Himachal Pradesh High Court
State Of H.P vs Hem Raj on 13 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 420 of 2010 Decided on : 7.9.2018.
State of H.P. .....Appellant.
Versus
Hem Raj .....Respondent.
Coram r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Hemant Vaid, Additional Advocate General with Mr. Vikrant Chandel, Deputy Advocate General.
For the Respondent: Mr. Rajiv Rai, Advocate.
Sureshwar Thakur, Judge (oral) The instant appeal stands directed by the State of Himachal Pradesh, against, the impugned judgment, of, 19.10.2009, rendered by the learned Judicial Magistrate, Ist Class, Arki, Tehsil Arki, District Solan, H.P., in criminal case No. 31/3 of 2009, whereby the respondent (for short 'accused') 1 Whether reporters of the local papers may be allowed to see the judgment?
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stood acquitted by the learned trial Court, for, an offence .
punishable under, Section 61(1) (a) of Punjab Excise Act (as applicable to State of H.P.).
2. Facts in brief are that on 17.9.2008, at about 11.00 p.m. H.C Amrender Singh alongwith C. Surjeet Singh and H.H.G Ramesh Chand were present at Kunihar Bazar, Hatokot in connection with routine patrolling duty. On 18.9.2008 at about 12.30 a.m., at Kunihar Bazar, accused was found to be carrying three carton boxes on his head. Accused was stopped by the police and was asked about his whereabouts, to which he told his name to be Hem Raj. The boxes carried by the accused were checked and on checking it was found that each box was containing 12 bottles each of country made liquor marka "Himachal No.1" of 750 ml each.
In total the accused was found in possession of 36 bottles of country made liquor Marka "Himachal No.1". Out of 36 recovered bottles, 3 bottles were separated by the police for chemical analysis and thereafter were sealed with seal impression "A". Rukka was sent to Police Station, Arki, on the basis of which FIR No. 75/008 was registered. Spot map was prepared. After completing all codal ::: Downloaded on - 17/09/2018 22:58:39 :::HCHP ...3...
formalities and on conclusion of the investigation into the offence, .
allegedly committed by the accused challan was prepared and filed in the Court.
3. The accused was charged by the learned trial Court for his committing, an, offence punishable, under, Section 61(1) (a) claimed trial.
r to of Punjab Excise Act, to which he pleaded not guilty, and,
4. In order to prove its case, the prosecution examined 6 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, he pleaded innocence, and, claimed false implication. However, he did not choose to lead any evidence, in, defence.
5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused.
6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper ::: Downloaded on - 17/09/2018 22:58:39 :::HCHP ...4...
appreciation of evidence on record, rather, theirs standing .
sequelled by gross misappreciation of material on record.
Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction.
7. The learned counsel appearing for the accused, has with, considerable force and vigor contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record, and, theirs not necessitating 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. The apt recovery memo is borne in Ex. PW1/B, and, thereunder recovery of 36 bottles of country liquor, hence, stood effectuated, from, the conscious and exclusive possession of the accused. However, no disclosure is borne in Ex.PW1/B, qua the seizing officer, in, contemporaneity to his effectuating recovery ::: Downloaded on - 17/09/2018 22:58:39 :::HCHP ...5...
thereunder, of, three carton boxes, carrying therewithin 36 .
bottles of liquor, rather also embossing apt seals thereon.
Consequently, at the time of their production in Court, they were not carrying any seals, hence, the prosecution is obviously rather disabled, to, connect the recovery thereof, made under, Ex.PW 1/B visavis the stage of its production in Court. Reiteratedly, the embossing of seals upon three carton boxes, was, imperative for the prosecution, being facilitated, to, connect the apt recovery made, under, Ex.PW1/B, visavis, its production in Court.
Reiteratedly, for want thereof, obviously the learned trial Court was enabled, to, conclude, that, the prosecution hence failing, to, connect the apt recovery(s) made under PW1/B, visavis, production thereof in Court, besides hence made a firm apt conclusion qua the accused being entitled to acquittal.
10. Be that as it may, a close perusal of recovery memo borne in Ex.PW1/B, makes a clear revelation qua amongst 36 bottles of liquor carried in three carton boxes, three bottles being separated therefrom, and, theirs being sealed in a cloth parcel, whereon, seal impression(s) carrying English ::: Downloaded on - 17/09/2018 22:58:39 :::HCHP ...6...
alphabet 'A' stood embossed, and, thereafter under an apt road .
certificate, borne in Ex.PW4/C, the aforesaid sample bottles were sent to CTL concerned, and, the Chemical Examiner concerned, under, Ex.PW5/C hence proceeded, to, make an opinion qua the aforereferred number of sample bottles, of, liquor hence carrying therein alcohol. The aforesaid report of the CTL concerned, is, perse admissible in evidence, in, concurrence with the mandate of Section 292 of Cr.P.C, hence the opinion borne in Ex. PW5/C, is, both readable besides admissible.
11. At this stage, the learned counsel for the accused has made a vigorous submission before this Court, that, no penal culpability is attracted visavis the accused, (i) even with respect to three bottles of liquor, in respect whereof, an affirmative opinion was formed by the C.T.L concerned (ii) given the investigating Officer concerned or the seizing officer, not associating independent witnesses, despite, their evident availability, at the site of occurrence, especially when the relevant seizure was made, at Kunihar Bazar. The aforesaid submission is not accepted given (a) the apt seizure occurring at ::: Downloaded on - 17/09/2018 22:58:39 :::HCHP ...7...
mid night, whereat, it was obviously not possible for the .
investigating officer concerned, to, associate inhabitants, of, the apt busy locality, in, the apt seizure proceedings (b) the learned defence counsel, not, after the exhibition of report of CTL borne in PW5/C, in Court, making any endevour for eliciting, from, the CTL concerned, the, seals borne, in, the three sample bottles, for, his therefrom hence establishing qua lack of concurrence visavis descriptions in respect thereof, as, borne in the seizure memo, with, the one(s) borne therein, (c) wherefrom an inference is sparked qua the learned defence counsel hence acquiescing qua the opinion borne in Ex.PW5/C, being a valid opinion rendered, by the CTL concerned, visavis the sample bottles, transmitted qua it, under road certificate borne in PW4/C, (d) and, his also acquiescing qua carrying(s) of description(s), visa vis, all seal impressions, reflected therein, hence bearing concurrence, with, apt descriptions thereof, occurring in seizure memo borne in PW1/B.
12. The crux of the above discussion, is, that the appeal is allowed, and, the impugned judgment rendered by the ::: Downloaded on - 17/09/2018 22:58:39 :::HCHP ...8...
learned trial Court, whereby, it recorded findings of acquittal, .
qua the accused, stands reversed, and, set aside. Accordingly, the accused stands convicted, visavis, three sample bottles, hence, for an, offence punishable under Section 61(1) (a) of Punjab Excise Act (as applicable to State of H.P.). Let the accused/convict be produced on 28.9.2018 before this Court for his being heard on the quantum of sentence. Records of the learned trial Court be sent back forthwith.
7 September, 2018
th
(Sureshwar Thakur)
(priti) Judge
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