JUDGMENT Vivek Singh Thakur J. (Oral) - Instant appeal has been preferred by State of Himachal Pradesh against acquittal of respondent in case FIR No. 183 of 2000, dated 28.9.2000 registered in Police Station, Solan under Section 61 (1) (a) of Punjab Excise Act, as applicable to the State of Himachal Pradesh vide judgment dated 20.2.2008 passed by learned Additional Sessions Judge, reversing his conviction and sentence announced vide judgment/order dated 25.9.2007 passed by learned Chief Judicial Magistrate in Criminal Case No. 79/3 of 2001. 2. Prosecution case is that on 28.9.2000 at about 11:30 A.M., respondent was found in exclusive and conscious possession of three gunny bags containing 102 bottles of country made foreign liquor, 299 pouches, each containing 180 ML of country liquor and also 80 pouches, each containing 180 ML of country liquor without any permit, transporting the same in Car CH-01Q-9003, being driven by respondent himself from Solan side towards Jatoli, near village Seri, on interception of his vehicle by the police party headed by PW-4, ASI Narayan Singh, consisting of PW-1 Inder Singh, PW-7 H.C. Jeet Ram and Constable Chabil Kumar, Constable Narinder, Constable Fiaz Khan and Constable Dalel Singh. 3. It is the case of prosecution that during patrolling, police party had signalled the vehicle being driven by respondent, whereupon respondent had stopped his car at a distance of 50 feet ahead of police party and after opening the glass of car, he had stated that vehicle is empty and tried to move the vehicle, resulting into suspicion to the police party, whereupon the respondent, who was trying to flee along with car was overpowered, who on inquiry disclosed his identity as respondent. However, he could not produce any documents of vehicle, but on getting opportunity, he jumped below the road and was again overpowered by the police officials. On checking the dickey of the vehicle, three gunny bags of Tata tea were found, wherein in first gunny bag 102 bottles of liquor, in second bag 299 pouches of country liquor with marka Saki each containing 180 ML and 80 pouches of Orange No. 1, each containing 180 ML country liquor, were found in the third gunny bag. On checking the dickey of the vehicle, three gunny bags of Tata tea were found, wherein in first gunny bag 102 bottles of liquor, in second bag 299 pouches of country liquor with marka Saki each containing 180 ML and 80 pouches of Orange No. 1, each containing 180 ML country liquor, were found in the third gunny bag. Respondent could not produce any permit for the said liquor, recovered from the vehicle being driven by him, whereupon samples of 250 ML each from 12 bottles out of 102 bottles and 20 pouches out of 299 pouches of Saki marka liquor and 8 pouches out of 80 pouches of Orange No. 1 country liquor, were separated and seized in separate parcel by sealing the same with seal "A". Remaining recovered liquor was again put in the same fashion in the gunny bags and these bags were also sealed with seal "A". Site map was prepared and rucka Ex. PW-4/A was sent to Police Station for registration of FIR through H.C. Jeet Ram. Samples of recovered liquor were sent to CTL Kandaghat on 11th October, 2000 and after receiving analysis reports Ex. PW-7/B, 7/C, 7/D, 7/E and 7/F from CTL Kandaghat, challan was prepared and filed in the Court. 4. Prosecution has examined as many as seven witnesses to prove its case and after recording statement under Section 313 Cr.P.C., 1973 respondent had chosen not to lead any evidence in his defence. On conclusion of trial, respondent was convicted under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh and sentenced to undergo one year rigorous imprisonment with fine of Rs. 2000/-, in case of default in making the payment of fine, to further undergo simple imprisonment for one month. 5. Before scrutinizing evidence, it would be necessary to refer that initially challan was filed against two persons i.e. respondent and one another Bimal Kumar. From the perusal of record, the said Bimal Kumar appears to be arrayed as respondent for commission of offence under Section 120B IPC i.e. conspiracy with respondent Sukhvinder to transport the liquor recovered from his vehicle. However, after considering the entire material on record, said Sh. Bimal Kumar was acquitted by the trial Court, against which no appeal has been preferred by the respondent-State. 6. However, after considering the entire material on record, said Sh. Bimal Kumar was acquitted by the trial Court, against which no appeal has been preferred by the respondent-State. 6. During the process of search and seizure, police party had also associated two independent witnesses PW-3 Kali Dass and PW-Sukhdev Singh. PW-Sukhdev Singh has not been examined, whereas PW-3 Kali Dass in his deposition in the Court has not lent support to the prosecution case and despite his lengthy cross-examination, nothing discriminatory against the respondent can be elucidated. 7. PW-1 Constable Inder Singh, PW-4 ASI Narayan Singh and PW-7 H.C. Jeet Ram are three other spot witnesses, who are official witnesses. It is settled law that conviction can be based upon only on the statements of official witnesses, in case their evidence is found to be cogent, reliable and trustworthy ultimately establishing the case of prosecution, beyond all reasonable doubt. 8. It is true that no enmity between the police party and the respondent has been established on record and no reason for falsely implicating him by the police has been satisfactorily explained on record, but at the same time, it is also well established that prosecution has to stand on its own legs and the case of prosecution must be proved beyond all reasonable doubt. 9. In present case, in rucka Ex. PW-4/A and in FIR Ex. PW-4/C, recorded on the basis of rucka, it is stated that after stopping vehicle, respondent had tried to flee alongwith his vehicle but he was overpowered along with car and thereafter, when he could not produce the documents, he slipped and jumped below the road, but he was again overpowered by the police officials, whereas facts of trying to flee alongwith car after stopping it on signal of police and jumping below the road, are missing in the statements of PW-1, PW-4 and PW-7 deposed in Court. 10. Allegedly, PW-1 was present on the spot. However, he, in his cross-examination, has stated that in his presence, car was not taken anywhere and he did not know as to whether they had counted the bottles before arrival of witnesses or not. Whereas, PW-7 Investigating Officer has stated that they had brought the respondent to Police Station in the car. Allegedly, PW-1 was present on the spot. However, he, in his cross-examination, has stated that in his presence, car was not taken anywhere and he did not know as to whether they had counted the bottles before arrival of witnesses or not. Whereas, PW-7 Investigating Officer has stated that they had brought the respondent to Police Station in the car. It is also stated by PW-7 that case property was also brought to the Police Station along with respondent in the same vehicle, whereas PW-1 has stated that he did not know as to whether car was locked on the spot or taken to somewhere else. But he categorically stated that they themselves had carried out the gunny bags of liquor to Police Station from the spot. 11. As per prosecution, two independent witnesses PW-3 Kali Dass and PW Sukh Dev were associated in the search and seizure process of the recovered vehicle. PW-4 ASI Narayan Singh in his cross-examination has denied that sales men of Chopra were cited as witnesses, however, it is apparent from the addresses of PW-Sukh Dev and Kali Dass mentioned in list of witnesses filed with the challan, that they are residents of Tehsil Ghumarwin, District Bilaspur, and at that time, they were sales men of Chopra and Company, Solan dealing with liquor business having license for selling liquor in District Solan. There is nothing on record indicating circumstances in which they were present on the spot, which was at a distance of 5 kilometers from Solan and more than 120 kilometers from Ghumarwin. 12. It is case of prosecution that place of occurrence is near village Seri. Investigating Officer PW-4 has stated that there is no house or habitation near the place of occurrence, whereas PW-1 has categorically admitted that there were residential houses near the road and he also admitted that there were number of houses on the side of road in village Seri, but no witness was called from those houses. Liquor was allegedly recovered during day time and no reason has been assigned for not associating independent witnesses, who were naturally available on the spot. However, PW-3 Kali Dass, resident of distant place working at Solan, has been cited as independent witness, associated in search and seizure process, but he also has not supported the prosecution case. He also admitted that he was a cook in Chopra and Company. However, PW-3 Kali Dass, resident of distant place working at Solan, has been cited as independent witness, associated in search and seizure process, but he also has not supported the prosecution case. He also admitted that he was a cook in Chopra and Company. According to his deposition, he was sent to Police Station by Chopra on the call of police to sign papers and accordingly he signed the papers in Police Station. 13. In present case, one out of two independent witnesses had not supported the prosecution case and was declared hostile. Therefore, it was incumbent upon the prosecution to produce another so called independent witness, but the said witness i.e. PW Sukh Dev was given up stating to have won over by the accused. The said witness had never stepped into the witness box and was not put even a single question in the Court. Therefore, on what basis and under which circumstances, he was declared to be won over by the accused, is not on record. For all fairness in any case, particularly when one of the independent witness had not supported the prosecution case, another independent witness must have been examined in the Court, who, at the most, could have not supported the prosecution case, but in that situation, no adverse inference could have been drawn against the prosecution, but withholding of material witness from examining in the Court is certainly fatal to the prosecution case as for not supporting the prosecution case by another witness, he cannot be treated even repetitive witness. 14. As per prosecution case, as evident from Ex. PW-5/A, police party had left police station at 11:00 A.M. on foot for routine patrolling. According to PW-7, they had reached on the place of occurrence after covering a distance of 5 Kilometers. The time of recovery has been claimed as 11:30 A.M. and according to PW-7, they were patrolling, they kept on moving, but with making observations on the way. It is not humanly possible to cover a distance of 5 kilometers within 30 minutes. 15. Even if it is presumed that police party had covered the distance of 5 Kilometers within 30 minutes, then there is another unexplained fact which creates doubt about the veracity of prosecution story. Samples of 250 ML each were taken out of 12 bottles, but where from these 250 ML bottles were obtained, is not clear. 15. Even if it is presumed that police party had covered the distance of 5 Kilometers within 30 minutes, then there is another unexplained fact which creates doubt about the veracity of prosecution story. Samples of 250 ML each were taken out of 12 bottles, but where from these 250 ML bottles were obtained, is not clear. PW-1 in his cross-examination has stated that he did not remember from where these 250 ML bottles (Pawas) were brought. Whereas PW-7 has stated that 250 ML bottles were with them. In departure DDR Ex. PW-5/A, there is no reference that the police party had left the Police Station with 12 empty bottles of 250 ML. According to prosecution, the patrolling was a routine and there is no reference in Ex. PW-5/A that police team was also carrying investigating kit with them. It is also unnatural to presume that police party was patrolling with 12 empty bottles. 12 sample bottles (Pawas) and 28 pouches of samples have claimed to have been sealed in parcel. But where from the cloth for parcel was arranged, is also not clear from the evidence on record. 16. All these infirmities, detailed hereinabove, in prosecution evidence creates a doubt on the fairness of prosecution case and it appears that things had not happened in the manner, as have been claimed in the prosecution case, rendering the evidence of spot witnesses unreliable and untrustworthy. As the evidence of spot witnesses has not been found to be cogent, convincing and reliable, there is no necessity to discuss the statements of other witnesses, who have been examined to prove the other process and procedure undertaken by the Investigating Officer, during investigation. The prosecution has failed to point out any cogent, reliable, trustworthy and convincing evidence, so as to upheld the conviction of respondent, for which he was charged. 17. It is cardinal principle of criminal jurisprudence that in case of possibility of two views, benefit of doubt is to be extended to accused. Therefore, in my opinion learned Additional Sessions Judge has not committed any error, irregularity or illegality in acquitting the respondent after reversing the judgment passed by the trial Court. Accordingly, present appeal is dismissed. Bail bonds furnished by and on behalf of respondent are discharged. Record be sent back.