Himachal Pradesh High Court · 2010

The Hon(cid:146)ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.B.R. Sharma, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate Ist Class (IV), Shimla, dated 14.8.2003, vide which the respondent was acquitted of the charge framed against him under Section 61-1-a of the Punjab Excise Act, as applicable to the State of H.P., (hereinafter referred to as the Act).

Briefly stated the facts of the case are that on 29.7.2002, at about 5.40 p.m., ASI Param Dev alongwith H.C. Tek Ram, H.C. Sarvinder Rattan and H.C. Vijay Kumar, was present near Sankat Mochan on the main road in connection with patrolling. A secret information was received that the respondent has taken on rent a room in the building of one Brij Mohan Thakur near Shimla View for the purpose of storage of liquor from where the accused used to supply liquor to different places. A raiding party was formed by ASI Param Dev by associating three independent witnesses. On search of ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - the rented room in the possession of the respondent, recovery of 29 bags of plastic (white colour) containing bottles of different categories of country liquor was made. These were taken in possession, samples were taken from the recovered bottles and on the receipt of the report of the Chemical Examiner, the challan was filed before the learned trial Court under the above Sections, who tried the respondent leading to his acquittal.

I have heard the learned counsel for the parties and have gone through the record of the case.

On appraisal of the evidence led by the prosecution, it is clear that the incharge of the raiding party was ASI Param Dev, who formed the raiding party, conducted the search of the premises allegedly in possession of the respondent and effected the recoveries. To substantiate their case, the prosecution has examined the said ASI Param Dev as PW-5. He has simply stated that he raided the premises in possession of the respondent and made the recoveries. He has not stated as to whether the premises were locked or open and as to whether the respondent was present there at that time. He has also not collected any evidence to show that the premises were in possession of the respondent as a tenant and as such his statement does not substantiate that the recovery was effected from the exclusive and conscious possession of the respondent.

The other member of the raiding party, namely, H.C. Tek Ram was examined as PW-7, who has also corroborated the testimony of PW-5 ASI Param Devi, incharge of the raiding party, but his statement also does not establish that the - 3 - respondent was found present at the spot or that the recoveries were effected from the premises in exclusive and conscious possession of the respondent as a tenant. Moreover, no evidence has been led in regard to the tenancy of the respondent of the premises in question. The owner of the premises Brij Mohan Thakur was not examined by the prosecution as having been won over by the accused. Thus, there is no evidence that the premises in question were in possession of the respondent or that he provided the key at the spot or he was present alongwith the recovered bottles.

Apart from the above, another ground which has weighed with the learned trial Court in not believing the prosecution story is that two independent witnesses associated by the prosecution, namely, PW-1 Shiv Parkash and PW-2 Nek Ram, when examined, turned hostile and did not support the prosecution story. There is nothing on the record to show that they were respectable witnesses of the area and were associated as such before conducting the raid in the rented premises of the respondent. According to Section 100(4) of the Cr.P.C., respectable persons of the area have to be associated before conducting search of a premises, but there is nothing on the record to show that the independent witnesses were the respectable witnesses of the area.

In view of the above discussion, the learned trial Court had rightly come to the conclusion, in the absence of the independent witnesses having not corroborated the prosecution case, that the prosecution has failed to prove their case beyond any reasonable doubt. The said - 4 - findings recorded by the learned trial Court, in the facts and circumstances of the case, cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. June 19, 2010. (TILAK) (V.K. Ahuja), Judge