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2018 DIGILAW 1699 (HP)

State Of H. P. v. Ramesh Chand

2018-09-19

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal stand directed, against, the verdict rendered by the learned Chief Judicial Magistrate, Kangra at Dharamshal , in criminal case No. 82-III/07, whereunder, he returned findings of acquittal, upon, the accused in respect of charges framed, under, Section 61(1)(a) of the Punjab Excise Act. 2. Briefly stated the case of the complainant is that on 17.3.2007, I.O. SIMahinder Singh, SHO P.S. Shahpur, along with HC Rakesh Kumar and HHC Harbans Singh was present at Nakka at Chambi Chowk at about 10-:00 p.m. At about 10:30 p.m. one jeep bearing registration No. HP40A-2869 came at the spot from Rait side which was stopped and its documents were checked, which were found in order. The I.O. on lifting the tarpaulin from the back of the jeep, found 125 boxes of country liquor Lal Quila, containing 12 bottles each box and total 1500 bottles, in the jeep being driven the accused No. 2 Ashwani Kumar. Accused No.1 Ramesh Chand was also sitting in the front of the jeep along with the driver. The said 125 boxes of country liquor Lal Quila, were being found transported without any permit. SI Mahinder Singh SHO took out 10 bottles each from 10 boxes as sample nip i.e. Ext. P1 to P10 and thereafter the case property was sealed with seal impression M and case property along with jeep/vehicle was taken into possession vide memo Ext. PW1/A. Ruqua Ext. PW6/A was prepared , on the basis ofl which FIR Ext. PW2/A was registered. Spot map Ext. PW6/B was also prepared. Statements of the witnesses were recorded under Section 161 of Cr. P.C. The case property was thereafter deposited with the MHC,P.S.Shahpur, who later on sent the nips to CTL Kandaghat for chemical examination and the report of Chemical Examiner to this effect was procured as Ext. PY. 3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed in the Court concerned. 4. The accused was charged by the learned trial Court, for his committing offence(s) punishable under Section 61(1)(a) of the Punjab Excise Act. In proof of the charge, the prosecution examined 6 witnesses. 4. The accused was charged by the learned trial Court, for his committing offence(s) punishable under Section 61(1)(a) of the Punjab Excise Act. In proof of the charge, the prosecution examined 6 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was, recorded by the trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. However, he did not lead any defence evidence. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of acquittal upon the accused/appellant herein. 6. The State of H.P., is aggrieved by the judgment of acquittal, recorded by the learned trial Court. The learned Deputy Advocate General, 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, being reversed by this Court, in, the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the respondent, has with considerable force and vigour, contended that the findings of acquittal, recorded by the Court below standing based on a mature and balanced appreciation, by it, of evidence on record, and, theirs not necessitating 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. The relevant cache of liquor stood recovered, under, memo Ext. PW1/A, and, 10 bottles were therefrom extracted, as samples, and, were, sent to the CTL, Kandaghat, and the latter under, an opinion, comprised in Ext. P-Y, recorded a finding that the afore 10 bottles, extracted as sample, hence holding ingredients of Alcohol. 10. The prosecution was enjoined to connect the recovery, of, cache of liquor, effectuated under memo Ext. PW1/A, vis--vis its production in Court. P-Y, recorded a finding that the afore 10 bottles, extracted as sample, hence holding ingredients of Alcohol. 10. The prosecution was enjoined to connect the recovery, of, cache of liquor, effectuated under memo Ext. PW1/A, vis--vis its production in Court. However, the learned Chief Judicial Magistrate, Kangra at Dharamshala, vide Mark-A, ordered for destruction, of, the cache of liquor recovered, under, memo borne, in Ext.PW1/A. Hence, the case property recovered thereunder was not produced, before, the learned trial Magistrate, for, its hence, thereat being shown to the prosecution witnesses concerned, for rather enabling the latter to render testification(s), with respect to the apt recovery made, through memo borne in Ext. PW1/A, also appertaining, vis--vis, its production in Court. Want thereof, begets, the sequelling effect (ii)qua the prosecution hence failing to prove the recovery of cache of liquor, through, memo Ext. PW1/A, vis-vis, its production in Court. However, the opinion of CTL, Kandaghat, vis--vis 10 bottles of liquor, extracted from the bulk of case property, in respect whereof, memo borne in Ext. PW1/A, was drawn, assumes probative vigor, (iii) given the opinion borne in Ext. PY, being perse inadmissible, even without its author stepping into witness box, (iv) In aftermath, hence with respect, to, the 10 sample bottles of liquor, extracted from the bulk, of case property, recovered under memo Ext. PW1/A, an order of acquittal was not enjoined to be made, and, thereupon the order of acquittal pronounced, in respect thereto, is quashed and set aside. 11. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner and the analysis of the learned trial Court suffers from a perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 12. There is merit in the appeals, and the same is partly allowed. The impugned judgment is quashed and set aside. The accused/respondent be produced before this Court, for his being heard on quantum of sentence, on 24.10.2018.