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2018 DIGILAW 974 (HP)

State of Himachal Pradesh v. Lal Singh

2018-05-24

AJAY MOHAN GOEL

body2018
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the State has challenged the judgment passed by the Court of learned Judicial Magistrate 1st Class, Kandaghat, District Solan, H.P. in Criminal Case No. 40/3 of 2007 dated 1.10.2008, vide which learned trial court has acquitted the present respondent for commission of offence punishable under Section 61(1)(14) of the Punjab Excise Act, 1914 as applicable to the State of H.P. and Sections 181 and 196 of the Motor Vehicles Act. 2. The case of the prosecution, in brief, was that on 31.3.2007 ASI Rupender Kumar along with other police personnel was on patrolling duty at around 4:30 a.m. when one Maruti car bearing registration No. HP-51-1723 came from Solan side, which was stopped by the said police party. When the said vehicle was checked, 08 cartons of country liquor Mark Suroor, i.e. 96 bottles in all each measuring 750 ML were recovered. Driver disclosed his name as Lal Singh. He failed to produce any permit or licence and in these circumstances, case was registered under Section 61(1(14) of the Punjab Excise Act as applicable to the State of H.P. Two bottles from each carton were sealed for the purposes of chemical test. The accused was further found driving the car without driving licence and without Insurance and therefore, case was also registered against the accused punishable under Section 181 and 196 of the Motor Vehicles Act. 3. After the completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for commission of offence punishable under Section 61(1) (14) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh, as also under Sections 181 and 196 of the Motor Vehicles Act, to which he pleaded not guilty and claimed trial. 4. Learned trial court vide its judgment dated 1.10.2008 acquitted the accused for commission of offence punishable under Section 61(1)(14) of the Punjab Excise Act, 1914 as applicable to the State of H.P. and Sections 181 and 196 of the Motor Vehicles Act by holding that the prosecution had failed to bring home the guilt of the accused beyond all reasonable doubt. 5. Feeling aggrieved by the judgment so passed by learned trial court, the State has filed this appeal. 6. 5. Feeling aggrieved by the judgment so passed by learned trial court, the State has filed this appeal. 6. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned court below. 7. In order to prove its case, prosecution, in all, examined six witnesses. 8. HC Veda Nand, who entered the witness box as PW-1 was a part of the raiding party. Similarly, PW-2 Constable Jitender Kumar was also a part of the raiding party and he also took the ruqua from the spot to the police station, on the bass of which FIR was registered. PW-3 is MHC Sohan Lal with whom the case property was deposited. PW-4 ASI Rupinder Kumar is the Investigating Officer, who has deposed the mode and manner in which as per the prosecution the vehicle in issue was apprehended and the events that took place after the apprehension of the vehicle leading to the alleged recovery of illicit liquor from the accused. PW-5 HC Harish Kumar has deposited the case property at CTL, Kandaghat. PW-6 Davinder Chauhan was associated with the investigation and he deposed about the handing over of vehicle in question on Supardari to one Sh. Lal Singh. 9. Undisputedly, as is the case of the prosecution, the vehicle was allegedly apprehended though at around 4:30 a.m. on National Highway 22. It has come in the cross examination of PW-4 Rupinder Kumar that the spot was just 2½ kilometers from Kandaghat. Despite this, it is surprising that the Investigating Officer did not associate any independent witness with the process of search and seizure. The factum of non association of any independent witness has been admitted by the said prosecution witness in his cross examination. This court is not oblivious to the fact that it is not as if the case of the prosecution cannot be proved on the strength of the testimony of police witness/official witness but then if the association of any independent witness was possible in the course of search and seizure and the same was not done by the police, then it certainly raises doubts over the case of the prosecution and the onus is on the prosecution to dispel said doubts. 10. 10. Again coming back to the facts of this case, taking into consideration that the alleged recovery of illicit liquor from the vehicle driven by the accused was made in close vicinity to Kandaghat which is a reasonably inhabited area, it is not understood as to why no independent witness was associated during the course of investigation. In fact it is not the case of the prosecution that despite efforts, independent witness could not be associated. Records demonstrate that Investigating Officer rather made no effort whatsoever to join independent witness in the course of investigation. This shrouds the case of the prosecution with suspicion. Now incidentally, it is not in dispute that the vehicle from which the illicit liquor was allegedly recovered from the possession of the accused does not belongs to the accused. This vehicle was registered in the name of Rajinder Verma. How was the accused in possession of the vehicle and under what circumstances he was plying the same, could have been best explained from the testimony of the owner of the vehicle, but surprisingly the owner has not been examined by the prosecution in the witness box. All these facts coupled with other contradictions in the testimony of prosecution witnesses have been taken note of by the learned trial court in para 11 of the judgment. Record demonstrates that prosecution was not able to prove its case against the accused beyond reasonable doubt. Non association of independent witness though independent witness could have been easily associated if any efforts in this regard had been made by the police; Non association of the actual owner of the vehicle in the course of investigation coupled with other contradictions in the case of the prosecution do not warrant the conviction of the accused for the offenses alleged against him. Now when the very factum of the accused having been found in possession of vehicle carrying illicit liquor has not been proved by the prosecution, it cannot be said that the case against accused stood proved under Sections 181 and 196 of the Motor Vehicles Act. 11. Besides this, a perusal of the judgment passed by the learned trial court demonstrates that said Court after taking into consideration the entire evidence on record and after correct appreciation of the same has returned the findings of acquittal in favour of the accused. 11. Besides this, a perusal of the judgment passed by the learned trial court demonstrates that said Court after taking into consideration the entire evidence on record and after correct appreciation of the same has returned the findings of acquittal in favour of the accused. It is settled law that until and unless a judgment of acquittal is perverse, appellate court should not normally interfere with the same. Therefore, as there is no infirmity with the judgment of acquittal passed by the learned trial court, this Court while concurring with the findings so returned by the learned trial court, dismisses this appeal being devoid of merit. Pending miscellaneous applications, if any, also stands disposed of.