JUDGMENT : Sandeep Sharma, J. By way of instant appeal, challenge has been laid to judgment dated 1.11.2008 passed by learned Judicial Magistrate 1st Class, Jawali, District Kangra, Himachal Pradesh in Criminal Case No. 89-III/2006, whereby learned Court below held the respondent-accused (hereafter, 'accused') not guilty of the offences punishable under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh (hereafter, 'Act'), in case FIR No. 156/05 and accordingly, acquitted him. 2. Having heard learned Additional Advocate General and perused the evidence, be it ocular or documentary, led on record by the prosecution vis--vis reasoning assigned by the learned Court below while acquitting the accused, this Court is not persuaded to agree with Ms. Ritta Goswami, learned Additional Advocate General that the learned Court below has failed to appreciate the evidence in its right perspective, rather, this Court finds that the prosecution has miserably failed to prove its case beyond reasonable doubt, as such, learned Court below rightly acquitted the accused of the charge framed against him under S.61(1)(a) of the Act. As per story of the prosecution, Police party headed by H.D. Pushap Arun alongwith other Police officials was on patrolling duty on 21.9.2005 at Jagnoli, where after having received secret information, they raided the shop of the accused and allegedly recovered 180 bottles of country liquor mark "Lal Quila". After completion of codal formalities, Police sent Rukka Ext. PW-3/B to the Police Station for lodging FIR. Accordingly, on the basis of aforesaid Rukka, Ext. PW-3/B, FIR, Ext. PW-4/A came to be registered against the accused. After completion of investigation, Police presented Challan in the competent Court of law, who being satisfied that prima facie case exists against the accused, charged him with offence punishable under S.61(1)(a) of the Act, to which he pleaded not guilty and claimed trial. 3. Prosecution examined as many as six witnesses to prove its case but careful perusal of the depositions made by these witnesses nowhere suggest that the prosecution was able to prove its case beyond all reasonable doubt. Accused, while getting his statement recorded under S.313 CrPC, denied the case of the prosecution in toto, though he led no evidence in his defence. Accused, while getting his statement recorded under S.313 CrPC, denied the case of the prosecution in toto, though he led no evidence in his defence. As has been noticed herein above, as per own case of the Police, after having received secret information, they raided the shop of the accused, which was situated in the middle of the Bazaar, but, interestingly, in the case in hand, Police party failed to associate witnesses, if any, from the bazaar, rather, they associated person namely Ram Pal, PW-2, who nowhere supported the case of the prosecution. PW-2 denied the case of the prosecution in toto, as such, was declared hostile, but even cross-examination conducted upon this witness, nowhere proves the case of the prosecution. 4. Apart from PW-2, all witnesses are police officials, as such, not much reliance can be placed upon their version, especially in view of statement of PW-2, who has specifically denied that raid, if any, was conducted in his presence and 180 bottles of country liquor mark "Lal Quila" were recovered from the exclusive and conscious possession of the accused. 5. True it is that the version put forth by the official witnesses cannot be brushed aside merely on account of non-association of the independent witnesses but, in the case at hand, PW-2, Ram Pal, independent witness associated at the time of raid, seriously disputed the factum with regard to raid and recovery, if any, made thereafter by the patrolling party, as such, story put forth by the other police witnesses has become highly improbable and doubtful. 6. Leaving everything aside, it is not understood that what prevented the Police from associating independent witnesses from the locality, especially when the shop in question was situate in the thickly populated area. 7. There is another aspect of the matter that though the police allegedly took into possession 180 bottles of country liquor mark "Lal Quila", but sent only three bottles for chemical examination, as is evident from Ext. PW-3/D. Moreover, PW-5, H.C. Ashok Kumar has also admitted the factum with regard to sending of only three bottles out of 180 bottles, for chemical examination. Since only three bottles out of 180 bottles came to be sent for chemical analysis/examination, recovery, if any, of three bottles is proved in accordance with law. PW-3/D. Moreover, PW-5, H.C. Ashok Kumar has also admitted the factum with regard to sending of only three bottles out of 180 bottles, for chemical examination. Since only three bottles out of 180 bottles came to be sent for chemical analysis/examination, recovery, if any, of three bottles is proved in accordance with law. There is no report, if any, qua the contents of remaining 177 bottles, as such, there is nothing to suggest that the remaining 177 bottles also contained liquor. 8. 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. 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 & 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. 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." 9. 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. 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." 10. In view of the aforesaid discussion and law laid down by this Court, recovery if any, from the accused can be said to be of three bottles only and as such, on this count, entire recovery is vitiated which renders the whole story of the prosecution unreliable and untrustworthy. 11. In view of the aforesaid discussion and law laid down by this Court, recovery if any, from the accused can be said to be of three bottles only and as such, on this count, entire recovery is vitiated which renders the whole story of the prosecution unreliable and untrustworthy. 11. 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 appears to be based upon correct appreciation of evidence adduced on record. 12. 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. 13. Case property be disposed of in accordance with law.