Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 574 (HP)

Ashok Kumar v. State Of Himachal Pradesh

2018-04-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This present revision petition under Section 397 of the Code of Criminal Procedure is directed against the judgment passed by learned Additional Sessions Judge, Solan, on 26.02.2008, whereby the appeal preferred by accused Hari Ram against the judgment of conviction and sentence passed by learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. on 19/21.11.2007, was allowed while the appeal preferred by the petitioners against the judgment of conviction and sentence passed by learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. on 19/21.11.2007, was partly allowed. 2. Briefly stated the facts as emerge from the prosecution story are that on 19.03.1999 during the evening ASI Hem Raj along with three Head constables and two Constables, apart from Excise and Taxation Inspector Jai Singh and one Yog Raj had done ''nakabandi'' at Baddi in connection with traffic checking and excise raids. It was alleged that at about 5.00 p.m. from the side of Marawala Maruti Van No.HR-37-0670 came. On suspicion, it was stopped and on checking it was found that inside the dickey and back seat of the Van, there were 30 cartons containing 50 pouches each of country liquor ''Gulab'' 180 ml. each, in total 1500 pouches, on which it was written for sale in Chandigarh only. It was further alleged that the driver of the Van as well as other persons sitting therein on inquiry disclosed their names as Ashok Kumar and Santokh Singh, respectively. One sample pouch was taken out from each carton. The samples and remaining pouches were separately sealed and taken into possession vide a memo. Maruti Van along with its documents and driving licence of petitioner Ashok Kumar as well as key were also taken into possession by the police vide a seizure memo. Rukka was prepared by ASI Hem Raj and was sent to Police Station, Barotiwala whereupon FIR came to be registered on the basis of the said rukka. 30 sample pouches were sent to Chemical Examiner, who on analysis thereof found the samples of country liquor contained 49.7% proof alcohol strength each. During the investigation, petitioner Santokh Singh made a disclosure statement that he had been asked by accused Hari Ram to bring the country liquor and had paid to him a sum of Rs.10, 000/- as advance. 30 sample pouches were sent to Chemical Examiner, who on analysis thereof found the samples of country liquor contained 49.7% proof alcohol strength each. During the investigation, petitioner Santokh Singh made a disclosure statement that he had been asked by accused Hari Ram to bring the country liquor and had paid to him a sum of Rs.10, 000/- as advance. Thus, the petitioners Ashok Kumar and Santokh Singh were found in possession of 1500 pouches of country liquor without permit for possession and transportation thereof. 3. On being confronted with the charges under Section 61(1) (a) of the Punjab Excise Act (as applicable to the State of H.P.) and Section 120-B IPC, the petitioners pleaded not guilty. This led the prosecution to examine 8 witnesses in all to substantiate and prove the allegations against the petitioners. Thereafter, the petitioners were examined under Section 313 Cr.P.C. wherein the case of the petitioners was of denial, but no evidence in defence was led. 4. All the three accused were convicted and sentenced, however, on appeal, Hari Ram''s appeal was allowed and he was acquitted of all the offences. 5. Two-Fold submissions have been made by learned counsel for the petitioners; firstly, that the prosecution has not been able to prove its case beyond reasonable doubt and secondly even if it is held that the prosecution has been able to prove its case beyond shadow of doubt, even then, what has been proved on record is the quantity of liquor that had been sent for analysis and not the entire quantity of liquor as recovered. 6. Admittedly, the entire prosecution case rests upon the testimonies of official witnesses PW-4 ASI Hem Raj, who happened to be the head of patrol party, PW-5 ETI Baddi Circle was along with the police party at the relevant point of time, PW-6 Yog Raj, Peon, from the Excise and Taxation Barrier, Baddi, PW-7 constable Amarjit Singh and PW-8 constable Ranjeet Singh. All the four prosecution witnesses have supported the case of the prosecution in its entirety. Moreover, it is proved on record that it was a case of chance recovery and, therefore, no independent witness has been associated by the prosecution. 7. All the four prosecution witnesses have supported the case of the prosecution in its entirety. Moreover, it is proved on record that it was a case of chance recovery and, therefore, no independent witness has been associated by the prosecution. 7. The prosecution has led clear, cogent and convincing evidence to prove the alleged recovery and such findings are exceptional as it is more than settled that the conviction can be based upon the testimonies of official witnesses alone, more particularly if their statements inspire confidence. 8. However, the second submission of the learned counsel for the petitioners seems to be of substance as even after having approved the recovery, the fact still remains as to whether the prosecution has been able to prove the entire recovery of 50 pouches each of country liquor ''Gulab'' 180 ml. each, in 30 cartons. Why I observe so is because even as per the admitted case of the prosecution, out of 30 cartons of country liquor, each carton containing 50 pouches of 180 ml. each, in total 1500 pouches, the prosecution has admittedly sent only 30 pouches for analysis. Therefore, assuming that the contraband was actually recovered by the prosecution, it did not take sample from all the boxes, but only took samples from 30 pouches. Thus, there is nothing on record to actually prove that the remaining 1470 pouches actually contained liquor. 30 pouches that were sent for sampling cannot be said to be representative in character. 9. In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, 2003 Cr.L.J. 1346, State of H.P. versus Ramesh Chand, Latest HLJ 2007 (2) 1017, State of H.P. versus Jagjit Singh, Latest HLJ 2008 (HP) 919, Dharam Pal and another versus State of Himachal Pradesh, 2009 (2) Shim. LC 208, State of Himachal Pradesh versus Kuldeep Singh & others, 2010(2) Him.L.R. 825, Surender Singh versus State of Himachal Pradesh, Latest HLJ 2013 (HP) 865 , Criminal Revision No. 37 of 2007, titled Jagat Ram versus State of Himachal Pradesh, decided on 08.05.2013, Criminal Revision No. 52 of 2009, titled Sanjeev Kumar and others versus State of H.P., decided on 25.10.2016 and Criminal Revision No.4 of 2010, titled Subhash versus State of Himachal Pradesh, decided on 20.03.2018, has acquitted the accused, as the prosecution could not prove, beyond reasonable doubt, as to what actually was there in the remaining boxes. 10. 10. Thus, what at best can be said to have been proved on record is the recovery of 30 pouches of 180 ml. each of country liquor ''Gulab'' from the petitioners. 11. Evidently, the incident in question has taken place more than 18 years back on 19.03.1999 and now even the established or proved recovery from both the petitioners is only 5400 ml. as against 3000 ml. each which the petitioner otherwise could legally carry. 12. The petitioners have already faced the pangs and suffered agony of protracted trial and appeal/revision for the last one decade. Even the modern trend of penology also leads to the reformation of the offender so as to make him useful citizen of the society. Therefore, no useful purpose is otherwise going to be achieved by again sending the petitioners to jail. 13. Thus, taking into account, all the cumulative facts and circumstances of the case, I am of the considered view that as against the substantive sentence of conviction and sentence, the fine amount in this case should be increased. 14. Accordingly, the revision is partly allowed and the judgment of conviction and sentence passed by both the learned Courts below is modified to the extent by holding that as against 1500 pouches, the prosecution has only been able to prove the recovery of 30 pouches and, therefore, substantive sentence of imprisonment as ordered by the learned Courts below is set aside by directing both the petitioners to pay fine of Rs.10, 000/- each within one month from today and in default of payment of fine amount to undergo simple imprisonment for one month each. Bail bonds furnished by the petitioners are discharged. Pending application, if any, also stands disposed of.