JUDGMENT Sandeep Sharma, J. - Instant criminal revision petition filed under Section 397 of Cr. PC, is directed against the judgment dated 11. 11. 2009, passed by the learned Sessions Judge, Sirmaur District at Nahan, H. P. , in criminal appeal No. 5-Cr. A/10 of 2005, affirming judgment of conviction dated 21. 4. 2005, recorded by the learned Additional Chief Judicial Magistrate Rajgarh, District Sirmaur, H. P. , in Cr. Case No. 3/2 of 2002, whereby the learned court below while holding the accused guilty of having committed offences punishable under Section 61 (1) (a) of Punjab Excise Act, as applicable to the State of HP, sentenced the accused to undergo simple imprisonment for a period of one year and to pay fine of Rs. 5000/- and in default of payment of fine, to further undergo simple imprisonment for three months. 2. In nutshell case of the prosecution is that on 13. 4. 2001, flying squad headed by Kuldeep Kumar Thakur, Excise and Taxation Inspector, apprehended a truck bearing No. HP-18- 4524, being driven by the petitioner-accused and recovered 600 boxes of country made liquor of make "Sirmaur No. 1". Since driver was unable to produce valid licence/permit to possess/retain the aforesaid boxes, he was taken into custody alongwith 600 boxes of country made liquor. Though petitioner accused produced permit with regard to 325 boxes of country made liquor but entire bulk of 600 boxes containing country made liquor was taken into custody by the police. Subsequently, on the complaint of Exercise and Taxation Inspector, FIR bearing No. 23/2001 under Section 61 of the Act ibid, came to be registered against the accused. Police after having taken into possession 600 boxes of liquor, drew samples only out of six boxes of 750 ml pouches of country made liquor make Sirmaur No. 1 and sealed the same with seal impression "T". Remaining boxes i. e. 519 of 750 ml. and 75 boxes of 375 ml. were released on sapurdari to Shri Palash Ram, ETI Sarahan. Subsequently, on 14. 4. 2001, one Bhim Singh & Co. Remaining boxes i. e. 519 of 750 ml. and 75 boxes of 375 ml. were released on sapurdari to Shri Palash Ram, ETI Sarahan. Subsequently, on 14. 4. 2001, one Bhim Singh & Co. Solan along with Sada Nand Chauhan, moved an application to the police for release of liquor allegedly recovered by the police from the vehicle being driven by the petitioner-accused, however fact remains that the police rejected the application filed by the above named persons and as such, they moved an application before the Court concerned, who vide order dated 19. 7. 2001, ordered the Excise officer to release the liquor after imposing fine. Since above named persons had moved an application to get their liquor released by producing permit No. 4/2001 and Pass No. 208201, they were also challaned under Section 61 (1) of Act ibid and Sections 467, 468, 471 and 120-B IPC. 3. After completion of investigation, police presented challan in the competent Court of law i. e. Additional Chief Judicial Magistrate, Rajgarh, District Sirmaur, HP, who on being satisfied that prima-facie case exists against the accused, charged Subhash Chand and Mukul Kumar under Section 61 (1) (a) of the Act ibid whereas accused Sadanand Chauhan and Bhim Singh came to be charged under Section 61 (1) (a) of the Act ibid and Sections 467, 468, 471 and 120-B of IPC, to which they pleaded not guilty and claimed trial. 4. Subsequently on the basis of evidence led on record by the prosecution, learned trial Court convicted the accused Subhash Chand and Mukul Kumar under Section 61 (1) (a) of the Act ibid and acquitted co-accused Sadaand and Bhim Singh extending benefit of doubt under Section 61 (1) (a) of the Act ibid and Sections 467 468, 471 and 120-B of IPC. 5. Being aggrieved and dis-satisfied with the aforesaid judgment of conviction recorded by the learned trial Court, present accused alongwith co-accused Mukul Kumar preferred an appeal before the learned Sessions Judge, Sirmaur District at Nahan. Learned Sessions Judge vide judgment dated 11. 11. 2009, while partly accepting the appeal preferred on behalf of Mukul Kumar, acquitted him of the charges framed against him under Section 61 (1) (a) of the Act ibid, whereas the court below held present petitioner-accused guilty of having committed offence punishable under Section 61 (1) (a) of Punjab Excise Act. Learned Sessions Judge vide judgment dated 11. 11. 2009, while partly accepting the appeal preferred on behalf of Mukul Kumar, acquitted him of the charges framed against him under Section 61 (1) (a) of the Act ibid, whereas the court below held present petitioner-accused guilty of having committed offence punishable under Section 61 (1) (a) of Punjab Excise Act. In the aforesaid background, present petitioner-accused has approached this Court in the instant proceedings, seeking therein his acquittal after setting aside judgment of conviction recorded by the learned Sessions Judge, at Nahan. 6. During pendency of the present appeal, this Court also issued notices to such of those co-accused in the case, who came to be acquitted by the courts below, who are represented by Mr. Vivek Sharma, Advocate. 7. Mr. Deepak Kaushal, learned counsel representing the petitioner-accused while referring to the impugned judgment of conviction recorded by the learned Sessions Judge, vehemently contended that same is not sustainable in the eye of law as the same is not based upon proper appreciation of evidence available on record and as such, same deserves to be quashed and set-aside. While placing reliance upon judgment passed by this Court in Criminal Appeal No. 7 of 2018, titled State of HP v. Jagtar Singh, decided on 9. 3. 2018, learned counsel contended that since only six pouches of country liquor make Sirmaur No. 1 were drawn as samples and sent to the SFSL, recovery, if any, can be said to be of 6 pouches only and as such, judgment of conviction recorded by the court below being contrary to the law laid down by this Court, is not sustainable and as such, same deserves to be quashed and set-aside. 8. Mr. Dinesh Thakur, learned Additional Advocate General representing the State contended that there is no illegality and infirmity in the judgment of conviction recorded by the learned Sessions Judge, rather same is based upon proper appreciation of evidence and as such, there is no scope of interference, whatsoever for this Court and as such, same deserves to be upheld. 8. Mr. Dinesh Thakur, learned Additional Advocate General representing the State contended that there is no illegality and infirmity in the judgment of conviction recorded by the learned Sessions Judge, rather same is based upon proper appreciation of evidence and as such, there is no scope of interference, whatsoever for this Court and as such, same deserves to be upheld. Learned Additional Advocate General further contended that true it is that only six pouches of country liquor make Sirmaur No. 1 were drawn as sample for sending the same to the SFSL, but those were sufficient to conclude on record that 600 boxes allegedly recovered from the vehicle being driven by the petitioner accused were containing liquor. Mr. Thakur further contended that there is no dispute that 600 boxes recovered from the truck being driven by the petitioner accused, were containing pouches of country liquor make "Sirmaur No. 1". While referring to the evidence adduced on record by the prosecution, learned Additional Advocate General, contended that prosecution proved its case beyond reasonable doubt that on the date of alleged occurrence, petitioner-accused was illegally transporting 600 boxes of liquor without there being any permit and as such, he has been rightly held guilty of having committed offence punishable under Section 61 (1) (a) of Punjab Excise Act, by the Court below. 9. I have heard the learned counsel for the parties and gone through the record. 10. After having carefully perused the evidence led on record by the prosecution, this Court is not persuaded to agree with the contention of the learned counsel for the petitioneraccused that there is no evidence at all on record adduced by the prosecution to connect the petitioner-accused with the recovery of 600 boxes of liquor from the truck being driven by him because admittedly prosecution by way of leading cogent and convincing evidence has successfully proved on record that on the date of alleged incident, it was the accused, who was carrying /transporting 600 boxes of liquor without there being any permit. However, this Court finds considerable force in the second argument of learned counsel representing the petitioner accused that recovery, if any, of just 6 pouches out of 600 boxes of liquor can be said to have been effected because undisputedly, only six pouches out of 600 boxes were sent for chemical analysis. However, this Court finds considerable force in the second argument of learned counsel representing the petitioner accused that recovery, if any, of just 6 pouches out of 600 boxes of liquor can be said to have been effected because undisputedly, only six pouches out of 600 boxes were sent for chemical analysis. This Court has no hesitation to conclude that prosecution has failed to prove its case beyond reasonable doubt that 600 boxes allegedly recovered from the truck allegedly being driven by the accused contained liquor. As has been taken note herein above, six pouches containing 750 ml liquor were sent for chemical analysis, which were found to be liquor by the chemical analyst, but there is nothing on record to show that remaining bottles contained in 600 boxes allegedly recovered from accused also contained country liquor more than permissible limit without having any licence. Needless to say, it was incumbent upon the prosecution to prove that respondent was in actual and conscious possession of illicit liquor in excess of permissible limit and as such, no conviction could be recorded by the court below merely on the strength of the report submitted by chemical analyst qua six pouches of liquor. In view of aforesaid omission on the part of the investigating agency, entire recovery allegedly effected by the police stands vitiated on account of the fact that only six pouches out of the total alleged recovery from the accused were sent for chemical analysis and as such, recovery of only six pouches of liquor is proved. At this stage, reliance is placed upon judgment passed by this Court in " Surender Singh. V. State of H. P , (2013) 2 LatestHLJ 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. 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) CriLJ 1346; State of H. P. versus Ramesh Chand,2007 2 LatestHLJ 1017; Dharam Pal and another versus State of Himachal Pradesh , (2009) 2 ShimLC 208 ; and State of Himachal Pradesh versus Kuldeep Singh & others,2010 2 HimLR 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. " 11. Reliance is also placed on the judgment passed by this Court in State of HP v. Jagjit Singh , (2008) 2 LatestHLJ 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. 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. " 12. Consequently, in view of the aforesaid discussion as well as law referred hereinabove, present petition is allowed and judgments passed by the Courts below are quashed and setaside and petitioner-accused is acquitted of the offence punishable under Section 61 (1) (a) of the Act ibid. Bail bonds furnished by the petitioner are discharged. Interim order is vacated. Fine amount, if any deposited by the petitioner, be refunded to him. Pending applications, if any, are also disposed of.