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2018 DIGILAW 1942 (HP)

State Of H P v. Dineshwar Singh

2018-11-05

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. - The judgment dated 18.7.2006 passed by learned Sessions Judge, Kangra at Dharamshala, in Cr. Appeal No.9-J/X/2006 is under challenged in the present appeal. 2. The perusal of the impugned judgment reveals that on reversal of the judgment dated 17.2.2006 passed by learned Additional Chief Judicial Magistrate, Jawali, District Kangra, the respondent, hereinafter referred to as the accused, has been acquitted from the charge under Section 61(i)(a) of the Punjab Excise Act, as applicable to the State of H.P., hereinafter referred to as the Act. Consequently, the findings of conviction and sentence him to undergo simple imprisonment for a period of six months and to pay ''5,000/- as fine have been quashed and set aside. 3. The prosecution case in a nut shell is that on 12.11.2003, a police party of Police Station, Jawali, headed by ASI Yog Raj, was on patrol duty. The police party was on its way to Harian-Kuthera from from Keharian side. When reached on Talian at about 1.35 p.m. Maruti Car No.HP39A-8466, coming from Kuthera side was spotted there. The car was stopped and checked. On its rear seat, 9 sealed boxes were found to be kept. The said boxes were opened. Each box was containing 12 pouches of country liquor "Patiala Orange" containing 750 ml. each pouch. The accused was driving the car. On inquiry, he disclosed his antecedents. As per further case of the prosecution, it was an isolated place having no abadi. Therefore, no one could be associated as independent witness. Therefore, the police officials, accompanying the I.O., PW-5 ASI Yog Raj were associated and search and seizure, took place in their presence. 4. The accused was asked to produce the permit, if any, issued to carry the liquor recovered from the Car, which he was not having. Samples were separated from three boxes and sealed in a parcel with seal having impression ''A''. The remaining 105 pouches along with samples and the car were taken into possession vide seizure memo Ex.PW-2/A. The specimen of seal Ex.PW-5/A was taken on record separately. The I.O. also prepared the site plan Ex.PW-5/C. He prepared Rukka Ex.PW5/B and it was sent to the Police Station, Jawali for registration of FIR. Consequently, a formal FIR Ex.PW-3/A was registered in the Police Station. Later on, documents of the Car were taken into possession vide memo Ex.PW-2/A 5. The I.O. also prepared the site plan Ex.PW-5/C. He prepared Rukka Ex.PW5/B and it was sent to the Police Station, Jawali for registration of FIR. Consequently, a formal FIR Ex.PW-3/A was registered in the Police Station. Later on, documents of the Car were taken into possession vide memo Ex.PW-2/A 5. The boxes of recovered liquor and sample parcels were deposited in Police Station, Jawali with MHC on duty. The same were sent to ChemicalTestLaboratory,Kandaghatfor examination. Later on the testing reports Ex.PW-5/D and Ex.PW5/E were received and as per the same the samples were found to have the number of Alcohol strength upto 50.00%. The statement of the witnesses were recorded. 6. On completion of the investigation, challan was prepared and filed in the Court. Learned trial Magistrate, on having found a prima facie case having been made out agaisnt the accused, framed charge for the commission of offence punishable under Section 61(i)(a) of the Act against him. He, however, pleaded not guilty to the charge. 7. The prosecution, in order to prove its case, has examined 5 witnesses in all. PW-1 Jarnail Singh is one of the members of the police party, hence the eye witness to the search and seizure. PW-2 Madan Lal, the then MHC, Police Station, Jawali had received the case property including the sample parcel from PW-5, the investigating officer. The sample parcel was sent to CTL Kandaghat by him through HC Santosh Raj (PW-4) vide RC No.167/03. PW-3 Ram Swaroop the then MHC, Police Station, Jawali has registered the FIR Ex.PW-3/A on the receipt of the rukka, he has also proved the endorsement Ex.PW-3/B to be in his hand. PW-4 Santosh has stated that the sample parcel was taken by him to CTL Kandaghat in safe condition and deposited the same there. On his arrival at the Police Station, the receipt was produced before the MHC. PW-5 is ASI Yog Raj, the I.O. 8. Learned trial Magistrate, on appreciation of the evidence available on record has held the accused guilty for the commission of the offence punishable under Section 61(i)(a) and convicted him accordingly. He was sentenced to undergo simple imprisonment for six months and to pay a sum of ''5,000/- as fine. Learned lower appellate Court has accepted the appeal and on reappraisal of the judgment passed by learned trial Magistrate, acquitted the the accused of the charge under Section 61(i)(a) of the Act. He was sentenced to undergo simple imprisonment for six months and to pay a sum of ''5,000/- as fine. Learned lower appellate Court has accepted the appeal and on reappraisal of the judgment passed by learned trial Magistrate, acquitted the the accused of the charge under Section 61(i)(a) of the Act. 9. The judgment passed by learned lower appellate Court is under challenge in the present appeal on the grounds inter alia that the evidence has been appreciated in a slip-shod manner and the findings recorded on the basis of hypothesis, surmises and conjectures. Learned lower appellate Court is stated to have wrongly applied the provisions contained under Section 100(4) of the Code of Criminal Procedure as according to the prosecution, the present being a case of chance recovery, the independent person was not required to be associated to witness the search and seizure. Otherwise also, no inhabited area was near and around the place of occurrence. The findings to the contrary recorded by learned trial Court are therefore stated to be not legally sustainable. 10. Mr. Narinder Guleria, learned Additional Advocate General submits that the recovery has been effected at an isolated place having no abadi near and around. No suggestion was given to the I.O. that village Talian was nearby. On the other hand, the present is a case of chance recovery. According to Mr. Guleria, the compliance of Section 100(4) Cr.P.C. was not required in this case. Huge quantity of country liquor was recovered from the accused and as the recovery is satisfactorily proved, the accused should have not been acquitted of the charge. 11. On the other hand, Mr. Manoj Thakur, Advocate has contended that the judgment passed by learned Sessions Judge is self-speaking and reasoned one. It is pointed out from the record that as per own case of the prosecution, the recovery was effected from the accused at a place near village Talian. The I.O. is stated to have intentionally and deliberately withheld the distance of village Talian from the Court by not mentioning the same in the spot map Ex.PW-5/A. The statement of PW-1 that the road where the recovery, search and seizure has taken place being busy, the vehicles keep on coming and going thereby throughout, however, the I.O. had not made any efforts to associate someone to witness the search and seizure. Therefore, according to learned defence counsel, the impugned judgment calls for no interference by this Court in the present appeal. 12. On analyzing the rival submissions and going through the record, it is apparent on the face of the record that no one was associated to witness the search and seizure by the I.O.. On the other hand, the provisions contained under Section 100(4) Cr.P.C., are mandatory in nature. As defined in the provisions contained under Section 2(p) of the Cr.P.C., ''place'' includes a house, building, tent, vehicle and vessel. If it is so, in the event of the search of the vehicle was required to be conducted, the same should have been done in the presence of the independent witness. Even if it is believed that the present is a case of chance recovery, in that event also the I.O. must have associated someone from that stage onwards till the investigation on the spot was over. However, as per the admission of PW-1, one of the members of the raiding party, the I.O. did not made any effort to join the independent witnesses for a period of about one hour when the police party remained on the spot in connection with the investigation conducted there. 13. Not only this, but as per the version of PW-1 in his cross-examination, the recovery was effected on the main road, which, according to him, is busy road and the vehicles can be seen coming and going on the said road thorughout. It is highly doubtful that no one''s vehicle crossed through that portion of the road during the course of search and seizure having taken place there. As per the prosecution case itself, when the police party reached on a curve ahead to village Talian, around 1.35 p.m. the offending Maruti Car was intercepted there. Therefore, as per the own case of the prosecution, the place of recovery is the next curve from village Talian. The I.O. has not mentioned exact distance from Talian and the place of recovery, perhaps intentionally and deliberately to mislead the Court to believe that the place of recovery was an isolated place. Therefore, as per the own case of the prosecution, the place of recovery is the next curve from village Talian. The I.O. has not mentioned exact distance from Talian and the place of recovery, perhaps intentionally and deliberately to mislead the Court to believe that the place of recovery was an isolated place. Of course, no suggestion was given to him that village Talian is situated adjoining to the place of recovery, however, when as per the prosecution case itself, the recovery had taken place on a next curve from village Talian and the distance between the said village and the spot has not been mentioned in the spot map also. Therefore, it can reasonably be believed that the village Talian was situated nearby the place of recovery, however, in order to mislead the Court, such evidence has been withheld intentionally and deliberately. 14. When as per the own version of the I.O., the Police party remained on the spot for 1 hours, it can reasonably be believed that the vehicles must have crossed therefrom during this period, being broad day light. The recovery of the liquor from the exclusive and conscious possession of the accused has therefore not been proved beyond all reasonable doubt. Learned lower appellate Court has rightly concluded so on appreciation of the evidence in its right perspective. Even the sample was not drawn from all nine boxes allegedly recovered from the Maruti Car being driven by the accused, therefore, on this score also on the basis of chemical examiner''s report Ex.PW5/D and Ex.PW-5/E, how the liability should have been fastened upon the accused qua the recovery of 9 boxes of country liquor namely ''Patiala Orange'' from him. 15. True it is that, in the absence of independent witnesses, the evidence as has come on record by way of police officials can also be relied upon, however, not in this case because when village Talian was nearby, this fact has been concealed from the Court. In such a situation, it is not safe to place reliance on the testimony of the official witnesses PW-1 and the I.O. PW-5. The remaining prosecution witnesses are formal because the case property along with the sample parcel was entrusted to PW-2 and it is PW-4 Santosh Raj, who had taken the same to CTL Kandaghat for analysis. In such a situation, it is not safe to place reliance on the testimony of the official witnesses PW-1 and the I.O. PW-5. The remaining prosecution witnesses are formal because the case property along with the sample parcel was entrusted to PW-2 and it is PW-4 Santosh Raj, who had taken the same to CTL Kandaghat for analysis. PW-3 has recorded the FIR on the basis of Rukka Ex.PW-5/B, he received and also made endorsement Ex.PW-3/B thereon. Such evidence could have been used as link evidence, however, that cannot also be done because the prosecution has failed to prove its case beyond all reasonable doubt. 16. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. The personal bond furnished by the accused shall stand cancelled and the sureties discharged.