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Himachal Pradesh High Court · body

2019 DIGILAW 1371 (HP)

State of H. P. v. Roop Lal

2019-09-12

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the State, against, the pronouncement made by the learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P., upon, Criminal Case No. 143-1-07, whereunder, the accused/respondent herein, hence, stood acquitted, for, a charge framed, under, Section 61(1)(a), of, the Punjab Excise Act, as, applicable to the State of H.P. 2. Briefly, stated the facts of the case are that on 6.2.2007, SI Anjani Kumar, ASI Satish Kumar, C. Dinesh Kumar, and, LC Swaran Lata, were present at Swahal, whereat they at about 4.30 p.m., received a secret information that accused had kept liquor in his home without a permit and in case of search; huge quantity of liquor would be recovered. The information was credible and the delay in procuring the search warrant would have led to the destruction of the case property. Witnesses Sohan Lal and Pritam Chand were associated and the search of the house of the accused was conducted in his presence and in the presence of the witnesses during which 8 cardboard boxes were recovered from the house of the accused. These boxes were opened and 7 boxes were found to be containing 12 bottles each of country liquor bearing Mark Una No.1. One box was containing 12 bottles of IMFL bearing Mark Officer's Choice. A permit was demanded for possessing the liquor, however, the accused could not produce any permit. 1 bottle each was taken out from each cardboard box and 1 sample each was taken out of each bottle. Bottles and samples were sealed with seal "SK". Seal impression Ex.PW8/G were taken separately on piece of cloth and seal was handed over to witness Sohan Lal after its use. Bottles Ex. P-1 to P-96 were seized vide seizure memo Ex.PW7/A. Signatures of witnesses Sohan Lal and Pritam Chand were obtained on the seizure memo. The investigations were conducted by PW-8 SI Anjani Kumar, who prep0ared site plan, and, recorded the statements of the witnesses as per their person. The case property was deposited with PW-4 HC Vijay Prakash, who deposited the same in Malkhana and made the entry in the daily diary. Samples were sent by HC Vijay Prakash to CTL, Kandaghat for chemical analysis vide R.C. No. 255/07, through constable C. Sanjeev Kumar, who deposit the same thereat, and, the receipt was handed over to the MHC. The case property was deposited with PW-4 HC Vijay Prakash, who deposited the same in Malkhana and made the entry in the daily diary. Samples were sent by HC Vijay Prakash to CTL, Kandaghat for chemical analysis vide R.C. No. 255/07, through constable C. Sanjeev Kumar, who deposit the same thereat, and, the receipt was handed over to the MHC. The results of Chemical analyst borne in Ex.PW8/E and Ex.PW8/F were issued in which it was opined that the sample of country liquor contained 50% proof alcohol and samples of IMFL contained 75.1 % proof alcohol. 3. On conclusion of the investigations, 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/respondent herein, stood charged, by the learned trial Court, for, his committing, an, offence, punishable, under, Sections 61(1) (a), of, the Punjab Excise Act, as, applicable to the State of H.P. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/ respondent herein. 6. The appellant herein/State, stands aggrieved, by the findings of acquittal, recorded, by the learned trial Court. The Additional Advocate General, has, concertedly, and, vigorously contended, qua the findings of acquittal, recorded by the learned trial Court, standing not, based on a proper appreciation 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 acquittal warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the respondents, has, with considerable force and vigour, contended qua the findings of acquittal, 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. 7. On the other hand, the learned counsel appearing for the respondents, has, with considerable force and vigour, contended qua the findings of acquittal, 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. The learned trial Court had concluded, that, the prosecution, had, failed to establish the apposite complete chain, (a) commencing, from the recovery, of, the liquor, (b) the taking of samples, from, the bulk (c) its deposit in the malkhana concerned, (d) and, thereafter upto the samples being carried, to, the CTL, Kandaghat, (d) and, had insisted, upon, the prosecution hence ensuring, the, adduction, of, proof qua, the, afore requisite completest links, in, the apposite chain, rather emerging, through its examining the witnesses, (e) who handled the case property, at various stages, (f) hence, for overruling, any, inference qua it travelling, in, a tampered condition, and, thereafter, it, in the same condition being produced, before, the learned trial Court. Furthermore, for, the afore wants, of, adduced evidence hence by the prosecution, it also made a conclusion, qua the case property being tampered with, and, reiteratedly the afore conclusion was hinged, upon, the official concerned, who drew, the, samples, from, the bulk or the cache of liquor bottles, seized under, seizure memo Ex.PW7/A, failing to make a deposition qua his depositing, the, samples with MHC concerned, and, thereafter also made a conclusion, that, the samples travelling, in, a tampered or in a spoiled condition, upto the CTL concerned, (g) and, also hence, the reports, of, the chemical analyst, borne in Ex.PW8/E, and, in Ex.PW8/F, rather not appertaining, to, the samples collected, from, the sezied bulk or the cache of liquor, as made, through, seizure memo, borne in Ex.PW7/A. However, for the reasons, to be recorded hereinafter, the afore conclusions are meritless, and, warrant, theirs being straightway rejected, (i) as, the sample nips, drawn from the bulk or the cache of liquor bottles, as stood, seized, under, memo Ex.PW7/A, were dispatched, under, road certificate, borne in Ex.PW7/C, to the CTL Kandaghat, (ii) and, the latter, under, Ex.PW8/E, and, under Ex. PW8/F, recorded, a, firm opinion (iii) qua the contents thereof being of liquor manufactured, for, human consumption. Ex.PW8/E, and, Ex.PW8/F, fail to make any echoings, rather bearing concurrence, vis-a-vis, the afore reason, as, meted by the learned Chief Judicial Magistrate concerned, and, ipso facto, thereupon, it is amenable, for this court, to make an unflinching conclusion, that, the afore assigned reasons, hence, by the learned trial Court, are both conjectural, and, imaginary, (iv) and, also, it is apt for this Court, to, record a conclusion qua the samples, whereon, opinions borne in Ex.PW8/E, and, in Ex.PW8/F, stood drawn, hence, by the CTL, Kandaghat, rather appertaining to the cache, of, liquor seized, under, memo Ex.PW7/A, (v) and, also the prosecution establishing, that, the complete chain, since the recovery, of the cache of liquor, and, upto, an, opinion being rendered, upon, the apposite samples, as stood, carried, through, a validly drawn road certificate, borne in Ex.PW4/C, to, the CTL concerned, (vi) obviously, and, naturally hence being cogently established, and, there being no latitude to record any conclusion, that, there were any tamperings, with, the case property, as, stood, carried through Ex.PW4/C, upto, the CTL concerned. 10. The learned trial Court, had also emphasized, upon, the independent witnesses to seizure memo, borne in Ex.PW7/A, one Sohan Lal, and, one Pritam Chand, resiling from their previous statements, recorded in writing, and, thereupon, made a conclusion, that, the prosecution failing to prove, the, charge against the accused. However, with, both, the afore witnesses, to Ex.PW7/A, during, the course of their respective cross-examination, as, conducted by the learned APP, upon, theirs being declared hostile, rather acquiescing, to, their authentic signatures, hence, being borne thereon, (I) whereupon, the statutory presumption, borne in Sections 91, and, Section 92 of the Indian Evidence Act, interdicts, the, afore independent witnesses to renege, from, the recitals borne, in, seizure memo, as, embodied in Ex.PW7/A, rather, thereupon, the recitals borne therein, are proven. 11. 11. The learned counsel appearing for the respondent/accused, had, contented with vigour, before this Court, that, dehors the afore conclusion, emanating, from the statutory estoppel, borne in Section 91, and, in Section 92, of, the Indian Evidence Act, being visited, upon, the acquiesced admitted signatures, of, the independent witnesses thereto, (i) and, wherethrough, they are interdicted, to renege from the recitals, borne therein, yet rather with the accused, in, the proceedings, drawn, under Section 313 of the Cr.P.C., contesting the existence, of, his signatures, upon, Ex.PW7/A, and, also the recovery, as, made therethrough, (i) hence, it was enjoined, upon, the prosecution to, ensure, the making, of, a comparison, of, his admitted signatures, borne, in proceedings, drawn under Section 313 of the Cr.P.C., before the learned trial Court, with, his disputed signatures, existing, upon, Ex.PW7/A. However, the afore contention, as addressed, before this Court, is, not amenable for acceptance, as, prior to the drawings, of, proceedings, under, Section 313 of the Cr.P.C., the accused visibly failing, despite, the, tendering into evidence of Ex.PW7/A, before the learned trial Court, hence, by the learned APP concerned, rather, to, contest the validity, of, his signatures borne thereon, (I) whereupon, he is estopped, to, contrive any subsequent contest qua, the, validity thereof, nor he is empowered to seek, exculpation, of, his penal liability, merely, for want of the prosecution, ensuring the comparison, of, his disputed signatures, borne in seizure memo Ex.PW7/A, vis-a-vis, his admitted signatures, borne in the proceedings, drawn by the learned trial Court, under, Section 313, of, the Cr.P.C. 12. 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 trial court, hence, suffering from gross perversity or absurdity of mis-appreciation, and, non appreciation of, the, germane evidence on record. 13. Consequently, the instant appeal is allowed, and, the judgment rendered by the learned trial Court, upon, Criminal Case No. 143-1-07, is set aside. Consequently, the accused/respondent herein is convicted for his committing an offence punishable under Section 61(1)(a) of the Punjab Excise Act, as, applicable to the State of H.P. He be produced before this Court on 14th October, 2019, for his being heard, on, the quantum of sentence. Consequently, the accused/respondent herein is convicted for his committing an offence punishable under Section 61(1)(a) of the Punjab Excise Act, as, applicable to the State of H.P. He be produced before this Court on 14th October, 2019, for his being heard, on, the quantum of sentence. JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the State, against, the pronouncement made by the learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P., upon, Criminal Case No. 143-1-07, whereunder, the accused/respondent herein, hence, stood acquitted, for, a charge framed, under, Section 61(1)(a), of, the Punjab Excise Act, as, applicable to the State of H.P. 2. Briefly, stated the facts of the case are that on 6.2.2007, SI Anjani Kumar, ASI Satish Kumar, C. Dinesh Kumar, and, LC Swaran Lata, were present at Swahal, whereat they at about 4.30 p.m., received a secret information that accused had kept liquor in his home without a permit and in case of search; huge quantity of liquor would be recovered. The information was credible and the delay in procuring the search warrant would have led to the destruction of the case property. Witnesses Sohan Lal and Pritam Chand were associated and the search of the house of the accused was conducted in his presence and in the presence of the witnesses during which 8 cardboard boxes were recovered from the house of the accused. These boxes were opened and 7 boxes were found to be containing 12 bottles each of country liquor bearing Mark Una No.1. One box was containing 12 bottles of IMFL bearing Mark Officer's Choice. A permit was demanded for possessing the liquor, however, the accused could not produce any permit. 1 bottle each was taken out from each cardboard box and 1 sample each was taken out of each bottle. Bottles and samples were sealed with seal "SK". Seal impression Ex.PW8/G were taken separately on piece of cloth and seal was handed over to witness Sohan Lal after its use. Bottles Ex. P-1 to P-96 were seized vide seizure memo Ex.PW7/A. Signatures of witnesses Sohan Lal and Pritam Chand were obtained on the seizure memo. The investigations were conducted by PW-8 SI Anjani Kumar, who prep0ared site plan, and, recorded the statements of the witnesses as per their person. Bottles Ex. P-1 to P-96 were seized vide seizure memo Ex.PW7/A. Signatures of witnesses Sohan Lal and Pritam Chand were obtained on the seizure memo. The investigations were conducted by PW-8 SI Anjani Kumar, who prep0ared site plan, and, recorded the statements of the witnesses as per their person. The case property was deposited with PW-4 HC Vijay Prakash, who deposited the same in Malkhana and made the entry in the daily diary. Samples were sent by HC Vijay Prakash to CTL, Kandaghat for chemical analysis vide R.C. No. 255/07, through constable C. Sanjeev Kumar, who deposit the same thereat, and, the receipt was handed over to the MHC. The results of Chemical analyst borne in Ex.PW8/E and Ex.PW8/F were issued in which it was opined that the sample of country liquor contained 50% proof alcohol and samples of IMFL contained 75.1 % proof alcohol. 3. On conclusion of the investigations, 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/respondent herein, stood charged, by the learned trial Court, for, his committing, an, offence, punishable, under, Sections 61(1) (a), of, the Punjab Excise Act, as, applicable to the State of H.P. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/ respondent herein. 6. The appellant herein/State, stands aggrieved, by the findings of acquittal, recorded, by the learned trial Court. The Additional Advocate General, has, concertedly, and, vigorously contended, qua the findings of acquittal, recorded by the learned trial Court, standing not, based on a proper appreciation 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 acquittal warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction. 7. Hence, he contends qua the findings of acquittal warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the respondents, has, with considerable force and vigour, contended qua the findings of acquittal, 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. The learned trial Court had concluded, that, the prosecution, had, failed to establish the apposite complete chain, (a) commencing, from the recovery, of, the liquor, (b) the taking of samples, from, the bulk (c) its deposit in the malkhana concerned, (d) and, thereafter upto the samples being carried, to, the CTL, Kandaghat, (d) and, had insisted, upon, the prosecution hence ensuring, the, adduction, of, proof qua, the, afore requisite completest links, in, the apposite chain, rather emerging, through its examining the witnesses, (e) who handled the case property, at various stages, (f) hence, for overruling, any, inference qua it travelling, in, a tampered condition, and, thereafter, it, in the same condition being produced, before, the learned trial Court. Furthermore, for, the afore wants, of, adduced evidence hence by the prosecution, it also made a conclusion, qua the case property being tampered with, and, reiteratedly the afore conclusion was hinged, upon, the official concerned, who drew, the, samples, from, the bulk or the cache of liquor bottles, seized under, seizure memo Ex.PW7/A, failing to make a deposition qua his depositing, the, samples with MHC concerned, and, thereafter also made a conclusion, that, the samples travelling, in, a tampered or in a spoiled condition, upto the CTL concerned, (g) and, also hence, the reports, of, the chemical analyst, borne in Ex.PW8/E, and, in Ex.PW8/F, rather not appertaining, to, the samples collected, from, the sezied bulk or the cache of liquor, as made, through, seizure memo, borne in Ex.PW7/A. However, for the reasons, to be recorded hereinafter, the afore conclusions are meritless, and, warrant, theirs being straightway rejected, (i) as, the sample nips, drawn from the bulk or the cache of liquor bottles, as stood, seized, under, memo Ex.PW7/A, were dispatched, under, road certificate, borne in Ex.PW7/C, to the CTL Kandaghat, (ii) and, the latter, under, Ex.PW8/E, and, under Ex. PW8/F, recorded, a, firm opinion (iii) qua the contents thereof being of liquor manufactured, for, human consumption. Ex.PW8/E, and, Ex.PW8/F, fail to make any echoings, rather bearing concurrence, vis-a-vis, the afore reason, as, meted by the learned Chief Judicial Magistrate concerned, and, ipso facto, thereupon, it is amenable, for this court, to make an unflinching conclusion, that, the afore assigned reasons, hence, by the learned trial Court, are both conjectural, and, imaginary, (iv) and, also, it is apt for this Court, to, record a conclusion qua the samples, whereon, opinions borne in Ex.PW8/E, and, in Ex.PW8/F, stood drawn, hence, by the CTL, Kandaghat, rather appertaining to the cache, of, liquor seized, under, memo Ex.PW7/A, (v) and, also the prosecution establishing, that, the complete chain, since the recovery, of the cache of liquor, and, upto, an, opinion being rendered, upon, the apposite samples, as stood, carried, through, a validly drawn road certificate, borne in Ex.PW4/C, to, the CTL concerned, (vi) obviously, and, naturally hence being cogently established, and, there being no latitude to record any conclusion, that, there were any tamperings, with, the case property, as, stood, carried through Ex.PW4/C, upto, the CTL concerned. 10. 10. The learned trial Court, had also emphasized, upon, the independent witnesses to seizure memo, borne in Ex.PW7/A, one Sohan Lal, and, one Pritam Chand, resiling from their previous statements, recorded in writing, and, thereupon, made a conclusion, that, the prosecution failing to prove, the, charge against the accused. However, with, both, the afore witnesses, to Ex.PW7/A, during, the course of their respective cross-examination, as, conducted by the learned APP, upon, theirs being declared hostile, rather acquiescing, to, their authentic signatures, hence, being borne thereon, (I) whereupon, the statutory presumption, borne in Sections 91, and, Section 92 of the Indian Evidence Act, interdicts, the, afore independent witnesses to renege, from, the recitals borne, in, seizure memo, as, embodied in Ex.PW7/A, rather, thereupon, the recitals borne therein, are proven. 11. The learned counsel appearing for the respondent/accused, had, contented with vigour, before this Court, that, dehors the afore conclusion, emanating, from the statutory estoppel, borne in Section 91, and, in Section 92, of, the Indian Evidence Act, being visited, upon, the acquiesced admitted signatures, of, the independent witnesses thereto, (i) and, wherethrough, they are interdicted, to renege from the recitals, borne therein, yet rather with the accused, in, the proceedings, drawn, under Section 313 of the Cr.P.C., contesting the existence, of, his signatures, upon, Ex.PW7/A, and, also the recovery, as, made therethrough, (i) hence, it was enjoined, upon, the prosecution to, ensure, the making, of, a comparison, of, his admitted signatures, borne, in proceedings, drawn under Section 313 of the Cr.P.C., before the learned trial Court, with, his disputed signatures, existing, upon, Ex.PW7/A. However, the afore contention, as addressed, before this Court, is, not amenable for acceptance, as, prior to the drawings, of, proceedings, under, Section 313 of the Cr.P.C., the accused visibly failing, despite, the, tendering into evidence of Ex.PW7/A, before the learned trial Court, hence, by the learned APP concerned, rather, to, contest the validity, of, his signatures borne thereon, (I) whereupon, he is estopped, to, contrive any subsequent contest qua, the, validity thereof, nor he is empowered to seek, exculpation, of, his penal liability, merely, for want of the prosecution, ensuring the comparison, of, his disputed signatures, borne in seizure memo Ex.PW7/A, vis-a-vis, his admitted signatures, borne in the proceedings, drawn by the learned trial Court, under, Section 313, of, the Cr.P.C. 12. 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 trial court, hence, suffering from gross perversity or absurdity of mis-appreciation, and, non appreciation of, the, germane evidence on record. 13. Consequently, the instant appeal is allowed, and, the judgment rendered by the learned trial Court, upon, Criminal Case No. 143-1-07, is set aside. Consequently, the accused/respondent herein is convicted for his committing an offence punishable under Section 61(1)(a) of the Punjab Excise Act, as, applicable to the State of H.P. He be produced before this Court on 14th October, 2019, for his being heard, on, the quantum of sentence.