JUDGMENT : Sandeep Sharma, J. 1. Instant Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, is directed against the judgment of acquittal, dated 23.9.2008, passed by learned Judicial Magistrate, 1st Class, Court No.II, Hamirpur, District Hamirpur, H.P., in Excise Case No.12-III/2005, whereby the respondents (hereinafter referred to as the accused) have been acquitted of charges framed against them under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP (hereinafter referred to as Act). 2. Briefly stated facts as emerge from the record are that on 3.5.2005, ASI Gurdas along with HHC Karam Singh No.172 and HHC Santosh Kumar No.154 were on patrolling duty at Awha Devi Bazar. At about 12:45 AM while they were patrolling near Awha Devi Chowk, a vehicle bearing registration No.HP-22-A-0926 came on the spot, which was being driven by accused Suresh Kumar and other coaccused Ranjit Singh was sitting in the vehicle in question. As per the story of prosecution, the vehicle in question was searched in the presence of Ravinder Kumar(PW-6) and Lekh Ram(PW-1) and during search, three gunny bags containing 36 bottles of country made liquor of branded Lal Killa, whereas other two gunny bags containing 60 bottles of country made liquor branded Una No.1, were recovered. Since, the accused failed to produce permit or licence for transportation of liquor before the police, aforesaid bottles of country liquor were taken into custody/ possession by the police. After effecting recovery, three bottles of country made liquor Una No.1 were opened and one-one sample nips from each of the bottles were taken for chemical analysis. Similarly, three bottles of Lal Killa liquor were also opened and three samples were drawn, and thereafter the sample nips as well as bottles from which the samples were drawn were sealed with seal ‘K’ and were taken into possession. As per the story of prosecution, remaining 36 bottles of Lal Killa including three bottles from which the samples were drawn, were put in a gunny bag and sealed with seal ‘K’, whereas, other 60 bottles of country made liquor branded Una No.1 including three bottles from which the samples were drawn, were put into two gunny bags and sealed with seal ‘K’ and were taken into possession vide recovery memo Ex.PW5/B in the presence of witnesses Lekh Raj and Ravinder Kumar. After having aforesaid recovery, ruqua Ex.PW5/C was prepared and sent to police Station through HHC Karam Singh No.172, on the basis of which, FIR Ex.PW4/B came to be registered against the accused. The Investigating Officer prepared the spot map Ex.PW5/D and also recorded statements of the witnesses under Section 161 Cr.P.C as per their version. Police after completion of the investigation, presented the challan before the appropriate Court of law against the accused under Section 61(1)(a) of the Act. 3. The learned trial Court after satisfying itself that a prima facie case exist against the accused, framed the charge under Section 61(1)(a) of the Act, against the accused, to which they pleaded not guilty and claimed trial. 4. Subsequently, learned trial Court vide impugned judgment dated 23.9.2008, acquitted both the accused of charges framed against them under Section 61(1)(a) of the Act. In the aforesaid background, present appellant-State has filed instant appeal, praying therein for conviction of respondents-accused after setting aside the impugend judgment of acquittal recorded by the Court below. 5. Mr. M.L. Chauhan, learned Additional Advocate General, duly assisted by Mr. Ramesh Thakur, learned Deputy Advocate General, while inviting attention of this Court to the impugned judgment, vehemently argued that same is not sustainable in the eye of law as the same is not based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, same deserves to be quashed and set-aside. Mr. Chauhan, further contended that bare perusal of the impugned judgment passed by the learned trial court suggests that learned trial court has not appreciated the evidence in its right perspective, as a result of which, erroneous findings have come on record. To substantiate his aforesaid argument, Mr. Chauhan, made this court to travel through the evidence led on record by the prosecution to suggest that the prosecution has successfully proved on record that 36 bottles of country made liquor of branded Lal Killa and 60 bottles of country made liquor branded Una No.1 were recovered from the conscious possession of the accused, who admittedly at that relevant time was driving the vehicle bearing No. HP-22-A-0926. Mr. Mr. Chauhan, while referring to the provisions of Section 100(4) of Cr.P.C, contended that findings returned by the learned trial Court qua the same is erroneous because as per the provision contained in the aforesaid provision of law, two independent witnesses of the area were required to be associated by the police, who were admittedly associated by the police before carrying out the search of the vehicle being driven by the accused namely Suresh Kumar. With the aforesaid submissions, Mr. Chauhan, prayed that the impugned judgment of acquittal passed by the learned trial Court may be quashed and set aside and the present respondents-accused may be convicted for the offence punishable under Section 61(1)(a) of the Act. 6. Ms. Jamuna, learned counsel representing the respondents-accused supported the impugned judgment of acquittal passed by the learned trial Court and stated that there is no illegality and infirmity in the same as the same is based upon the correct appreciation of the evidence. Mr. Jamuna, further contended that there is no scope, Whats oever, of interference of this Court, especially in view of the fact that none of the prosecution witnesses supported the case of the prosecution. While refuting the aforesaid contentions having been made by learned Additional Advocate General, Ms. Jamuna, invited attention of this court to the statements having been made by so called independent witnesses PW-1, Lekh Ram and PW-6, Ravinder Kumar to demonstrate that both the prosecution witnesses turned hostile and they categorically stated before the court below that no recovery of liquor was effected in their presence. In the aforesaid background, learned counsel representing the respondents-accused prayed that the present appeal be dismissed being devoid of any merit. 7. I have heard learned counsel representing the parties and have carefully gone through the record made available. 8. In the aforesaid background, learned counsel representing the respondents-accused prayed that the present appeal be dismissed being devoid of any merit. 7. I have heard learned counsel representing the parties and have carefully gone through the record made available. 8. After having gone through the evidence adduced on record by the prosecution viz-a-viz impugned judgment of acquittal passed by the learned trial Court, this Court sees no force in the contentions of learned Additional Advocate General that there is total misreading and misappreciation of evidence adduced on record by the prosecution, rather this Court is fully convinced and satisfied that learned trial court while acquitting the respondents-accused has dealt with each and every aspect of the matter very meticulously and there is no illegality and infirmity in the judgment of acquittal passed by the learned trial Court and as such, same deserves to be upheld. 9. In the instant case, as per own case of the prosecution, vehicle being driven by the accused namely Suresh Kumar (respondent No.2) was searched by PW-5, Investigating Officer in the presence of independent witnesses namely Lekh Raj (PW-1) and Ravinder Kumar (PW-6) and during search, three gunny bags allegedly containing 36 bottles of country made liquor of branded Lal Killa and 60 bottles of country made liquor branded Una No.1 were recovered from the vehicle, which was being driven by the respondent-accused No.2. But interestingly, none of aforesaid so called eye witnesses supported the version put forth by the prosecution. PW-1, Lekh Raj, while appearing as PW-1 specifically stated that nothing has happened in his presence and no search was conducted in his presence. Aforesaid witness though turned hostile, but in his cross-examination conducted by learned APP, nothing could be extracted from him, from where it could be inferred that story put forth by the prosecution is trustworthy. In cross-examination, PW-1 categorically denied the recovery of liquor from the vehicle of the accused in his presence. He in his cross-examination stated that his house is situated at Sarkaghat. It has also come in his statement that there are 20-25 shops situated in Awhadevi. Similarly, it has also come in his cross-examination that neither he is related to the accused nor he is acquainted to them. 10. Another so called independent witness PW-6, Ravinder Kumar also not supported the case of the prosecution. It has also come in his statement that there are 20-25 shops situated in Awhadevi. Similarly, it has also come in his cross-examination that neither he is related to the accused nor he is acquainted to them. 10. Another so called independent witness PW-6, Ravinder Kumar also not supported the case of the prosecution. He specifically stated that neither the search was conducted nor anything was recovered from the possession of the accused. Cross-examination conducted of this witness by learned APP, nowhere suggest that the prosecution was able to extract anything contrary what he stated in his examination-in-chief. He categorically denied the suggestion put to him that vehicle of the accused was searched in his presence and three gunny bags containing liquor were recovered from the vehicle. He further denied that the samples were drawn and the same was sealed in his presence. Though, he admitted his signatures on recovery memo, but specifically denied the contents of the same. He further stated that he is resident of District Mandi and Awha Devi is in Hamirpur District. 11. This Court, after having carefully perused the version put forth by these so called independent witnesses, sees no substantial force in the arguments having been made by learned Additional Advocate General that prosecution proved its case beyond reasonable doubt, rather this Court after having gone through the version put forth by these prosecution witnesses, sees substantial force in the arguments of Mr. Jamuna, that none of the prosecution witnesses stated that liquor was recovered in their presence. Another arguments having been made by Mr. M.L. Chauhan, learned Additional Advocate General, that there has been total compliance of Section 100(4) of Cr.P.C., also deserve to be rejected out rightly in view of the candid admission having been made by aforesaid independent witnesses that they are not R/o village Awahdevi, rather they belong to District Mandi. As per Section 100(4) Cr.P.C, it is/was incumbent upon the Officer before making search to associate two or more independent and respectable inhabitant of the locality/place to be searched. 12. Apart from above, PW-5, investigation Officer while making an attempt to prove the story of the prosecution himself admitted that that are 40-50 shops in Awha Devi Bazar. As per Section 100(4) Cr.P.C, it is/was incumbent upon the Officer before making search to associate two or more independent and respectable inhabitant of the locality/place to be searched. 12. Apart from above, PW-5, investigation Officer while making an attempt to prove the story of the prosecution himself admitted that that are 40-50 shops in Awha Devi Bazar. He also stated that he has shown these shops and houses in the spot map, but he did not call any person from these houses and shops before conducting the search of the vehicle of the accused. It has specifically come in his cross-examination that he had not associated any local person of Awha Devi as witness. Though, this witness stated that after effecting recovery, samples were drawn and sent to CTL Kandaghat for chemical analysis, but since none of the independent witnesses allegedly associated by the Investigating Officer at the time of effecting recovery, supported the case of the prosecution, statements having been made by this witness is of no relevance. 13. Leaving everything aside, if for the sake of arguments, contention put forth by Mr. M.L. Chauhan, learned Additional Advocate General, that the prosecution successfully proved recovery of liquor in the presence of independent witnesses i.e. PW-1 and PW-6 is accepted, even then as per own case of the prosecution only six samples out of 96 bottles of liquor were sent for chemical analysis, meaning thereby recovery of only six bottles were proved and as such, only one bottle can be said to have been found beyond permissible limit. 14. In this regard reliance is placed upon the judgment passed by our own High Court in “Surender Singh. V. State of H.P.”, Latest HLJ 2013 (2) 865, which reads as under:- “26. In the instant case, it be also noticed that there is yet another major flaw in the investigation by the police. Assuming that the contraband was actually recovered by the police party, police did not take samples from all the boxes. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes 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. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes 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. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character. 27. In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, 2003 Cr.L.J. 1346; 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, acquitted the accused, as prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes. 28. As per version of PW-1, outside the boxes ‘Sirmour No.1’ was printed which version stands denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were in fact containing liquor. Quantity of the remaining bottles of the boxes from which samples were drawn has also not been proved to be liquor. 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, beyond reasonable doubt and as such judgments of the Courts below are not sustainable in law.” 15. Reliance is also placed on the judgment passed y this Court State of HP v. Jagjit Singh, Latest HLJ 008 (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. 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.” 16. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment passed by the learned trial Court, which appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld. Accordingly, the present appeal is dismissed, Along with pending applications, if any.