State of H.P. vs Sandeep Thakur & another

Sureshwar Thakur, J.

1.The instant appeal stands directed by the State of Himachal Pradesh against the judgment rendered on 29.09.2008 by the learned Judicial Magistrate

1st Class, Court No. II, Roharu, District Shimla, H.P. in Case No. 32/3 of 2007, whereby, he acquitted, the accused for theirs allegedly committing an

offence punishable under Section 61(i)(a) of Punjab Excise Act as applicable to the State of H.P. (hereinafter referred to as the Act).

2.The facts relevant to decide the instant case are that on 13.1.2007, at about 9.20 p.m., a police party headed by H.C. Yash Pal, No.94 along with

other police officials, was present at paurital near Mehandli when a vehicle bearing No. HP-03-4174 came from Hatkoti side. The said vehicle was

stopped. It was occupied by one Sandeep Thakur being its driver and other occupant was also named as Sandeep Thakur @ Bittu. On search of such

vehicle, nine cases of old Monk XXX Rum were found kept on rear seat of the vehicle. Both the accused failed to produce any permit/licence for

possession such liquor. Out of the recovered liquor, four bottles were segregated from the four cases as sample. The sample bottles were sealed with

seal bearing inscription 'A'. Specimen of seal were also taken separately on a cloth piece. Thereafter, the police completed all the codal formalities

3.On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal

Procedure was prepared, and, filed before the learned trial Court.

4.The accused stood charged by the learned trial Court for theirs committing offences punishable under Section 61(1)(a) of the Act. In proof of the

prosecution case, the prosecution examined 8 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused,

under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and,

pleaded false implication.

5.On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondents herein.

6.The State of H.P., stands aggrieved, by the judgment of acquittal recorded in favour of the accused/respondents, by the learned trial Court. The

learned Addl. Advocate General for the State, has concertedly, and, vigorously contended qua the findings of acquittal recorded by the learned trial

Court standing not based, on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of

the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise, of its appellate jurisdiction,

and, theirs standing replaced by findings of conviction.

7.On the other hand, the learned counsel appearing for the accused/respondents herein, has, with considerable force and vigour, contended qua the

findings of acquittal recorded by the learned trial Court rather standing based on a mature and balanced appreciation, by it, of the evidence on record,

and, theirs not necessitating any interference, rather theirs meriting vindication.

8.This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.

9.108 bottles of Old Monk XXX Rum, carried in9 boxes, were, recovered under memo Ex.PW4/A, from vehicle bearing No. HP-03-4174, vehicle

whereof, at the relevant time stood occupied by accused No.1 Sandeep Thakur, and, also by another Sandeep Thakur alias Bittu (accused No.2).

Since, the accused failed to produce the relevant permit hence in the FIR, offences punishable under Section 61(1)(a) of the Act , stood constituted

against the accused.

10.In respect of recovery of the aforesaid bottles, memo Ex.PW4/F was prepared, and, from amongst the aforesaid cache of liqour, four bottles were

segregated, as samples, sample bottles whereof were sent to CTL, Kandaghat, whereon, the latter pronounced, an affirmative opinion, embodied in

Ex. PW5/D. Even though, the learned trial Court has discounted the vigour of the testifications of the officials witnesses, on the score of, despite, as

testified by PW-2, in his cross-examination, of, his at 10.15, p.m., boarding, a vehicle for carrying the rukka to the police station, (i) thereupon, with

occupants thereof, being obviously available for theirs being associated as independent witnesses, vis-a-vis the recovery of cache of liquor, from, the

vehicle occupied by the accused, and, yet the Investigating Officer failing to associate them as independent witnesses, hence constrained it to

disimpute vigour vis-a-vis the testifications of officials witnesses. However, the discountenancing of the testifications of the officials witnesses, on the

score, aforesaid rather is legally frail, (ii) given the arrival of the vehicle aforestated, not being formidably pronounced, to be occurring in

contemporaneity, to the alleged seizure, rather when the alleged seizure occurred prior thereto, at 9.20 p.m., hence, obviously the subsequent arrival, of

the vehicle aforestated, at the site of occurrence, especially when thereat the relevant proceedings were concluded, (iii) hence did not enjoin the

Investigating Officer, to associate occupants thereof, as independent witnesses vis-a-vis the relevant proceedings, nor their non association by the

Investigating Officer, renders errectable any inference, of the testifications rendered by the official witnesses, being either discountable or discardable,

as inaptly done by the learned trial Court.

11.Be that as it may, an ingrained infirmity pervading the prosecution case, is, comprised in the factum of PW-5, the Investigating Officer, PW-6 and

PW-7, in their respective testifications, rather making unanimous echoings (i) qua non appending of seals, on any of the boxes containing bottles of

liquor, (b) besides they unanimously testify, of, no specific identification mark being embossed, upon, any of the boxes, containing bottles of liquor. The

Investigating Officer concerned, though was enjoined to on all the boxes holding therewithin bottles of liquor, hence affix specific identification marks

besides was enjoined, to, emboss seals thereon, and, was also enjoined to make apposite concurring therewith, reflections, in the relevant seizure

memo, Ex.PW4/F, (c) yet neither the seizure memo, carries any recitals, of the Investigating Officer concerned, embossing any specific identification

marks vis- a-vis four boxes, holding therewithin liquor nor also there occurs any echoing therein of any seal impression(s), being embodied thereon, (d)

wherefrom, it is apt to conclude of the Investigating Officer concerned, failing to ensure, adduction of potent proof, vis-a-vis the trite factum of the

bottles recovered under memo Ex.PW4/F, being at the time of their production in Court, hence standing pointedly linked vis-a-vis their recovery in the

manner disclosed, in the apposite FIR. The further effect thereof (e) is that for lack of occurrence, of, imminent connectivity inter se the purported

recovery of four boxes holding therewithin liquor, from, the manner encapsulated in the FIR vis-a-vis the stage of their production in Court, rather

hence garnering an inference of the prosecution omitting to assuredly, prove qua all the boxes of liquor, as stood recovered under memo Ex.PW4/F,

hence standing squarely connected therewith or vis-a-vis Ex.PW5/D. Furthermore, the cache of the liquor at the stage of preparation of Ex.PW4/F,

was carried in card board boxes, whereas, PW-6, in his cross-examination, has, testified that at the time, of, the case porperty being shown in Court, to

him, thereat from amongst four card board boxes, two rather being were contrarily carried in a white coloured gunny bag, (f) thereupon, the effect

thereof, when is entwined, with, the aforesaid lack of identification marks being carried, upon, 4 card board boxes, purportedly holding therewithin

liquor, recovery whereof stood effectuated under memo Ex.PW4/F, (g) is of hence a part, of the case property at the time of itsproduction in Court

being produced in a manner contradistinct vis-a-vis the manner of its recovery, hence, being effectuated under memo Ex.PW4/F. (vi) With a further

corollary of this Court being constrained to conclude of the production, of case property in Court, not, being formidably linked with memo Ex.PW4/F,

rather the prosecution failing to adequately, and, convincingly connect, the recovery of liquor under memo Ex.PW1/D vis-a-vis its production in Court.

Further concomitant effect thereof, is that benefit of doubt accrues vis-a-vis the accused.

12.A further perusal of the record, reveals, that (iv) 108 bottles were carried in four cartons/boxes of liquor, and, from amongst 108 bottles, four

bottles were segregated as samples, and, were sent to the CTL Kandaghat, and, the latter rendered thereon its affirmative opinion qua contents

thereof, opinion whereof is borne in Ex.PW5/D. The learned defence counsel, yet, did not make any effort, for the four bottles sent to CTL,

Kandaghat, being ordered to be produced in Court for his thereafter making, a valid projection before the learned trial Court, that, with thereon also the

Investigating Officer, hence, failing to emboss the appropriate seals, nor seals, if any,embossed thereon not bearing any similarity with the recitals

carried in seizure memo, (i) whereupon, only upon theirs being produced in Court, also theirs, making, revelations in support of the learned defence

counsel's espousal, it was befitting to discard the report borne in Ex. PW5/D, reiteratedly, failure aforesaid, of the learned defence counsel, contrarily

constrains a conclusion, of the four bottles retrieved, from, amongst 108 bottles of liquor carried in four carton boxes, in the manner disclosed in the

FIR, being properly sealed, and, also samples retrieved therefrom, whereon, an affirmative opinion borne, in Ex.PW5/D was pronounced by the CTL

concerned, rather enjoying both tenacity as well as evidentiary worth. The further concomitant effect, of the aforesaid inference is hence qua the

defence also conceding of four bottles holding therewithin liquor.

13.Be that as it may, even if the aforesaid conclusion is recorded by this Court, its effect stands blunted, by the factum of the opinion of CTL,

Kandaghat, borne in Ex.PW5/D, being only pronounced with respect to four bottles, and, when the charge was framed against two accused,

thereupon, when vis-a-vis each, from, amongst four bottles, two bottles are distributed inter se both the accused, thereupon, when it is legally

permissible, for each of the accused to carry two bottles, without any valid permit or licence issued by any authority, hence, the charge is not made out

against them.

14.For the reasons which have been recorded hereinabove, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the

impugned judgment is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.