State of Himachal Pradesh vs Khub Ram

Surinder Singh, J.—Challenge in this appeal is to the acquittal of the Respondent for the offence punishable u/s 61(1)(a) of the Punjab Excise Act, as applicable to Himachal Pradesh, allegedly for keeping in possession 11/2 bottle of illicit liquor.

Heard and gone through the record.

The prosecution case, in brief, can be stated thus. On 9.4.1999 at about 6.45 p.m. PW8 ASI Parkash Chand along with Constables Lalman, Ravinder Singh and Brij Lal, was present at ''Ghangal Khad'' near BBMB office, Sundernagar. They spotted the Respondent who, on seeing the police tried to escape. On getting suspicious, he was apprehended and PW8 ASI Parkash Chand conducted the search of the bag to which the Respondent was carrying and recovered 11/2 bottle of illicit liquor. The said police Officer took two samples from the recovered quantity in two separate nips, which were sealed with seal impression of English alphabet "A". The remaining quantity was also sealed with the same seal. The case property was taken into possession vide memo Ext. PA. Sample of seal was also alleged to have been taken on separate piece of cloth. Later, it was deposited with the police Malkhana from where two samples taken on the spot sent for analysis to CTL, Kandaghat through PW4 Constable Bansi Lal. As per report Ext.PW8/E, both the samples were found to be of illicit liquor. After completion of the investigation, Challan was presented in the Court for the trial of the Respondent. He was accordingly charge sheeted. He denied his guilt and claimed trial.

To prove its case, prosecution examined its witnesses and the Respondent was also examined u/s 313 of the Code of Criminal Procedure. His case was denial simplicitor and he pleaded innocence, however no evidence in defence was led by him.

On the scrutiny of the evidence, I find that the link evidence in the present case is not complete. Investigating Officer, ASI Parkash Chand (PW8) did not make even a fleeting reference as to where the case property was kept and deposited. Even the seal which was used by him has not been entrusted to any other witness. Although, PW2 Bhola Shankar stated that on 9.4.21999 ASI Parkash Chand had deposited the case property in Police Post, Colony, which fact as already stated above, has not been stated by the Investigating Officer. Even PW2 did not say why it was deposited in Police Post and not in the Malkhana of Police Station which was only 3-4 kilometers. He also did not make the reference of depositing the sample of seal. It is not understood as to how the case property reached Police Station, Sundernagar. In order to substantiate his version neither the abstract of Malkhana register nor Road Certificate against which the case property has been sent through Constable Bansi Lal did find the light of the day during the trial of the case. Even PW6 Brij Lal does not make any reference of the sample of seal alleged to have been brought to the Malkhana of Police Station, Sundernagar along with the case property which is alleged to have been deposited with PW3 MHC Hari Ram on 11.4.1999. Even he also failed to produce and prove the abstract of Malkhana register against which the case property was kept by him till 19.4.1999.

Further, he also does not say about the deposit of the sample seal. PW4 Constable Bansi Lal stated to have taken the case property on 19.4.1999 for its analysis to CTL, Kandaghat, but unfortunately he did not make any reference of the Road Certificate against which he took the case property from Malkhana and he is also silent about the fact that the sample of seal was also taken by him. Therefore, the lithographic impression on the analysis report Ext.PW8/E certifying that the sample received in the laboratory tallied with the specimen impression of seal sent separately appears to be put mechanically. When there was no sample of seal, there was no question of certifying that it tallied with the alleged sample of seal which was received for analysis. Thus, in my opinion, the prosecution has failed to link the report of analysis Ext.PW8/E with the alleged recovery. Hence, the acquittal of the Respondent for the offence aforesaid cannot be interfered with. As such, the appeal filed by the State sans merit and is accordingly dismissed.

The Respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case.

Send down the records forthwith.