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2019 DIGILAW 1122 (HP)

STATE OF H. P. v. SURINDER KUMAR

2019-08-07

VIVEK SINGH THAKUR

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ORDER : 1. This appeal has been preferred by the State against judgment dated 11.1.2008 passed by learned Additional Sessions Judge, Solan, in Cr. Appeal No. 3-NL/10 of 2007, titled Surinder Kumar vs. State of H.R whereby judgment of conviction and sentence passed by the trial Court against the respondent, in case FIR No. 202 of 2000 dated 29.12.2000 registered in P.S. Barotiwala under Section 61 (l)(a) of Punjab Excise Act, as applicable to the State of H.R has been reversed and the respondent has been acquitted. 2. The Investigation Agency was set in motion on the basis of statement (Ext.P-1) of PW1 S.K. Pundir, Excise and Taxation Officer, on the basis of which FIR was registered. As per prosecution case, on checking by the officials of Excise and Taxation Department with the help of police, total 2875 bottles of English liquor with label of "Society Whisky" were recovered from liquor vend M/s Saini and Company, wherein present respondent is alleged to have been working as Salesman. 3. Besides present respondent, four other persons, who were partners of M/s Saini and Company, were also made the accused in the criminal case under Section 61(l)(a) of Punjab Excise Act and Sections 420 and 120-B IPC and subjected to trial. 4. The trial Court, after considering the evidence on record, has acquitted four co-accused namely Bhupinder Saini, Amit Zindal, Raman Kumar and Sanjeev Kumar of the charged offences, however, in respect of respondent Surinder Kumar, trial Court had acquitted him under Section 420 and Section 120-B IPC but had convicted and sentenced him under Section 61(l)(a) of Punjab Excise Act. 5. In appeal preferred by respondent Surinder Kumar, learned Sessions Judge, Solan, vide impugned judgment, has acquitted him for want of sufficient evidence to substantiate commission of offence by him as alleged. This judgment has been assailed in the present appeal. 6. So far as findings of the trial Court that no case is made out under Sections 420 and 120-B IPC, and as a result thereof, acquittal of co-accused along with respondent is concerned, the same has not been assailed by appellant/State and as such, those findings have attained finality. Now only issue with respect to commission of offence by respondent/accused under Section 61(l)(a) of the Act is in issue in the present appeal. 7. I have heard Mr. Now only issue with respect to commission of offence by respondent/accused under Section 61(l)(a) of the Act is in issue in the present appeal. 7. I have heard Mr. Desh Raj Thakur learned Additional Advocate General for the State as well as Mr.O.C.Sharma, Advocate, for the respondent and have also gone through the record. 8. Respondent has been acquitted by learned Additional Sessions Judge on the grounds that there is no evidence on record to establish that liquor vend M/s Saini and Company was existing on the spot, 2875 bottles of liquor were recovered from the said liquor vend and respondent Surinder Kumar was salesman in the said liquor vend at the relevant point of time. 9. Prosecution has examined 14 witnesses to establish its case and after recording of statement under Section 313 Cr.P.C, respondent has also examined one witness Joginder Singh as DW1, who, in fact, was cited by prosecution itself in its challan as a witness to the recovery. 10. It is an admitted fact that Excise Department issues licence for selling liquor and further not only licence but site plan of liquor vend along with name of Salesman is also approved by the Excise Department. In the present case, though licence issued in favour of M/s Saini and Company has been placed on record, but site plan of liquor vend where from the bottles were claimed to be recovered has not been brought on record nor there is any evidence to establish that respondent Surinder Kumar was salesman of M/s Saini and Company at the relevant point of time. 11. PW1 Shri S.K. Pundir, Excise and Taxation Officer, has admitted that salesmen deputed on liquor vends are approved by Excise Department but he has expressed his ignorance as to whether Surinder Kumar was Salesman of M/s Saini and Company or not. PW9 Jai Singh Excise and Taxation Inspector, has deposed that he along with other officials of the Excise Department had gone to check the liquor vend of M/s Saini and Company at Kunjahal but he, no-where in his deposition, has mentioned that accused/respondent Surinder Kumar was present at the vend at the relevant point of time. He has also admitted that Salesmen of vend are approved by the Department and their list is retained in the Department, but no such list has been brought on record. 12. He has also admitted that Salesmen of vend are approved by the Department and their list is retained in the Department, but no such list has been brought on record. 12. There were two witnesses to the alleged recovery of liquor, one of them has been examined as PW2 Balbir Singh. Though he has stated that he had witnessed the recovery of liquor but he also, like PW9 Jai Singh, has not named Surinder Kumar as a person from whom the recovery of liquor was made. Another witness Joginder Singh to the recovery was not examined by prosecution, but he was examined by respondent/accused as DW1, who bringing another tale of story, has also shattered the story of prosecution with respect to recovery of liquor with such sketchy evidence with respect to involvement of respondent, it cannot be said with certainty that it was respondent Surinder Kumar and only Surinder from whose possession alleged recovery of liquor was effected. 13. Even if it is considered that Surinder Kumar was Salesman in the vend wherefrom liquor has been claimed to be recovered, then also it is not established that it was recovered from his possession or it was provided/stocked by licencee for sale and in such situation, licencees were definitely responsible for commission of such offence. But State has not assailed acquittal of licencee. In given facts and circumstances, non-filing of appeal against acquittal of co-accused is fatal for the prosecution. 14. From the evidence on record, I find that learned Additional Sessions Judge has appreciated the evidence completely and correctly in right perspective and there is nothing on record to establish contrary to the findings returned by learned Additional Sessions Judge. There is no illegality, irregularity or perversity in the impugned judgment and therefore, no interference is warranted. 15. Accordingly appeal is dismissed. Bail bonds stand discharged. Record of the trial Court be sent back forthwith. Pending application(s), if any, also stands disposed of.