JUDGMENT : Vivek Singh Thakur, J. State has preferred Cr. Appeal No. 527 of 2005, against respondents Gurmail Singh and Paal Singh, against the judgment dated 26.09.2005, passed by learned Chief Judicial Magistrate, Sirmaur, Distt. at Nahan (HP), in Criminal Case No. 79/01 of 2002 (hereinafter referred to as 'the impugned judgment), for enhancement of the sentence imposed upon them under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh (for short 'the Excise Act’), in case FIR No. 39/2001, dated 02.03.2011, registered in Police Station Sadar, Nahan, District Sirmaur, under Section 61 (i) (a) of the Excise Act read with Sections 420 & 482 of the Indian Penal Code. 2. Criminal Appeal No. 24 of 2006 has also been preferred by the State arising out of the same judgment, against which Criminal Appeal No. 527 of 2005 has been preferred by the State. This appeal has been preferred against all the respondents, i.e. Gurmail Singh, Paal Singh and Harvinder Pal, for setting aside their acquittal vide impugned judgment under Sections 420 & 482 of Indian Penal Code (hereinafter referred to as 'IPC) 3. Both these appeals are based upon the one and the same evidence on record of one case and the common question of law and fact is involved in these appeals, therefore, they are taken up for hearing together and are being decided accordingly. 4. On the basis of challan presented by the prosecution in the Court, respondents were charge-sheeted under Section 61 (1) (a) of the Excise Act, for transporting 4420 pouches (each pouch containing 70 ml) of 'Sirmour No. 1”, in Truck No. HR-37-A-0305, on 02.03.2001, at around 9.30 p.m., without any legal and valid permit to transport the same and for commission of an offence under Section 420 of IPC, by dishonestly inducing and cheating the State of Himachal Pradesh, after changing the chassis and engine numbers of the aforesaid truck and also for commission of an offence under Section 482 IPC by using false property marks instead of original chassis and engine numbers of the said truck, with intent to defraud the State of Himachal Pradesh. 5. Prosecution has examined 15 witnesses in support of its case. After recording statements of the respondents-accused under Section 313 of the Code of Criminal Procedure, they have not chosen to lead any evidence in their defence. 6. 5. Prosecution has examined 15 witnesses in support of its case. After recording statements of the respondents-accused under Section 313 of the Code of Criminal Procedure, they have not chosen to lead any evidence in their defence. 6. On conclusion of trial, respondents Gurmail Singh and Paal Singh were convicted by learned Trial Court under Section 61 (1) (a) of the Excise Act and were sentenced to undergo the simple imprisonment already undergone by them during the trial w.e.f. 02.03.2001 to 05.03.2001 and also to pay fine of Rs. 1,000/- each and they were acquitted under Sections 420 and 480 of IPC. Respondent-Harvinder Pal was acquitted for all the offences, for which he was charged. 7. Respondents Gurmail Singh and Paal Singh have not assailed their conviction and sentence imposed upon them. It is only the State, which has challenged the impugned judgment, as stated, supra. 8. As far as commission of offences under Sections 420 & 482 IPC is concerned, the only evidence on record is the statement of PW-8 Sanjeev Kumar, copy of release application (Ext. PW-13/A) filed by Harvinder Pal for staying the auction of truck No. HR-37-A-0305, photocopy of registration certificate of the said truck (Ext. PW-13/B) and power of attorney signed by Harvinder Pal (Ext. PW-13/C), filed on his behalf at the time of preferring the release application (Ext.PW-13/A). 9. PW-8 Sanjeev Kumar in his deposition has stated that as per record of office of the Registering and Licencing Authority, Ambala, truck No. HR-37-A-0305 bearing chassis No. 344052198983 and engine No. 692022206658, has been registered in the name of respondent Harvinder Pal. There is nothing on record to establish that the truck impounded by the police being used for transporting the liquor has having different chassis and engine numbers from that proved by PW-8 in the Court, rather, from the copy of registration certificate (Ext. PW-13/B) proved by PW-13 Amit Kumar, Criminal Ahlmed of the office of the Chief Judicial Magistrate, Nahan, it is evident that registration certificate placed on record by respondent-Harvinder Pal alongwith his release application (Ext. PW-13/A) and registration certificate (Ext. PW-13/B) bears the same chassis and engine numbers, as proved by PW-8 Sanjeev Kumar on the basis of record of Registering and Licencing Authority. 10. PW-13/A) and registration certificate (Ext. PW-13/B) bears the same chassis and engine numbers, as proved by PW-8 Sanjeev Kumar on the basis of record of Registering and Licencing Authority. 10. From the available evidence on record, it can safely be said that there is not even an iota of evidence led by the prosecution to establish the charge under Sections 420 & 482 IPC against the respondents. 11. Respondent-Harvinder Pal has also been acquitted under Section 61 (1) (a) of the Excise . Though, in his statement under Section 313 Cr.P.C, he has denied the ownership and possession of truck No. HR-37-A-0305, but at the same time, there is unrebutted evidence of documents, i.e. release application (Ext. PW-13/A), registration certificate (Ext. PW-13/B) and power of attorney (Ext. PW-13/C), which establishes that Harvinder Pal had filed an application in the court claiming the ownership and possession of the truck in question. Further PW-8 has also established that the said Harvinder Pal was the owner of the truck. There is no cross-examination of the said witness in this regard despite having opportunity to do so. Therefore, ownership of truck No. HR-37-A-0305 is undoubtedly stands proved to be of Harvinder Pal. But the ownership of the vehicle is not sufficient to prove involvement of Harvinder Pal in the commission of offence, i.e. transportation of illicit liquor. It is again a case of no evidence on this count. 12. Though, owner is to be supposed in constructive possession of the vehicle and he cannot get rid of the acts committed by his servants, particularly, when the ownership is claimed and auction of the vehicle involved in the offence is opposed, but in peculiar circumstances of the present case, Harvinder Pal Singh cannot be said to be having even constructive control over the vehicle so as to direct or permit his driver or conductor for using the truck for illegal transportation of liquor unless proved by leading cogent and reliable evidence as he, at the relevant point of time, was in custody in jail at Chandigarh in another case, which fact has been proved by PW-11 Head Constable Ashok Tuli. There is possibility that he might not having the control over the person plying the vehicle at relevant point of time. 13. There is possibility that he might not having the control over the person plying the vehicle at relevant point of time. 13. There is nothing on record to establish that Harvinder Pal had ever allowed respondents Gurmail Singh and Paal Singh to transport the said liquor. On this issue for want of convincing evidence, he is entitled for benefit of doubt. Therefore, on this issue also, learned trial court has not committed any mistake. Conviction and sentence imposed upon Gurmail Singh and Paal Singh have not been assailed by the said respondents. 14. It is further contended on behalf of the State that for the commission of offence under Section 61 (1) (a), minimum sentence of six months imprisonment has been prescribed alongwith fine and thus, it is canvassed that sentence imposed by the learned trial court is inadequate and lesser than minimum punishment prescribed under the Excise Act. 15. Learned Counsel for respondents has referred provisions of Section 61 of the Act, applicable in present case, prevailing at relevant point of time, which is not disputed by the State. 15. Learned Counsel for respondents has referred provisions of Section 61 of the Act, applicable in present case, prevailing at relevant point of time, which is not disputed by the State. The same reads as under:- “61 (1) Penalty for unlawful import, export, transport, manufacture, possession, etc.- whoever, in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act,- (a) imports, exports, transports, manufactures, connects or possess any intoxicants; or (b) constructs or works any distillery or brewery; or (c) uses, keeps or has in his possession any materials, still, utensils, implement or apparatus whatsoever, for the purpose of manufacturing any intoxicant other than tari; Shall be punishable for every such offence with imprisonment for a term which may extend to three years and with fine which may extend to two lakh of rupees; Provided that in the case of an offence relating to the possession of- (i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than three years and such fine shall not be less than one lakh rupees; (ii) lahan such imprisonment shall not be less than one year and such fine shall not be less than fifty thousand rupees; (iii) Country liquor manufactured otherwise than in a licensed distillery in Himachal Pradesh, in a quantity not exceeding ten bottles, each bottle containing 750 milliliters, such imprisonment shall not be less than six months and such fine shall not be less than five thousand rupees; and in a quantity exceeding ten bottles of the aforesaid capacity such imprisonment shall not be less than one year and such fine shall not be less than ten thousand rupees. (iv) Foreign liquor other than— (a) manufactured in a licensed distillery/brewery in India; or (b) imported into India on which custom duty is leviable under the Customs Tariff Act, 1975, or the Custom Act, 1962. such imprisonment shall not be less than one year and such fine shall not be less than twenty thousand rupees. (2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. such imprisonment shall not be less than one year and such fine shall not be less than twenty thousand rupees. (2) Penalty for unlawful import, export, transport, manufacture, possession, sale etc. –Whosoever in contravention of any section other than sections 29 and 30 of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act- (a) sells any intoxicant; or (b) cultivates the hemp plant; or (c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or (d) bottles any liquor for the purposes of sale; or (e) taps or draws tari from any tari-producing tree; Shall be punishable- (i) Where such contravention relates to an offence specified in clauses (a), (c), (d) and (e), with imprisonment for a term which shall not be less than six months but which may extend to two years and shall not be liable to fine which shall also be less than fifty thousand rupees but which may extend to two lakh rupees; and (ii) Where such contravention relates to an offence specified in clause (b), with imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees. (3) Notwithstanding anything contained in sub-section (1), where any contravention relates to intoxicating drugs, such contravention shall be punishable under section 20 or section 27 of the Narcotics Drugs & Psychotropic Substances Act, 1985, as the case may be. ” 16. It is evident from the provisions of Section 61 of the Excise Act that transportation of any intoxicant shall be punishable with imprisonment for a term, which may extend to three years and with fine upto Rs. 2,00,000/-. The minimum sentence from six months’ to three years’ imprisonment alongwith fine has been prescribed for offences mentioned in clauses (i) to (iv) in proviso to Section 61 (1) of the Excise Act. 17. In present case, respondents Gurmail Singh and Paal Singh have been chargesheeted for transporting liquor without permit, but not for offences mentioned in proviso to Section 61 (1) of the Excise Act. 17. In present case, respondents Gurmail Singh and Paal Singh have been chargesheeted for transporting liquor without permit, but not for offences mentioned in proviso to Section 61 (1) of the Excise Act. No doubt, for the offence committed by respondents Gurmail and Paal Singh, imprisonment may extend to three years and for transporting a huge quantity of 4420 pouches of country liquor without permit, prayer of State may be justifiable to enhance the sentence, but for the reason that only three pouches were sent for chemical examination and there is nothing on record to establish that rest of the pouches were also containing country liquor and for settled position of law in this regard (see judgments rendered in cases titled as Dharam Pal and another versus State of Himachal Pradesh, reported in 2009 (2) Shimla Law Cases, 208; State of H.P. v. Ramesh Chand, reported in Latest HLJ 2007 (HP) 1017 and Joginder Singh v. State of Himachal Pradesh, reported in Latest HLJ 2017 (HP) 118) and also for the fact that the offence was committed in the year 2001, I do not find any plausible reason for enhancement of the sentence after 17 years. 18. No other point raised or urged. For the aforesaid discussion, it cannot be said that learned Trial Magistrate has not appreciated the evidence completely and correctly or the impugned judgment has caused miscarriage of justice or resulted into travesty of justice. Therefore, no ground for interference is made out. Hence, both the appeals are dismissed. Bail bonds furnished by and on behalf of the respondents are discharged. 19. Pending application (s), if any, stands disposed of. Record be sent back.