JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with judgment dated 29.12.2008 passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, Himachal Pradesh in Excise Case No. 6-III-2008, whereby respondent-accused (hereinafter, 'accused') came to be acquitted of the offences punishable under S. 61(1)(a) of Punjab Excise Act (as applicable to the State of Himachal Pradesh) (hereinafter, 'Act'), appellant-State has approached this Court in the instant proceedings, praying therein for conviction of the accused after setting aside judgment of acquittal recorded by learned Court below. 2. In nutshell, case of the prosecution, as emerges from the record is that on 8.6.2007, Police party, after having received secret information that the accused, who runs a Biri and Cigarette shop at Bani, illegally sells liquor, formed raiding party by associating independent witnesses namely Prakasho Devi, Ward Member (PW-2) and Sanjay Kumar, Shopkeeper (PW-3) and conducted search of the house of accused. During search, police allegedly recovered 4 cartons of "Big Boss" whisky, 8 cartons of "Everyday" whisky and 2 cartons of "Red Rose" whisky, total 168 bottles from the house of accused, who failed to produce any permit /license for the same. Police extracted two bottles from two cartons of "Big Boss" whisky, three bottles from three cartons of "Everyday" whisky and two bottles from two cartons of "Red Rose" whisky for chemical analysis and sealed the samples as well as remaining bulk with seal impression, "K" and took the same into possession. Seal impression "K" was taken on piece of cloth, Ext. PX. Site plan was prepared and samples were sent for chemical analysis. Statements of the witnesses including independent witnesses Prakasho Devi and Sanjay Kumar were recorded. Police presented Challan in the competent Court of law against the accused for the commission of offence punishable under S.61(1)(a) of the Act, to which accused pleaded not guilty and claimed trial. 3. Prosecution, with a view to prove its case, examined as many as six witnesses, whereas, accused in his statement recorded under S.313 CrPC, denied the case of the prosecution in toto and claimed himself to be innocent. However, accused did not lead any evidence despite opportunity having been afforded for the purpose. 4. Learned trial Court, on the basis of evidence collected on record by the prosecution, vide judgment dated 29.12.2008, held accused not guilty of having committed offences punishable under S.61(1)(a) of the Act and acquitted him. However, accused did not lead any evidence despite opportunity having been afforded for the purpose. 4. Learned trial Court, on the basis of evidence collected on record by the prosecution, vide judgment dated 29.12.2008, held accused not guilty of having committed offences punishable under S.61(1)(a) of the Act and acquitted him. In the aforesaid background, appellant-State has approached this Court, praying therein for setting aside judgment of acquittal and convicting the accused. 5. Having heard learned counsel for the parties and perused the material available on record, vis- -vis reasoning assigned by learned Court below in the impugned judgment of acquittal, this court is not persuaded to agree with Mr. Kunal Thakur, learned Deputy Advocate General that impugned judgment of acquittal is not based upon proper appreciation of the evidence, rather, this court finds from the record that none of the prosecution witnesses supported the case of prosecution and as such, impugned judgment of acquittal rightly came to be recorded in favour of the accused. Though, in the case at hand, prosecution examined as many as six witnesses but statements of independent witnesses i.e. Prakasho Devi and Sanjay Kumar, allegedly associated by investigating agency, during raid, are material for determining the guilt, if any, of the accused. Both these independent witnesses, while deposing before the learned Court below as PW-2 and PW-3, respectively nowhere supported prosecution case and were declared hostile. 6. Pw-2 Prakasho Devi deposed that she does not remember the date of alleged incident as she is illiterate. She stated that she does not know anything about the case. She further stated that she was asked to put her signatures and as such, she put the same. Though this witness was declared hostile, however, cross-examination conducted on this witness nowhere suggests that the prosecution was able to extract anything advantageous to its case. This witness categorically denied the averments with regard to search of the house of the accused and recovery of liquor in her presence. She denied the portion 'A' to 'A' of the statement recorded by the Police. 7. Pw-3 Sanjay Kumar stated that he does not remember the date but about one year back, Police obtained his signatures encircled with 'A' in Ext. PW-1/A. This witness was also declared hostile but even in his cross-examination the prosecution was unable to extract anything advantageous to its case. 7. Pw-3 Sanjay Kumar stated that he does not remember the date but about one year back, Police obtained his signatures encircled with 'A' in Ext. PW-1/A. This witness was also declared hostile but even in his cross-examination the prosecution was unable to extract anything advantageous to its case. He also denied the suggestion put to him that the Police conducted search of house of accused in his presence and in the presence of Prakasho Devi and allegedly recovered liquor from the house of the accused. In his cross-examination, this witness denied that he is related to the accused. He further admitted that there are 200-300 shops in the Bazaar and 400-500 persons used to remain present therein. He further admitted that the Police obtained his signatures on a blank paper. 8. Io of the case, Inspector Jagdish Kumar, appeared as PW-4 and gave a narration of the investigation. He admitted in his cross-examination that the seal of the bags of the case property had been tampered with. He also admitted that there are 100-150 shops at Bani Bazaar. He stated that he formed raiding party at Mehre Bazaar 9. Careful perusal of the statements having been made by aforesaid material prosecution witnesses certainly creates doubt and suspicion with regard to genuineness and correctness of the story put forth by the prosecution. In the case at hand, so called independent witnesses associated by the investigating agency at the time of alleged raid, have seriously disputed the factum with regard to search and recovery of liquor from the house of accused. PW-3 Sanjay Kumar and PW-4 Inspector Jagdish have categorically admitted that there are 200-300 shops at Bani Bazaar but it is not understood that why the investigating agency failed to associate independent witnesses from the Bani Bazaar or the locality concerned, especially when they were available in abundance. 10. Interestingly, in the cross-examination conducted upon the independent witnesses i.e. PW-2 and PW-3, no suggestion ever came to be put to them that they were falsely deposing in favour of accused with a view to save him, as such, version put forth by these witnesses cannot be brushed aside easily. 10. Interestingly, in the cross-examination conducted upon the independent witnesses i.e. PW-2 and PW-3, no suggestion ever came to be put to them that they were falsely deposing in favour of accused with a view to save him, as such, version put forth by these witnesses cannot be brushed aside easily. NO doubt, mere non-association of independent witnesses may not be a ground to doubt story of the prosecution, but in the case at hand, so called independent witnesses i.e. PW-2 and PW-3, associated by investigating agency have also not supported prosecution, which fact certainly compels this Court to agree with learned counsel for the accused that the possibility of false implication of the accused in the case cannot be ruled out. Had the investigating agency associated witnesses from the locality or the Bazaar, version put forth by PW-2 and PW-3, could have been further verified/ascertained. 11. Leaving everything aside, it is an admitted case of the prosecution that only seven bottles out of total 168 bottles allegedly recovered from the house of accused, were drawn as sample and sent for examination, as such, content is only proved qua seven bottles in all, meaning thereby, recovery, of seven bottles only is proved against the accused, whereas all the 168 bottles allegedly recovered from the house of the accused, were required to be sent for chemical examination, but in the instant case, only seven bottles were sent for chemical examination as such the whole of the recovery is vitiated. 12. In this regard reliance is placed upon the judgment passed by our own High Court in "Surender Singh. V. State of H.P., (2013) 2 LatestHLJ 865", which reads as under:- "26. In the instant case, it be also noticed that there is yet another major flaw in the investigation by the police. Assuming that the contraband was actually recovered by the police party, police did not take samples from all the boxes. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes were sealed; from outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. None of these witnesses have deposed that the remaining boxes were sealed; from outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character. 27. In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, (2003) CriLJ 1346; State of H.P. versus Ramesh Chand, 2007 2 LatestHLJ 1017; Dharam Pal and another versus State of Himachal Pradesh, (2009) 2 ShimLC 208 ; and State of Himachal Pradesh versus Kuldeep Singh and others,2010 2 HimLR 825, acquitted the accused, as prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes. 28. As per version of PW-1, outside the boxes 'Sirmour No.1' was printed which version stands denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were in fact containing liquor. Quantity of the remaining bottles of the boxes from which samples were drawn has also not been proved to be liquor. These aspects have not been considered by the Courts below. The cumulative effect is that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt and as such judgments of the Courts below are not sustainable in law." 13. Reliance is also placed on the judgment passed by this Court State of HP v. Jagjit Singh, 2008 LatestHLJ 919 (HP), wherein this Court has observed in paras 6 and 7 as under:- "6. At the very outset, I would like to say that neither the non-compliance of sub-section (6) of Section 100 of the Code of Criminal Procedure will render the search illegally nor the respondent can be acquitted on this sole ground. However, in the instant case the regrettable feature is that as per the case of the prosecution 72 pouches of country liquor of "Gulab" brand country liquor containing 180 ml. each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml. However, in the instant case the regrettable feature is that as per the case of the prosecution 72 pouches of country liquor of "Gulab" brand country liquor containing 180 ml. each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml. out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst. 7. There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the respondent also contain the country liquor more than the permissible quantity without the permit or licence. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious possession of the licit liquor in excess of the prescribed limit." 14. In view of the aforesaid discussion and law laid down by the Hon'ble Apex Court as well as this Court, there are major flaws in the investigation of the prosecution and prosecution story does not appear to be believable. 15. Consequently, in view of detailed discussion made herein above, this Court sees no reason to differ with the judgment of acquittal recorded by the learned Court below, which otherwise appears to be based upon correct appreciation of evidence adduced on record. 16. Accordingly, the present appeal is dismissed. Judgment passed by the learned trial Court is upheld. Bail bonds, if any, furnished by the accused are discharged. 17. Case property, if not destroyed, be destroyed forthwith.