also emerges from the statement of prosecution witnesses as has been discussed above that boxes of the liquor were not sealed and admittedly, there is no seal on the bottles of liquor allegedly recovered from the conscious possession of the accused. Story of prosecution with regard to sealing of the sample is also doubtful, especially, in view of the statements of PW-2 and PW-3. PW-2 though stated that seal having impression ‘K’ after its use was handed over to him but he has not brought the seal, rather, he cannot produce the same before the Court. This very admission on the part of PW-2 has rendered the story of prosecution unreliable and untrustworthy. This aforesaid omission on the part of the police not to seal case property at the time of alleged recovery is not a minor discrepancy, rather, it has vitiated the entire recovery, if any. In the present case, as has been mentioned earlier, that police had withdrawn four bottles (one each from every box for sample) which were sent for chemical analysis but as has emerged from the statement of PWs-2 and 3 that no seal, whatsoever, was produced in the Court; aforesaid glaring discrepancy has rendered the story of withdrawing samples by police after recovery unreliable and cannot be relied upon in the totality of the facts and circumstances. It clearly emerges that prosecution in the present case has miserably failed to prove the recovery of the liquor from the conscious possession of the accused. It clearly emerges that prosecution in the present case has miserably failed to prove the recovery of the liquor from the conscious possession of the accused. All the material prosecution witnesses have unequivocally admitted the fact that there is no seal on the case property nor there is any tag of FIR coupled with the fact that the “seal” with which allegedly case property was sealed, was not produced in the Court. Non-production of seal in the Court has rendered the story of prosecution doubtful and untrustworthy. 14. In this regard, reliance is placed on judgment rendered by the Hon’ble Apex Court in State of Rajasthan v. Gopal, 1998 (8) SCC 499 , relevant paras of the aforesaid judgments is reproduced herein below: “2. In passing the order of acquittal, the High Court has noted that the seizure of the narcotic substance was doubtful because the seal on the sample sent for chemical analysis could not be compared with the seal on the seized article kept in the Police Malkhana because the seal on the sample sent to analyst could not be produced in the Court for verification. Even the seal which was put on the seized article kept in the Police Malkhana could not be ascertained excepting the word “Ajmer”. It may be stated here that since the said article had been seized on the railway platform according to the prosecution case, the seal of the Stationmaster had been used, but the Stationmaster was not examined to prove whether the seal put on the sized article and kept in the Police Malkhana really contained the seal of the Stationmaster.” 15. Reliance is also placed on judgment passed by our own High Court in Nanha v. State of H.P., Latest HLJ 2011 (HP) 1195. Paras No. 7 to 9 are extracted herein below:- “7. Adverting to the points urged by learned counsel appearing for the appellant that the seal used has not been produced in court, we note that this Court in Criminal Appeal No. 308 of 1996, decided on October 21, 2009, State of H.P V. Tek Chand, reported in Latest HLJ 2010(HP)497,Holds- “9 PW1 Hukam Chand , MHC, with whom the case property was deposited by PW 4 Ravinder Singh, also did not say that any specimen seal impression has been deposited along with parcel containing the samples and the bulk Charas. It is only PW2 HC Raj Sigh , who took over the charge of MHC from PW1 Hukam Chand, who stated that he sent one of the two samples along with sample seals to the Chemical Examiner, through Constable Mani Ram. Mani Ram who was examined as PW3, did not say that any specimen seal impressions were also carried by him along with the sample. He simply stated that he carried one sealed parcel which was handed over to him PW2 HC Raj Singh. On the docket with which the sample was sent to the Chemical Examiner i.e. Ext.PC, facsimiles of the seals used in sealing the parcels are not there. That means specimen impressions of the seals used in sealing the sample parcels, which was sent to the laboratory, were not available with the Chemical Examiner, for comparison with the seal impressions on the parcel containing sample . Therefore , the report Ext. PC cannot be said to have been sufficiently linked with the samples allegedly separated from the recovered stuff. 8. Adverting to the facts on record, we find from Ext. PW-8 /A that the facsimile of the seal not having been affixed on this document. Further we also note that PW- 5 Constable Yoginder Singh states; “………All the parcels were sealed with seal ‘D’ initially. The seal ‘S’ was made of some metal. The seal has not been brought by me today as the same has been lost. No report qua missing of the seal was lodged by me with anyone. 9. The seal was in possession of the prosecution as established form the evidence of PW-7 Constable Ramesh Kumar, who says that he had deposited this in the Kandaghat Laboratory. What happened to the seal after that is not clear neither it is clear as to why the facsimile is not affixed on the NCB form.” 16. Consequently in view of the aforesaid discussion, this Court does not see any reason to interfere with the judgment of acquittal passed by the learned trial Court, which was correctly affirmed / upheld by learned Additional Sessions Judge. Apart from above, finding of the appellate Court is also correct that appeal to the court of sessions could only lie from an order of acquittal passed by magistrate in respect of cognizable and nonbailable offences. 17. Apart from above, finding of the appellate Court is also correct that appeal to the court of sessions could only lie from an order of acquittal passed by magistrate in respect of cognizable and nonbailable offences. 17. In the present case, admittedly, four bottles, one each from the four boxes were sent for chemical examination, meaning thereby, there was only effective recovery of four bottles out of 48 bottles and accused could be considered carrying two bottles beyond permissible limit, which was admittedly bailable offence. Hence, judgments passed by the courts below are upheld as they are based upon correct appreciation of evidence available on record and the appeal stands dismissed. Pending applications are disposed of, if any.