State of H.P. vs Dhaneshwari Devi

Bhawani Singh, J.—The acquittal of Smt. Dhaneshwari Devi by Judicial Magistrate, First Class (III), Mandi in Police Challan No. 50-1/86 has been challenged by the State by way of this appeal, and it has been urged that this decision of 30-8-1986 deserves to be set-aside being against the evidence on record.

The prosecution case, in brief, is that on 24-3-1986, the Police intercepted the accused in village .lajrot and on search, found a pitcher containing six kgs. of Lahan. It was seized, sealed and taken into possession by the Police. It was examined at a later stage by Kehar Singh, Excise and Taxation Inspector, who opined that it was a mixture of Gur, water and Kikar bark and was ready for distillation purposes. Accordingly, the accused was challaned u/s 61 of the Punjab Excise Act as applicable to the State of Himachal Pradesh.

The accused has denied the commission of offence and claimed trial. The prosecution examined as many as six witnesses in this case to support its allegations. However, the accused was acquitted by the Court by the impugned judgment.

I have gone into the matter with the assistance of the learned Counsel for the parties. Constable Khazana Ram (PW-I) state that on 24-3-1986 he had gone out in connection with the investigation of Case No. 43/86 u/s 506, Indian Penal Code along with Investigating Officer Hem Raj and Constable Hari Singh. While they were coming back, the accused was found coming from the field by the side of a cow-shed. On seeing them, she started running. They suspected some foul play and searched her. A pitcher containing Lahan weighing six kgs. was found and taken into possession vide recovery memo. It was placed inside a jute bag and sealed with seal ''KS''. During cross-examination, he states that the Furd was prepared while sitting inside the cow-shed and while the tin was sealed, they did not call the Pardhan nor did they call anyone else to see it. He also says that the cotton bag was taken from the accused without paying any price there for.

Head Constable Hem Raj (PW-4) states that they had gone to that side of area for patrolling, thereby contradicting Constable Khazana Ram (PW-1). It also appears from his statement that this crime was detected in a village and that during the subsequent stage of investigation, the accused was released on bail and one Tulsi Ram stood surety for her. He has also admitted that no other witness was called during the investigation of this case and that the cotton bag was taken from the village.

It is not possible to believe the prosecution story that the accused was intercepted and searched while she was coming from her field, since it is in evidence that the Furd was prepared in the cowshed. In case the offence was committed some-where else, as alleged by the prosecution, there was no reason for going into the cow-shed to do the investigation. Then the Police had enough time to call independent witnesses from the locality. It failed to do so, although, it had enough time to call them. The object of their visit to the village was not for the investigation of any other case. They had come for patrolling.

From the evidence on record, it can be safely said that the raid was conducted inside the cow-shed but the requirement of Section 100, Code of Criminal Procedure has not been followed. Even if it is admitted for the sake of arguments that it was done outside the cow-shed, in that event also it was most desirable that the Police should have associated independent witnesses in this case. The requirement of doing so was more in this case, since a lady was involved and her person was intended to be searched. The prosecution case, therefore, appears to be thoroughly doubtful and it is not the exact and truthful account of the matter. It has been held in large number of decisions by this time that the Police must associate independent witnesses while conducting raids in excise cases, so that its action is not challenged on the ground that the Police failed to associate independent witnesses and the case of the prosecution is untrue.

I have considered the matter with reference to the record of this case and the submissions made by the learned Counsel for the parties. There is no force in this appeal and the same is accordingly dismissed.