State of Himachal Pradesh vs Sandeep Kumar

Surinder Singh, J.—State has challenged the acquittal of the respondent recorded by the learned trial Court for the offence punishable u/s 61(1)(a) of Punjab Excise Act as applicable to the State of H.P. Heard and gone through the record.

In short, prosecution case is that on 28.9.2009, in the evening PW5 ASI Ram Swaroop was heading a police petrol party near main Chowk Manali. Around 5.30 p.m., the said raiding party received an information that respondent, who was the owner of Moon Dance Caf� Old Manali, indulged in sale of Beer in his caf�. Finding this information credible, he jotted it down on a piece of paper Ext. PW5/B and sent ruka to police Station through HHC Lal Singh for the registration of the case. No attempt was made by the raiding party to include independent witnesses, no reason therefor assigned for not doing so despite availability and proceeded to the spot, raided the premises of the respondent and alleged to have recovered 8 cartons of King Fisher beer containing 12 bottles, out of each carton, one bottle was separately taken as sample, sealed with seal impression ''H''. Sample of the seal was also taken on a piece of cloth Ext. PW1/B. PW5 ASI Ram Swaroop handed over seal used for sampling to PW2 HC Narayan Singh. The bottles were taken into possession vide memo Ext. PW1/B along with remaining recovery. Site plan Ext. PW5/A of the alleged place of incident was also prepared.

Police recorded the statements of the witnesses. Case property was deposited with MHC in the Malkhana. Samples were sent to CTL Kandaghat for its analysis which confirmed the sample so sent containing permitted alcoholic strength as mentioned in the certificate Ext. PW4/C.

After receipt of the report of analysis, challan was presented in the court for the trial of the respondent.

Respondent was accordingly charge-sheeted. He pleaded not guilty and claimed trial.

Prosecution examined its witnesses to prove its case and respondent was also examined u/s 313 of the Code of Criminal Procedure, in short ''the Code''. His case was denial simplicitor. No evidence in defence was led. At the end of the trial, respondent was acquitted on the ground that there was no compliance of Section 100(4) of the Code. Further that there have been contradictions in the statements of the official witnesses.

Pertinently, perusal of the statements of PW1 HHC Lal Singh and PW5 ASI Ram Swaroop reveal that there were about 50-60 shops running in the vicinity at the relevant time. Even Investigating Officer stated that when they raided the premises of the respondent, about 5/6 persons were also present there. Significantly they did not include any of them to witness the search. Site plan Ext. PW3/A further reveals that across the road where they raided the premises, there were other two cafes running under the head and style "Kapil Caf�" and "Manali Caf�". During September between 5 p.m. to 6 p.m. place remains thickly crowded. No cogent explanation has been offered by the Investigating Officer why the independent witnesses were not included; whereas PW2 HC Narayan Singh stated that he was deputed by the Investigating Officer to get two witnesses from the locality but he did not find any, appears to be absolutely incorrect. However, in cross examination, he stated that in the premises of the respondent, 2-3 servants of the respondent were present, then what prevented them either to implead them accused or the witnesses. Thus, statements of the official witnesses itself are causing dent in the prosecution case with respect to presence of the witnesses in the locality.

Section 165 of the Code applies to the search of the houses. It also provides that the provision of Section 100(4) of the Code shall apply to the search of a house or an enclosed place. It mandates the inclusion of two independent and respectable witnesses from the locality at the time of the search. However, this requirement can be dispensed with, if cogent and convincing reasons are stated by the Investigating Officer. But in the instant case no reason worth its name is furnished by any of the witnesses rather they contradict each other sharply. The whole episode seems to be shrouded in secrecy. Therefore, it is indigestible and how can it be believed to pass conviction against the respondent when it is not worth confidence inspiring. Therefore, in these circumstances a reasonable doubt arises, the benefit of which must be given to the respondent. Thus, the acquittal of the respondent passed by the learned trial Court cannot be interfered with.

The appeal filed by the State sans merit and is accordingly dismissed. The respondent is discharged of his bail bond entered upon by him at any stage during the proceedings of this case.