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2018 DIGILAW 1232 (HP)

State of H. P. v. Shukardeen

2018-07-06

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed, against, the verdict, pronounced on 25.2.2010, by the learned Judicial Magistrate, 1st Class, Nalagarh, District Solan, H.P. in Criminal Case No. 114/3 of 2006, whereby, he acquitted, the accused for his allegedly committing, an offence punishable under Sections 61(i)(a) of the Punjab Excise Act, as applicable, to the State of Himachal Pradesh. 2. The facts relevant to decide the instant case are that on 23.1.2005, complainant ASI Dharam Dass along with HC Neelam Kumar No. 193, C-Santosh Singh No. 343 and Constable Pal singh No. 586 was present at Ramshehar Chowk on patrolling duty and traffic checking. At about 3.15 P.M., one Bolero Utility bearing HP-12A-5434 came from the side of Nalagarh which was stopped for checking and the driver of the aforesaid Bolero told his name as Shukardeen, son of Shri Kalu Ram, resident of Mastanpura. The aforesaid vehicle was checked in the presence of witnesses Gurbax and Praveen Kumar and on checking 10 crates, each crate containing 12 bottles of 750 M.L each (120 bottles) and 5 crates and one crate containing 24 bottles (half) of 375 M.L each i.e. 120 bottles half of country liquor Lal Quila were recovered. The accused person could not produce any licence or permit for carrying the same. The police took 5 bottles as samples from 5 crates and three half from three crates out of other 5 crates the samples as well as recovered liquor was sealed with seal impression Tand seal after use was handed over to witness Gurbax. Rukka Ext. PW1/B was sent to P.S. Nalagarh through constable Santosh Kumar which bears endorsement Ext. PW4/A on the basis of which FIR Ext. PW4/B was registered at P.S. Nalagarh. The matter was handed over for investigation to ASI Dharam Dass, who took into possession the vehicle bearing No. HP-12-5434 along with 15 crates containing 120 bottles and 120 bottles half vide memo Ext. PW1/A and also prepared spot map Ext. PW1/C. The sample nips were sent to CTL Kandaghat for analysis and report of Chemical Examiner were obtained. Statements of the witnesses under Section 161 Cr.P.C. were recorded as per their version. 3. On conclusion of investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed before the learned trial Court. 4. Statements of the witnesses under Section 161 Cr.P.C. were recorded as per their version. 3. On conclusion of investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed before the learned trial Court. 4. The accused, stood charged, by the learned trial Court, for his committing offences punishable, under Sections 61(i)(a) of the Act. In proof of the prosecution case, the prosecution examined 7 witnesses. On conclusion of recording of prosecution evidence, the statement, of the accused, under Section 313, of, the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal qua, the, accused/respondents herein. 6. The State of H.P., stands aggrieved, by the judgment of acquittal, recorded, qua the accused/respondent. The learned Additional Advocate General appearing for the State, has concertedly, and, vigorously contended qua the findings of acquittal recorded by the learned trial Court, standing not based, on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise, of its appellate jurisdiction, and, theirs standing replaced, by findings of conviction. 7. On the other hand, the learned counsel appearing for the accused/respondent herein, has, with considerable force and vigour, contended qua the findings of acquittal recorded, by, the learned trial Court rather standing based on a mature, and, balanced appreciation, by it, of the evidence on record, and, theirs’ not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Vehicle bearing No. HP-12A-5434, was, allegedly carrying 10 boxes of Lal Qila, carton whereof contained 12 bottles, of, 750 M.L each, and, it also allegedly carryied 5 boxes, of 375 M.L. each, thereof, recovery whereof stood effectuated, through, memo borne in Ext. PW-1/A. Even though, the imperative linkage, inter-se, the recitals borne in the recovery, memo, Ext. 9. Vehicle bearing No. HP-12A-5434, was, allegedly carrying 10 boxes of Lal Qila, carton whereof contained 12 bottles, of, 750 M.L each, and, it also allegedly carryied 5 boxes, of 375 M.L. each, thereof, recovery whereof stood effectuated, through, memo borne in Ext. PW-1/A. Even though, the imperative linkage, inter-se, the recitals borne in the recovery, memo, Ext. PW-1/A, vis-à-vis, the production, in court, of, the cache of liquor, is apparently established, yet, the mere factum, of, the aforesaid linkage being established, does not, beget any firm conclusion, qua thereupon the prosecution, rather succeeding in proving the charge, the reason given, (a) the prosecution, being also enjoined to prove the essential factum probadum, of, the bottles of liquor, recovered through memo borne in Ext. PW-1/A, and, production whereof, occurred in the Court, also there within, holding liquor, (b) whereas ,for establishing the aforesaid factum, it was imperative, for, the learned APP concerned, to ensure, qua his upon the report of the CTL concerned, hence emboss the apposite exhibition marks whereupon it hence stood rendered both admissible and readable, in evidence (c) whereas, the apposite omission thereof, by the learned APP concerned, rather renders the report of the CTL being neither admissible nor readable in evidence nor hence the prosecution proves qua the cache of bottles, holding there within liquor. 10. In aftermath, with the aforesaid essential factum probandum hence not being firmly established, thereupon the charges framed against the accused also remain not firmly established, by the prosecution. 11. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis of the material on record by the learned trial Court, does not suffer, from a gross perversity or absurdity of mis-appreciation, and, non appreciation of evidence on record. 12. Consequently, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgment, is, affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.