JUDGMENT : Sandeep Sharma, J. 1. Instant criminal appeal filed under Section 378 (3) of the Cr.PC, is directed against the judgment of acquittal dated 30.7.2008, passed by the learned Chief Judicial Magistrate, Solan, District Solan, H.P., in criminal case No. 206/3 of 2004, whereby the respondent-accused has been acquitted of the charge framed against him under Section 61(1) (a) of the Punjab Excise Act (in short “the Act”)(as applicable to the State of Himachal Pradesh). 2. Briefly stated facts as emerge from the record are that on 31.3.2004, at around 10:45 p.m., ASI Rattan Chand along with Constable Jaswant Singh (PW4), received secrete information that some person was coming from Deonghat carrying box. Accordingly, PW3 Het Ram and PW5 Puran Singh, went towards the Deonghat on patrolling. After seeing the police party, accused became nervous and tried to run away but was apprehended. As per prosecution, one box was found from the possession of the accused, wherein nine pouches of country liquor mark “Hero No.1” each containing 750 ml each were found without having any permit. As per own case of the prosecution, I.O. after the alleged recovery, took three pouches for sample and sealed the case property with seal impression ‘A’ and the seal was handed over to witness Puran Singh vide memo Ext.PW3/A. I.O. prepared rukka Ext.PW8/A and sent the same to the Police Station, on the basis of which, FIR Ext.PW7/A came to be registered. Police after investigation of case, presented challan in the competent court of law. 3. Learned Chief Judicial Magistrate, Solan, District Solan, H.P., on being satisfied that prima-facie case exists against the accused charged him under Section 61(1) (a) of the Act (as applied to the State), to which he pleaded not guilty and claimed trial. Subsequently, the learned trial Court on the basis of material adduced on record acquitted the accused-respondent of the offence supra. In the aforesaid background, present criminal appeal has been filed by the State against the acquittal of the respondent-accused before this Court. 4. Mr. M.L. Chauhan, learned Additional Advocate General duly assisted by Mr. Subsequently, the learned trial Court on the basis of material adduced on record acquitted the accused-respondent of the offence supra. In the aforesaid background, present criminal appeal has been filed by the State against the acquittal of the respondent-accused before this Court. 4. Mr. M.L. Chauhan, learned Additional Advocate General duly assisted by Mr. Ramesh Thakur, learned Deputy Advocate General, vehemently argued that the impugned judgment of acquittal having been passed by the learned court below 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. While referring to the impugned judgment passed by the court below, Mr. Chauhan, contended that bare perusal of the same suggests that learned court below has not appreciated the evidence in its right perspective as a result of which, erroneous findings have come on record. Mr. Chauhan, while inviting attention of this Court to the evidence led on record by the prosecution stated that prosecution proved its case beyond reasonable doubt that respondent-accused was apprehended carrying nine pouches of country liquor (Hero No.1) without any permit and as such, accused was liable to be punished by the learned trial Court. Mr. Chauhan, further contended that both the independent witnesses, who were allegedly associated at the time of alleged recovery, supported the case of the prosecution and as such, there was no occasion whatsoever, for the learned trial Court below to acquit the accused under Section 61 (1) (a) of the Punjab Excise Act. In the aforesaid background, Mr. Chauhan, contended that the respondent accused deserves to be convicted after setting aside the judgment of acquittal recorded by the court below. 5. Mr. J.S. Bagga, learned counsel representing the respondent – accused supported the impugned judgment of acquittal. He while inviting attention of this Court to the impugned judgment of acquittal passed by the learned trial Court below strenuously argued that there is no illegality and infirmity in the same as the same is based upon the correct appreciation of the evidence available on record. With a view to refute the aforesaid contentions having been made by the learned Additional Advocate General, Mr. With a view to refute the aforesaid contentions having been made by the learned Additional Advocate General, Mr. Bagga, made this Court to travel through the statements of PWs 4 and 5 i.e. so called independent witnesses, to demonstrate that none of the witnesses were able to identify the accused in the Court, rather version having been put forth by them clearly belies the story of the prosecution and as such, there is no illegality and infirmity in the judgment passed by the court below and same deserves to be upheld. 6. I have heard the learned counsel for the parties and carefully gone through the record. 7. This Court after having carefully perused the impugned judgment of acquittal passed by the learned trial Court sees no force much less substantial in the arguments of learned Additional Advocate General that there is complete misreading, mis-appreciation and mis-construction of evidence rather, this Court after having gone through the evidence led on record by the proseuciton, has no hesitation to conclude that court below has dealt with each and every aspect of the matter very meticulously and there is no illegality and infirmity in the impugned judgment of acquittal and as such, same deserves to be upheld. 8. In the instant case, prosecution with a view to prove its case, examined as many as eight witnesses, whereas respondent-accused in his statement recorded under Section 313 Cr.PC denied the case of the prosecution in toto and specifically stated that all eye witnesses associated at the time of alleged recovery are interested witnesses and as such, version put forth by them could not be believed. However fact remains that he did not lead any evidence in support of his claim. 9. PW3 Het Ram i.e. alleged spot witnesses, stated that when he reached near Congress Bhawan, he met police and at that time, one person carrying white gunny bag was apprehended by the police and he was found carrying nine pouches of Hero No.1. He further stated that after alleged recovery of liquor, police took three pouches as sample and sealed remaining case property vide seizure memo Ext.PW3/A. But fact remains that aforesaid witnesses failed to identify the accused in the Court and also stated that bag is Ext.P1 and pouches are Ext.P2 to Ext.P7 and as such, he was declared hostile. He further stated that after alleged recovery of liquor, police took three pouches as sample and sealed remaining case property vide seizure memo Ext.PW3/A. But fact remains that aforesaid witnesses failed to identify the accused in the Court and also stated that bag is Ext.P1 and pouches are Ext.P2 to Ext.P7 and as such, he was declared hostile. However in his cross examination, he admitted that person apprehended by the police was named as Ram Lal, but he specifically denied that accused was the same Ram Lal. Similarly in his cross – examination, he failed to tell whether it was day time or night, rather, it has come in his statement that at that relevant time, 3-4 persons were available at the spot. He further stated that police told the name of the person as Ram Lal but he was unable to tell from whom, the liquor was allegedly recovered. 10. Another so called spot witness namely PW5 Puran Chand also not supported the case of the prosecution. PW5 though stated that at that relevant time, he was present near Congress Bhawan, where a person coming from Deonghat side was apprehended by the police but he also failed to state specifically that accused namely Ram Lal was apprehended. PW5 further stated that after seeing police, he became nervous and made an attempt to run away. He further stated that police seized nine pouches from the possession of person namely Ram Lal, out of which, three pouches were taken as sample as per seizure memo Ext.PW3/A. In his cross-examination, he stated that he was working in Pine Groove Hotel Parwanoo and he knew the accused as he was working in Wind More Hotel, Parwanoo. He like PW3 also stated that at that relevant time 2-3 other persons were present with the police at the spot. Most importantly, it has come in his statement that he was called on the spot by Constable Jaswant. PW5 further stated that when he reached the spot ASI was holding a bag. This witness was unable to tell the name of person present on the spot with the police. Interestingly, PW5 in his statement stated that when he reached the spot, I.O. showed him three pouches and liquor was taken out form three pouches and sealed the same on the spot and he signed the seizure memo. This witness was unable to tell the name of person present on the spot with the police. Interestingly, PW5 in his statement stated that when he reached the spot, I.O. showed him three pouches and liquor was taken out form three pouches and sealed the same on the spot and he signed the seizure memo. He also stated that he sent the memo around 10:30-11:00 o’clock. Thereafter he went away with police with the case property to the police station, however, he denied that he was deposing falsely. 11. PW4 Constable Jaswant, who was member of the raiding party. also corroborated the version put forth by PW5. He stated that I.O. had received secrete information that the accused was coming from Deonghat carrying liquor and thereafter, the accused was apprehended. He also stated that he met Het Ram and Puran Singh (independent witness) at the spot. He also supported the version put forth by the prosecution that the accused was carrying nine pouches of country liquor mark “Hero No. 1”, which was subsequently impounded by the I.O. In his cross examination, PW4 admitted that the accused was apprehended near Congress Bhawan. PW4 also stated that they met independent witnesses near Dohri Deewar and they remained at the spot from 10:45 to 11:30 pm and thereafter, he took the rukka to the Police Station and returned to the spot at around 12:00am with the independent witnesses. 12. Conjoint reading of aforesaid prosecution witnesses, who were the spot witnesses, nowhere proves the case of the prosecution, rather, from the statement having been made by these witnesses, if read juxtaposing each other, it can be safely inferred that there are material contradictions with regard to the timing, spot as well as association of independent witnesses by the raiding team allegedly constituted by PW8 ASI Rattan Chand. 13. PW8 ASI Rattan Chand while making an attempt to prove the case of the prosecution stated that when he was on patrolling at Dohri Deewar on 31.3.2004, he received secrete information around 10:40 pm, that one person was carrying box of liquor. 13. PW8 ASI Rattan Chand while making an attempt to prove the case of the prosecution stated that when he was on patrolling at Dohri Deewar on 31.3.2004, he received secrete information around 10:40 pm, that one person was carrying box of liquor. Subsequently, he went towards the Congress Bhawan along with members of raiding party including the alleged independent witnesses, but interestingly, both the independent witnesses (PW3 and 5) nowhere stated that they were associated by I.O, as members of raiding team after having received secrete information, rather both the prosecution witnesses stated that they met police officials near congress Bhawan. (PW3) Het Ram though supported the case of the prosecution that when they reached near Congress Bhawan, one person carrying white gunny bag was apprehended by the police and he was found carrying nine pouches of country made liquor mark Hero No. 1, but he failed to identify the accused. Rather in his cross exanimation, he admitted that person apprehended by the police was named as Ram Lal but accused was not the same Ram Lal, who was apprehended by the police at the time of alleged occurrence. PW3 further stated that at that relevant time, 3-4 persons were also present on the spot and police told the name of person as Ram Lal. 14. In nutshell case of the prosecution is that accused was apprehended in the presence of PW3 and PW5 i.e. so called independent witness but as has been discussed above, PW3 Het Ram has not supported the case of the prosecution and he was declared hostile as he failed to identify the accused. Though, PW5 Puran Chand in his statement supported the version of the prosecution that liquor was recovered but he also stated that 3-4 other persons were also standing at the spot at the time of alleged recovery, whereas PW8 Rattan Chand in his statement stated that there was no other person present on the spot and only independent witnesses were joined by them. Hence, there is a material contradiction with regard to the presence of so called witnesses i.e. PW3 and PW5 at the time of the alleged occurrence. 15. Hence, there is a material contradiction with regard to the presence of so called witnesses i.e. PW3 and PW5 at the time of the alleged occurrence. 15. Similarly, there is no explanation, if any, on the part of I.O. as to why other 4-5 people, who were present on spot, were not associated at the time of alleged apprehension of the accused, which omission certainly creates doubt with regard to the genuineness and correctness of the story put forth by the prosecution. This court though after having carefully perused the statement of aforesaid material PWs sees no reason to differ with the finding returned by the learned trial Court that the prosecution was unable to prove its case beyond reasonable doubt but otherwise also, if for the sake of argument, it is presumed that the alleged liquor was recovered from the conscious possession of the respondent–accused, even then as per own case of the prosecution, only three pouches were sent for the chemical analysis, meaning thereby, recovery of only three pouches was effectively proved, which is definitely within the permissible limit and as such, no case is made out against the accused. At this stage, it would be profitable to refer to the judgment passed by this Court in case titled “Surender Singh. V. State of H.P.”, Latest HLJ 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. 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. 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.” 16. Reliance is also placed on the judgment passed by this Court 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. 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.” The aforesaid judgments clearly suggest that before convicting the accused for offence qua which, they were charged it was incumbent upon the prosecution to prove that they were in actual and conscious possession of the illicit liquor in excess of the prescribed limit. In the instant case, as emerged from the record that nine pouches were allegedly recovered from the conscious possession of the petitioner-accused but interestingly, only three pouches were retained as sample and sent for opinion of chemical analyst. Now, if action of police in sending only three pouches out of nine allegedly recovered pouches for chemical analysis/examination is tested in light of aforesaid judgments passed by the Co-ordinate Bench of this Court, it can be concluded that prosecution could only prove recovery of three pouches of country liquor from their possession, which is admittedly not an offence. 17. Consequently, in view of the detailed discussion made herein above as well as law referred herein above, this court sees no illegality and infirmity in the judgment passed by the learned court below, which appears to be based upon the proper appreciation of evidence adduced on record and as such, same is upheld. Accordingly, the present appeal is dismissed.