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2017 DIGILAW 615 (HP)

State of H. P. v. Ajay Kumar

2017-05-29

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Instant criminal appeal filed under Section 378 of the Cr.PC, is directed against the judgment of acquittal dated 10.7.2008, passed by the learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, H.P., in case No. 6/III/2005, whereby the respondent-accused has been acquitted of the charge framed against him under Section 61(1) (a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh (in short “the Act”). 2. Briefly stated facts as emerge from the record are that on 3.8.2004, at around 10:00 pm, ASI Manohar Lal along with HC Kashmir Singh, C. Vinod Kumar and C. Hoshiyar Singh intercepted Mahindra Jeep bearing No. PB-08-AD-9983 at a place called Brarta. The aforesaid Jeep was searched by the police and eight boxes of country liquor Patiala and seven boxes of country liquor Una No.1, were taken into possession. As per the story of prosecution, each box was containing twelve bottles of liquor and in total 180 bottles were recovered from the jeep. After effecting aforesaid recovery, one bottle out of eight boxes of country liquor Patiala and one bottle out of seven boxes of country liquor Una No.1 were taken as sample for chemical analysis and thereafter property was sealed at the spot. Subsequent to aforesaid recovery, rukka Ext.PW4/C was sent to the Police Station, on the basis of which, FIR Ext.PW3/A came to be registered. Police after investigation of case, presented challan in the competent court of law. 3. Learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, H.P., on being satisfied that prima-facie case exists against the accused, charged them under Section 61(1) (a) of the Act, to which they pleaded not guilty and claimed trial. Subsequently, the learned trial Court on the basis of material adduced on record acquitted the accused-respondents of the offence supra. In the aforesaid background, present criminal appeal has been filed by the State against the acquittal of the respondents-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. 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 impugned judgment suggests that the 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 180 bottles of country liquor were recovered from the conscious possession of the accused, who were admittedly sitting in the jeep at the time of the recovery. With the aforesaid submissions, Mr. Chauhan, contended that the respondents-accused deserve to be convicted after setting aside the judgment of acquittal recorded by the court below. 5. Mr. Sandeep Chauhan, learned counsel representing the respondents–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 and 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. Sandeep, learned counsel, argued that none of the prosecution witness supported the case of the prosecution, rather all the so called eye witnesses stated nothing with regard to the alleged recovery effected from the conscious possession of the respondent–accused. Mr. Sandeep, Advocate, invited attention for this Court to the statement of PW2 Nitesh Kumar, in whose presence, liquor was allegedly recovered from the accused, to demonstrate that prosecution miserably failed to prove the recovery of the liquor from the spot. Learned counsel for the accused further contended that another eye witness Rakesh Kumar was not examined. Lastly, Mr. Mr. Sandeep, Advocate, invited attention for this Court to the statement of PW2 Nitesh Kumar, in whose presence, liquor was allegedly recovered from the accused, to demonstrate that prosecution miserably failed to prove the recovery of the liquor from the spot. Learned counsel for the accused further contended that another eye witness Rakesh Kumar was not examined. Lastly, Mr. Sandeep Chauhan, contended that if the story put forth by the prosecution is believed that 180 bottles were recovered, no conviction, if any, could be recorded against the petitioner accused, solely for the reason that only two bottles each out of eight boxes of country liquor Patiala and seven boxes of country liquor Una No.1 were sent for the chemical examination. While placing reliance upon the judgment passed by this Court learned counsel stated that since two bottles were sent for chemical analysis, only two bottles are proved to be recovered from the possession of the accused. In the aforesaid background, Mr. Sandeep prayed for dismissal of the instant appeal being devoid of any merit. 6. I have heard the learned counsel for the parties and carefully gone through the record. 7. While hearing the arguments having been made by the learned counsel for the parties, this Court had an occasion to peruse the impugned judgment as well as evidence led on record by the prosecution, perusal whereof certainly not suggests that prosecution was able to prove its case beyond reasonable doubt, rather, this Court after having gone through the statements having been made by the prosecution witnesses has no hesitation to conclude that recovery of liquor from the accused was not proved and as such, there is no illegality and infirmity in the judgment passed by the learned trial Court below. 8. In the instant case, prosecution with a view to prove its case examined as many as five witnesses. PW1 Constable Vinod Kumar stated that he had taken samples to CTL Kandhaghat, which were handed over to him by MHC, Rameshwar Das. Aforesaid factum with regard to sending samples to the CTL has been duly corroborated by MHC Rameshwar Dass PW3 but in his cross examination, PW3 categorically stated that no seal impression was found on the case property, whereas in rukka Ext.PW4/C, it has been specifically mentioned that the case property was sealed at the spot with seal impression “H”. Aforesaid factum with regard to sending samples to the CTL has been duly corroborated by MHC Rameshwar Dass PW3 but in his cross examination, PW3 categorically stated that no seal impression was found on the case property, whereas in rukka Ext.PW4/C, it has been specifically mentioned that the case property was sealed at the spot with seal impression “H”. Hence, it creates doubt with regard to the recovery and thereafter sealing of property. 9. PW2 Nitesh Kumar is an independent witness, who was associated as witness when he was coming on a scooter. But perusal of his statement nowhere supports the version put forth by the prosecution. He stated nothing with regard to the recovery, if any, of the liquor from the accused in his presence, rather in his cross examination, PW2 admitted that he saw accused for the first time in the Court. Interestingly, another witness of spot Rakesh Kumar has not been examined and as such, prosecution was not able to prove recovery from the accused. PW2 in his cross-examination also stated that liquor was that of liquor vendors 10. PW5 Inspector Hari Ram is formal witness and as such, his statement may not be relevant as far as adjudication of the present case is concerned. 11. ASI PW4 Manohar Lal (I.O.) though in his statement stated that vehicle of the accused was searched in front of independent witnesses but since PW2 Nitesh Kumar has not corroborated this fact, no reliance if any, could be placed on the statement of PW4. 12. Though , this Court after having carefully perused the evidence led on record by the prosecution sees no reason to differ with the finding recorded by the trial Court that prosecution failed to prove its case beyond reasonable doubt but even otherwise also, entire recovery as allegedly effected by the police stands vitiated on account of the fact that only two bottles out of the total alleged recovery from the accused were sent for chemical analysis and as such, there is recovery of only two bottles, which is admittedly within the permissible limits. 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 2013 (2) 865, which reads as under:- “26. 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 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. 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. 13. 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. 13. 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 noncompliance 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.” 14. 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.