State of H.P. vs Gopal Singh

Surinder Singh, J.—The acquittal of the Respondent has been challenged in this appeal for the offence punishable, u/s 61(1)(a) of the Punjab Excise Act, as applicable to the state of Himachal Pradesh, in Criminal Case No. 201-1 of 98/3.3 of 99.

In short, the prosecution case is that on 8th June, 1998, at about 6.15 p.m., PW2 HC Raj Kumar along with the other Constables were on patrolling duty in village Badlawag near Chambi. While descending on a bridal path, they noticed Respondent coming from the opposite direction with a canny in his hand. On seeing the police, the Respondent got perplexed and tried to escape but he was over powered by the said HC. On search he was found carrying five litres of illicit liquor in the plastic canny. A sample was separated in a nip and sealed with seal impression ''x''. The seal impression was taken on a piece of cloth and after its use it was handed over to another HC Sukh Dev Singh.

The case property was taken into possession vide memo Ext. PW4/A. Rukka was sent for the registration of a case. Site plan was prepared. On 17.7.1998 sample was sent for analysis to CTL, Kandaghat through PW4 C. Kuldip Kumar. On the receipt of the report of analysis Ext.PZ and after completing the challan, it was presented before the Court for trial of the Respondent. He was charge-sheeted for the aforesaid offence to which he pleaded not guilty and claimed trial.

Prosecution examined its witnesses to prove the case. The Respondent was also examined u/s 313 of the Code of Criminal Procedure and his case was of denial simplicitor. He did not lead ay evidence in defence. At the end of the trial, he was acquitted mainly on the ground for nonassociation of the independent witnesses.

Mr. J.S. Rana, Assistant Advocate General vehement the arguments that the provisions of Section 100(4) of the Code of Criminal Procedure are not attracted in the present case and further that the evidence of the prosecution was worth inspiring confidence. The acquittal of the Respondent has caused miscarriage of justice.

Mr. Romesh Verma, learned Counsel for the Respondent has supported the impugned judgment of the acquittal.

It is a case of recovery of illicit liquor from an open place and not from a closed place. The provisions of Section 100(4) of the Code of Criminal Procedure are not attracted. Thus the case of the prosecution cannot be thrown out on this score. Therefore, I proceed to examine the statements of witnesses to find out if the prosecution has been able to prove its case in accordance with law.

While supporting the case of the prosecution PW2 HC Raj Kumar stated that having separated the sample from the recovered quantity of illicit liquor, it was sealed. The seal after use was handed over to HC Sukh Dev Singh. Pertinently, he did not say about the deposit of the case property in the malkhana.

Although PW3 MHC Rajinder Singh although stated that the case property was deposited with him in the malkhana on 8.6.1998, but he did not produce and prove the entries thereof in the malkhana register. He also stated that on 17th July, 1998 the sample was entrusted to PW4 C. Kuldip Kumar for its deposit in the Laboratory vide RC No. 32 of 1998 but the copy of R.C. was neither placed on record nor proved. According to PW4 Kuldip Kumar the said sample was entrusted to him on 17.7.1998 and it deposited by him in the Laboratory.

When the report of the analysis Ext.PZ is perused, it reveals the sample was received in the Laboratory on 24th July, 1998 through the said Constable i.e. after about a week. There is no explanation worth the name that w.e.f. 17.7.1998 till 24.7.1998 where this sample was kept/retained by him and what was the reason for deposited so late in the Laboratory.

Further, the police docket against which the sample was sent, it did not say about sending of the sample of seal with the sample parcel, even there is also no reference of the R.C. or the name of Constable through whom it was sent to deposit in the Laboratory. Therefore, the link in this case from the time of recovery till its examination in the Laboratory is not complete. Its breach gives rise to a reasonable doubt, the benefit of which must go to accused.

Therefore, in view of above it cannot be said that the prosecution has to be able to prove its case beyond reasonable doubt. Thus, the acquittal of the Respondent cannot be interfered with, as such, the appeal is dismissed.