Kuldeep Singh vs State of H.P.

Surinder Singh, J.—Heard and gone through the record of the case.

The instant revision petition has been directed by the Petitioner feeling aggrieved and dissatisfied by judgments of both the Courts below, whereby he has been convicted u/s 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh and sentenced to under go simple imprisonment for a period of six months and pay a fine of Rs. 1000/-, with the default clause allegedly for keeping in his possession 35 litres of illicit liquor in a Jerican.

As per the case of the prosecution on 18th December 1996 at about 6.10 A.M., Inspector SHO Kashmiru Ram of Police Station, Kot-Kehloor was on patrol duty in the area of village Majari falling within the jurisdiction of his police station. He was accompanied by PW3 Constable Amar Singh and PW5 H.C. Prakash Chand.

The Petitioner was found carrying a Jerican. On seeing the police, he tried to escape. The said Inspector overpowered him.

On checking Jerican Ex.P1, it was found containing illicit liquor. A sample nip was separated and sealed with seal impression ''A'' and the remaining quantity of the Jerican was sealed with the same seal and the case property was taken into possession vide memo Ext.PW1/A.

The case property was allegedly deposited with the MHC in the Police Station and nip was sent for the analysis to CTL, Kandaghat, which tested positive.

After completing the challan, it was presented in the Court for the trial of the Petitioner for the offence, as aforesaid.

The Petitioner pleaded not guilty and claimed trial. Prosecution led its evidence and the Petitioner was also examined u/s 313 Code of Criminal Procedure His case was denial simplicitor. No evidence in defence was led but at the end of the trial he was convicted and sentenced, as aforesaid.

Feeling aggrieved, he filed an appeal before the Court of Sessions which was also dismissed.

The learned Counsel for the Appellant argued that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective and the link evidence is not proved, therefore, the judgment of learned Sessions Judge affirming the conviction and sentence passed by the learned trial Court is not sustainable.

PW4 Inspector Kashmiru Ram although stated that the Petitioner was found carrying the illicit liquor in the Jerican Ex.P1 and its sample was separated in a nip and sealed but it is no where stated that the case property was deposited with MHC PW1 Summiter Singh in this police station. Even, Summitter Singh aforesaid did not say who deposited the case property with him. Further he stated that on 30th January 1997 he sent the sample nip for its chemical examination to CTL, Kandaghat through C. Bhup Singh (PW2) but he did not state that he had also sent sample of seal used by the Investigating Officer on the spot alongwith the police docket. Even there is no reference about the road certificate against which the article/sample is taken to the Laboratory.

PW2 C. Bhup Singh although stated that the sample nip was having the seal impression ''A'' and he deposited it on the same day in the Laboratory but even his testimony is devoid of any reference about taking of sample of seal and number of the road certificate against which it was taken.

The first page of the document Ext.PW4/D against which the sample appears to have been sent makes the reference that additional SHO Anant Ram had drawn the sample from the malkhanna on 28th January 1997 for chemical examination which according to the MHC was sent on 30th January 1997 through C. Bhup Singh. Anant Ram was not examined. Therefore, there is no evidence to this effect that w.e.f. 28th January 1997 where the sample nip was kept up to 4 30th January 1997 before having been entrusted to PW2 Bhup Singh. The entry about deposit of the case property into the register maintained in the malkhana is neither produced nor proved.

Therefore, in the above circumstances, it cannot be said that link in the instant case is complete and the report of the Chemical Analyst Ext.PW4/D in no way is connected with the stuff recovered from the Petitioner. In view of the situation, the learned trial Court could not have convicted and sentenced the Petitioner and this important fact also seems to have escaped the notice of the learned Sessions Judge while deciding the appeal.

After examining the legality, propriety and correctness of the impugned judgments of the Courts below, I do not find it legally sustainable, as such, the revision petition is allowed. Consequently, the conviction and sentence passed by the learned trial Court, up-held by the learned Sessions Court in Criminal Appeal No. 2/2000 on 8.7.2003 is set aside. Consequently, the Petitioner stands acquitted.

Bail-bonds furnished by the Petitioner also stands discharged. The revision petition stands disposed of.