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2018 DIGILAW 785 (HP)

Jai Lal v. State of H. P.

2018-05-01

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed, against, the judgment rendered on 31.7.2013, by the learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, in criminal case No.5-III-2007, whereby, he convicted, the accused for his allegedly committing an offence punishable under Section 61 (i) (a) of Punjab Excise Act as applicable to the State of H.P. (hereinafter referred to as the Act) and sentenced him to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs. 10,000/ each and in default of payment of fine, to further undergo simple imprisonment for a terms of six months. 2. The facts relevant to decide the instant case are that on intervening night of 23rd and 24th June, 2006, accused persons along with other co-accused (acquitted by trial Court) were apprehended transporting 95 carton boxes of country liquor Una No. 1, each carton containing 12 bottles and each bottle measuring 750 ml each along with 65 carton boxes of country liquor Lal Quila, each carton containing 12 bottles and each bottle measuring 750 ml. The truck No. HR-38E-5871, being driven by accused Jai Lal was intercepted by a joint team of Police and Excise officials at about 11:15 PM at village Riyala near Sidh Chano Temple on Bhota-Una National Highway. A police party headed by Sohan Lal SHO, Police Station, Barsar, District Hamirpur along with other police officials i.e. HC Purshotam Dass No. 41 HHC Baldev Raj No. 86, Constable Dhanbir Singh No. 218, Constable Rajesh Kumar No. 115 and Constable Piar Chand No. 127 and constable Kewal Singh driver No. 116 were on routine patrole duty on Bhota-Una road in official vehicle No. HP-22-4642. A team of excise officials also reached on the spot. At about 11:40 PM, joint inspection team intercepted truck No. HR-38E-5871 coming from Lathiani side in a high speed. The truck was stopped for routine checking by the police officials. The vehicle was being driven by Jai Lal, whereas other occupant of the cabin disclosed his name as Mehar Singh. The two persons sitting on the roof top in the tool box managed to escape under the cover of darkness. However,the identity of those two persons was established as Vishal and Jeet. The vehicle was being driven by Jai Lal, whereas other occupant of the cabin disclosed his name as Mehar Singh. The two persons sitting on the roof top in the tool box managed to escape under the cover of darkness. However,the identity of those two persons was established as Vishal and Jeet. The vehicle was checked jointly by the Police and Excise officials during which they recovered 95 carton boxes of country liquor Una No. 1 and 65 carton boxes of country liquor Lal Quila. The police and excise officials recovered 1140 bottles of country liquor Una No. 1 and 780 bottles of country liquor Lal Quilla. Total 1920 bottles of country liquor were recovered. The accused persons could not produce permit or license for the transportation of liquor in huge quantity. Pursuant to the recovery of country liquor, three sample bottles of each brand were separated from separate carton boxes for the purpose of chemical analysis. The sample bottles were duly sealed and were taken into possession along with case property with separate seizure memo. SI Sohan Lal after completing search and seizure formalities, scribed Ruka and sent the same through Constable Rajesh Kumar No. 115 to Police Station, Barsar, District Hamirpur, on whichcase FIR No. 116 of 2006 dated 24.6.2006 was registered against the accused persons under Section 61 (1) (a) of the Punjab Excise Act, 1914 (as applicable to the State of H.P.).The Police managed to apprehend the other co-accused and after completing investigation, the challan was filed against accused persons Jai Lal, Mehar Singh, Vijay Kaushal and Surjit Singh 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed before the learned trial Court. 4. The accused stood charged by the learned trial Court for theirs committing offences punishable under Section 61 (1) (a) of the Act. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused, under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication. 5. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused, under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/ appellant herein, for theirs committing offence punishable under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of H.P. In an appeal preferred therefrom, by the accused herein, before the learned Additional Sessions Judge, Hamirpur, the latter affirmed the finding of conviction, and sentence, recorded in the judgment pronounced by the learned trial Court. 6. The appellant stands aggrieved, by the judgment of conviction recorded against him, by both the Courts below. The learned counsel for the appellant, has concertedly, and, vigorously contended qua the findings of conviction 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 conviction warranting reversal by this Court in the exercise, of its appellate jurisdiction, and, theirs standing replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General, has, with considerable force and vigour, contended qua the findings of conviction recorded by the learned trial Court rather standing based on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any 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. 95 carton boxes of country liquor Una No. 1, and, 65 carton boxes of country liquor Lal Quila, each carton, containing 12 bottles, and, each bottle measuring 750 ml. were, recovered under memo Ex.PW2/A, from vehicle bearing No. HR-38E- 5871, vehicle whereof, at the relevant time, stood occupied, by four persons, namely accused Jai Lal, Mehar Singh, Vijay Kaushal and Surjit Singh. Since, the accused failed to produce the relevant permit hence in the FIR, offences punishable under Section 61 (1) (a) of the Act , stood hence constituted against the accused. 10. Since, the accused failed to produce the relevant permit hence in the FIR, offences punishable under Section 61 (1) (a) of the Act , stood hence constituted against the accused. 10. In respect of recovery of the aforesaid bottles, memo Ex.PW2/A was prepared, and, from amongst the aforesaid 160 carton boxes, six bottles were segregated, as samples, sample bottles whereof were sent to CTL, Kandaghat, whereon, the latter pronounced, an affirmative opinion, embodied in Ex. PW9/C. 11. Be that as it may, an ingrained infirmity pervading the prosecution case, is, comprised in the factum of material prosecution witnesses, in their respective testifications, rather making unanimous echoings (i) qua non appending of seals, on any of the boxes containing bottles of liquor, (b) besides they unanimously testify, of, no specific identification mark being embossed, upon, any of the boxes, containing bottles of liquor. The Investigating Officer concerned, though was enjoined, to, on all the boxes holding therewithin bottles of liquor, hence affix thereon specific identification marks besides was enjoined, to, emboss seals thereon, and, was also enjoined to make apposite concurring therewith, reflections, in the relevant seizure memo, Ex.PW2/A, (c) yet neither the seizure memo, carries any recitals, of the Investigating Officer concerned, embossing any specific identification marks vis-a-vis the seized carton boxes, holding therewithin liquor nor also there occurs any echoing therein, of, any seal impression (s), being embodied thereon, (d) wherefrom, it is apt to conclude of the Investigating Officer concerned, failing to ensure, adduction of potent proof, vis-a-vis the trite factum, of, the bottles recovered under memo Ex.PW2/A, being at the time of their production in Court, hence standing pointedly linked vis-a-vis effectuation (s), of, their recovery in the manner disclosed, in the apposite FIR. The further effect thereof (e) is that for lack of occurrence, of, imminent connectivity inter se the purported recovery of 160 boxes, holding therewithin liquor, from, the manner encapsulated in the FIR vis-a-vis the stage of their production in Court, rather hence garnering an inference of the prosecution omitting to assuredly, prove qua all the boxes of liquor, as stood recovered under memo Ex.PW4/F, hence standing squarely connected therewith or vis-à-vis Ext. PW9/C. 12. PW9/C. 12. A further perusal of the record, reveals, that (iv) six bottles were segregated as samples, and, were sent to the CTL Kandaghat, and, of, the latter rendering thereon an affirmative opinion qua contents thereof, opinion whereof is borne in Ex.PW9/C. The learned defence counsel, yet, did not make any effort, for the six bottles sent to CTL, Kandaghat, being ordered to be produced in Court, for his thereafter making, a valid projection before the learned trial Court, that, with thereon also the Investigating Officer, hence, failing to emboss the appropriate seals, nor seals, if any, embossed thereon not bearing any similarity with the recitals carried in the seizure memo, or in the road certificate concerned, whereunder they were dispatched to CTL, Kandaghat (i) whereas, only upon theirs being produced in Court, also theirs, making, revelations in support of the learned defence counsel's espousal, it was befitting to discard the report borne in Ex. PW9/C, reiteratedly, failure aforesaid, of the learned defence counsel, contrarily constrains a conclusion, of the six bottles retrieved, from, amongst 1920 bottles of liquor carried in 160 carton boxes, in the manner disclosed in the FIR, being properly sealed, and, also samples retrieved therefrom, whereon, an affirmative opinion borne, in Ex.PW9/C was pronounced by the CTL concerned, rather enjoying both tenacity as well as evidentiary worth. The further concomitant effect, of the aforesaid inference is hence qua the defence also conceding of six bottles holding therewithin liquor. 13. Be that as it may, even if the aforesaid conclusion is recorded by this Court, its effect stands blunted, by the factum of the opinion of CTL, Kandaghat, borne in Ex.PW9/C, being only pronounced with respect to six bottles, and, when the charge was framed against four accused, thereupon, when vis-a-vis each, from, amongst six bottles, purportedly recovered bottles are distributed inter se all the accused, thereupon, when it is legally permissible, for each of the accused to carry two bottles, without any valid permit or licence issued by any authority, hence, the charge is not made out against them. 14. 14. 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 apart therefrom the analysis of the material on record by the learned appellate Court suffers from a perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 15. The appeal is allowed. The impugned judgment is quashed and set aside. The accused is acquitted. Case property be destroyed after the expiry of the period of limitation, for filing an appeal. Fine amount, if deposited by the accused be forthwith refunded to him. Personal and surety bond (s) be forthwith discharged.