Pawan Kumar vs State Of HP

“7.

Before parting, we would like to accentuate the revisional jurisdiction of the High Courts and the contours and inherent limits while exercising powers as a revisional authority. Section 397 of the Criminal Procedure Code, 1973 (now, Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023) encapsulates the power of High Courts and Sessions Courts to examine the correctness, legality or propriety of any order passed by an inferior criminal court. The said Section is extracted as hereunder:

“438. Calling for records to exercise powers of

revision.—(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.

Explanation. —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 439.

(2)

The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3)

If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

Discretion in the exercise of revisional jurisdiction should be exercised within the four corners of this section whenever there has been miscarriage of justice. However, while exercising power under this section, the Court does not act as an appellate Court and therefore, while considering the legality, propriety or the correctness of a finding or a conclusion, the revisional court does not and should not dwell upon the facts and the evidence of the case as an appellate Court. The court, in revision, considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence and order recorded by the lower court, and should refrain from substituting its conclusion on an elaborate consideration of evidence, and the findings of the lower courts should not be reversed merely on the ground that an alternative view is possible on the facts of the case. In this case, such a position did not also emanate from the evidence on record.

7.1.

This Court, in the State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659: 2004 SCC (Cri) 2003, observed that the High Court, in exercise of its revisional jurisdiction, cannot embark upon an in-depth roving re-examination of the oral evidence and medical evidence and come to a conclusion contrary to the consistent one reached by two courts below. In the facts of the present case, in the impugned judgment, the High Court gravely erred in upsetting the concurrent findings of conviction of the trial court and the Appellate Court by substituting its own conclusions and reasoning on the merits of the case and thereby erred in setting aside the well-reasoned and correct judgment and orders of the trial and appellate courts.

“5.

… In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in coming to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the Respondent by reappreciating the oral evidence. …”

“27.

It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings. This Court is of the view that it is not for the Revisional Court to reanalyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GMBH, (2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

28.

Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.”

9…So far as the statement of PW1 Chaman Lal is concerned, no sample of liquor or any seal of the seized liquor has been produced and proved in Court. The bottles from which the samples were taken have also not been proved in Court. Learned trial Court, as also the Appellate Court, had presumed as a matter of fact that what the witnesses had stated was the correct state of affairs without considering that facts were to be proved from documents which admittedly existed but were not produced in Court. There is no presumption in law that oral evidence can override documentary proof. The existence of a seal can be proved by its production. The Court cannot presume that the sample was kept in safe custody, more especially when such a fact is established by a written document, namely register (s) and certificate in Register No. 21, which is not produced. What the prosecution tried to prove remains unclear. Merely saying that liquor was seized is insufficient without establishing its quantity and safekeeping.”

“4.

We have heard the learned counsel for the respondent in opposition to the appeal and considered the nature of the evidence available. Non-production of the seized wood and the vehicle, the primary evidence of the offence, renders the prosecution's case fragile and unsustainable. Mere production of the seizure memo does not tantamount to the production of the seized wood and the lorry. Unless the seized wood was produced, mere production of a sample, and there is no material in support that the sample was out of the same 22 logs, we are unable to sustain the conviction of the appellants.”

“6.

It is incumbent on the prosecution to prove that the accused were in possession of an incriminating article or an offensive material before they are convicted for keeping in possession the contraband or the offensive material. From its recovery and taking samples, the chain of evidence until the samples are analysed in the laboratory should be complete. In case of breach of the chain of evidence, it gives rise to a reasonable doubt that the samples were tampered with, to the benefit of which goes to the accused.

7.

In the instant case, PW-6 A.S.I. Churamani, however, did not state about the deposit of the case property in the Malkhana. But PW-5 MHC Hukam Singh stated that on 19.6.2000 A.S.I. Churamani had deposited the case property sealed with seal impression 'N' in the Malkhana with him. But he nowhere stated that the sample of the seal was also deposited with him in the Malkhana. Even the extract of the Malkhana Register was not placed and proved on record. Thus, it cannot be said that the sample of the seal was also deposited in the Malkhana with him along with the case property.

Even PW-2 constable Rajinder Kumar also did not say anything about handing over the sample of the seal to him when he had taken the samples for examination to C.T.L. Kandaghat. The copy of R.C. No.55/2000, vide which he took the sample for analysis, has also not been placed and proved on record. Had it been there, it could have thrown some light on this aspect of the matter, whether the sample of the seal was also entrusted to him, which was further handed over by him to the person who received the samples in the laboratory, for its comparison with the seal found on samples sent for analysis.

8.

The lithographic impression on the report Ext. PW-4/A, of course, shows that seals on the samples were found intact and unbroken and tallied with the impression seal sent separately, but it loses its importance in view of the fact that no witness has stated to have either deposited the sample seal along with case property in the Malkhana or sent it separately to the Laboratory when the samples were taken for analysis. Then how could the sample of the seal be available in the Laboratory for its comparison? The lithographic stamp is mechanically put on the report.

9.

Further, the case of the prosecution is that the seal, after its use, was given to PW-1 Ravinder Kumar, but he did not say that the seal was ever entrusted to him. Thus, where the seal used on the samples is not known, in these circumstances a substantial doubt has arisen, and the prosecution could not exclude the possibility of tampering with the samples.

Thus, the link evidence in the instant case is found missing. There is no evidence on record regarding the entrustment of seal and no entry in the R.C. and Malkhana register; therefore, reasonable doubt is cast on the probity of the prosecution case, which fact was lost sight of by the courts below. Therefore, in these circumstances, the benefit of the doubt should have been given to the petitioners.”

“7.

Interestingly, there is no mention, if any, regarding the handing over of the seal by this witness to CTL Kandaghat, for comparison. It has come in his statement that he had taken samples, but he has not stated that a specimen seal was also given to him for depositing in CTL Kandaghat. Samples were sent to CTL Kandaghat through Jai Singh (PW- 6), who simply deposed that he had sent samples through PW-5 DurgaDutt. Interestingly, he nowhere stated that the specimen seal impression was also sent separately for chemical analysis.

18.

True it is that reports of CTL, Ext. PW-7/G to Ext. PW-7/K show that the specimen seal impression allegedly separately sent, tallied with the seal impressions on the samples; however, link evidence is missing as to how the specimen seal impression reached the chemical analyst. Similarly, it emerges from the record that there is no mention, if any, in the Challan with regard to sending of specimen seal to CTL Kandaghat. This certainly creates doubt with regard to the genuineness of the prosecution case.

19.

This Court, in a case titled State of H.P. vs. Pankaj Sood, Latest HLJ 2009 (HP) 727, has held that in such a case, by no stretch of the imagination, it can be presumed that the samples were sent along with the sample seal for comparison, and it was held that the prosecution case was doubtful on this count. It was further held by this Court in the aforesaid case that the prosecution is obliged to prove that the article recovered from the possession of the accused is contraband within the meaning of the Act. For that, from the time of recovery till the examination of the samples, the link is required to be completely proved. Seals used on the samples must be intact and unbroken, and the said seals should tally with the sample of the seal taken separately at the time of sampling by the Investigating Officer to overrule every possibility of tampering with the contents of the samples.”

36.

Thus, there is no link evidence establishing the factum of receipt of the sample from the doctor till such time it was handed over to the police official who got it deposited in the laboratory. Whether it was kept in safe custody and not tampered with remains unproven on record.

37.

The SHO/Investigating Officer has not deposed that the sample was deposited in the police station. Where the sample was kept between the 13^thand 17^th June 2009 remains unexplained on record. Also, seal-H with which the alleged sample was sealed has not been produced in Court. Crucially and significantly, even the Road Certificate has not been produced on record, which would have only thrown light as to with whom and where the sample was kept at the police station.

2.

With a view to appreciating the correctness of the view taken and having heard the learned counsel for the parties, it is necessary to look into the relevant provisions of the Act and the Rules. Chapter I, Section 3 of the Act defines various words and phrases in the Act. Section 3(1) defines “beer” to include ale, porter, stout, and all other fermented liquors made from malt. “Liquor” has been defined under Section 3(14) of the Act to mean “intoxicating liquor and includes all liquid consisting of or containing alcohol; also, any substance which the State Government may by notification declare to be liquor for the purpose of this Act”. “Excisable article” has been defined in Section 3(6) to mean any alcoholic liquor for human consumption, or any intoxicating drug. “Excise duty” and “countervailing duty” as defined in Section 3(6-b) would mean any such excise duty or countervailing duty, as the case may be, as is mentioned in Entry 51 of List II of the Seventh Schedule to the Constitution. “Intoxicant” under Section 3(12-a) means any liquor or intoxicating drug as has been defined in Section 3(16) to include every process, whether natural or artificial, by which any intoxicant is produced or prepared, and also re-distillation, and every process for the rectification, reduction, flavouring, blending or colouring of liquor. “Place” has been defined under Section 3(17) to include a building, shop, tent and closure, booth, vehicle, vessel, boat and raft. “Spirit” has been defined in Section 3(19) to mean any liquor containing alcohol obtained by distillation, whether denatured or not. Section 31 of the Act is the charging provision which envisages that an excise duty, or a countervailing duty, as the case may be, at such rate or rates as the State Government shall direct, may be imposed, either generally or for any specified local area, on any excisable article. Section 23 of the Act prescribes removal of the excisable article from the distillery, brewery, etc. and provides that no intoxicant shall be removed from any distillery, brewery, warehouse, or other place of storage established, or licensed under the Act, unless the duty, if any, payable under Chapter V has been paid or a bond has been executed for the payment thereof. Chapter V deals with the levy of duties and fees; the details of which are not material for the purpose of this case. As stated earlier, in this case, the levy of excise duty was sought to be made at the stage when the manufacturing of the beer was at the wort stage. The question is whether the levy of excise duty on beer when it was in the process of manufacture is correct. The levy of excise duty is on alcoholic liquor for human consumption, manufacture or production. At what stage beer is exigible to duty is the question. The process of manufacturing beer is described as under:

“The first stage of the brewing process is the feeding of malt and adjuncts into a vessel known as the Mash Tun. There it is mixed with hot water and maintained at a certain temperature. The objective of this process is to convert the starches of the malt into fermentable sugar.

The extract is drawn from the Mash Tun and boiled with the addition of hops for one to two hours, after which it is centrifuged, cooled and received in the receiving Vats. At this stage, it is called ‘Wort’ and contains only fermentable sugars and no alcohol. After this, it is transferred to the fermentation tanks where yeast is added, and primary fermentation is carried out at a controlled temperature. After attenuation (Diminution of density of ‘Wort’ resulting from its fermentation) is reached, the fermented wort is centrifuged and transferred to the storage vats for secondary fermentation. After secondary fermentation is over in the storage vats, it is filtered twice-first through the rough filter press and then through the fine filter press and received in the bottling tanks. It is in the bottling tanks that the loss of carbon dioxide gas is made up, and bulk beer is drawn for bottling. It is filled into the bottles, and then the last process of pasteurisation is carried out to make it ready for packing and marketing. Till the liquor is removed from the vats and undergoes the fermentation process as mentioned above, the presence of alcohol is nil.”

6.

It is, thus, clear that the range of potable alcohol varies between country spirit, whisky and ethyl alcohol. The alcoholic strength of each excisable article and its percentage varies as per the ISI specifications, but intoxicating liquor necessarily means only that liquor which was consumable by human beings as it was. The state of levying excise duty upon alcoholic liquor arises when an excisable article is brought to the stage of human consumption with the requisite alcoholic strength thereof. It is only the final product which is relevant.”

9.

In exercise of the powers conferred by Ss. 5 and 58 of the Punjab Excise Act, the Governor, Himachal Pradesh, on 29-3-1985 issued an order bearing No. EXN. F(1)-4/76 published in Himachal Rajpatra (Extra-ordinary) on 30-3-1985 prescribing the limit for possession of Indian made foreign spirit (for short, IMFS) in respect of the areas/territories comprised in Himachal Pradesh immediately before 1st November, 1966. This order was issued by way of amendment of O. 2 of Himachal Pradesh Intoxicants Licence and Sale Orders, 1965. The relevant order reads:—

“2-A. Limit for retail possession:

The following are the maximum quantities of intoxicants which can be sold in each transaction in retail sale under the Punjab Excise Act, 1914, in the said area:—

(1) Foreign spirit	Two bottles each of the capacity of 750 ml.
(2) Beer whether imported or made in India.	Twelve bottles each of the capacity of 650 ml
(3) Cider (liquor manufactured by fermentation of juice of any fruit) whether imported or made in India.	Six-quart bottles.
(4) Country liquor	Two bottles each of the capacity of 750 ml.
(5) Country fermented liquor.	Six-quart bottles.
(6) Bhang	100 grams.
(7) Rectified spirit	One Pint of 375 ml.
(8) Denatured spirit	One bottle of 650 ml.

Note. — The limit of transportation mentioned in Items Nos. (1) and (2) above shall be alternative with the limit mentioned at Item No. (4):

Provided that a person may, for bona fide consumption by him, the members of his family, or his guests, purchase, transport and possess foreign spirit up to 12 bottles of the capacity of 750 ml. each inclusive of imported spirit and 36 bottles of the capacity of 650 ml. each of Beer on the authority of a permit in Form L-50 granted by the Excise Officer, holding the charge of the District, on payment of a permit fee according to the following scale for a financial year or part thereof:—

Quantity	Permit fee
Exceeding six bottles of IMFS of 750 ml. each and 12 bottles of 650 ml. each of Beer but not exceeding 12 bottles of IMFS and 36 bottles of Beer.	Fifty rupees only.

Note:— The possession limit by one family living in a separate and distinct premises will be six bottles of IMFS of 750 ml. each and 24 bottles of Beer of 650 ml. each at one time. Imported liquor will be considered as part of the stocks of IMFS, and bottles of foreign liquor, which may be of one litre or two litres, will be converted, for this purpose, to the limits prescribed for IMFS in 750 ml. bottles:

Provided further that in case of possession and purchase of denatured spirit for industrial purposes, a permit may be obtained from the Excise Officers of the 1st Class as declared by the State Government.”

“11.

In the present case, as per the prosecution story, eight bottles of XXX Rum were recovered from the pos-session of the accused. Admittedly, samples out of only three bottles were taken by the Investigation Officer and sent for analysis. Such samples were found to be of IMFS vide report Ex. P.W. 5/E.

12.

In view of such report, at the most, the prosecution has been able to prove the possession of the accused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS.

13.

Before the accused could be convicted for the offence, the prosecution was obliged to prove that he was in con-scious possession of IMFS in excess of the prescribed limit of six bottles of 750 ml each. The prosecution, as stated above, could prove the possession of the accused only qua three bottles, which possession is below the pre-scribed limit. The conviction and sentence imposed upon the accused by the two Courts below, on this short ground alone, cannot be sustained.”

10.

According to the prosecution, 48 bottles were recov-ered from the van. The prosecution case is that samples were taken only from four bottles, which were ultimately sent for chemical examination and a report of the Chemi-cal Examiner Ex.PW-5/F was obtained. In Mahajan Vs. State of Himachal Pradesh, 2003 Cr. L.J. 1346, 8 bottles of XXX Rum were recovered, but samples were taken from three bottles and such samples were found to be of IMFS. On those facts, a learned Single Judge of this Court in para 12 has held as follows:

"In view of such report, at the most, the prosecu-tion has been able to prove the possession of the ac-cused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the ac-cused also contained IMFS." There is nothing on record to show that the bottles from which the samples were not taken were in fact containing liquor. In other words, there is no worth believing mate-rial on record to show that 44 bottles were containing liquor. Therefore, the prosecution case at its best is that four bottles were containing liquor.

11.

As per notification dated 29.3.1985 noticed in Mahajan case supra, two bottles each of the capacity of 750 ml. of foreign spirit and alternatively two bottles each of the ca-pacity of 750 ml. of country liquor can be sold in each transaction. The notification dated 29.3.1985 does indi-cate that in that notification emphasis is on the quantity. No prosecution witness has stated what was the quantity of liquor in the four bottles from which samples were taken. Therefore, it cannot be said that the petitioners were found in possession of liquor in excess of the pre-scribed limit mentioned in the aforesaid notification dated 29.3.1985. The benefit of doubt will go to the peti-tioners. The two courts below have not considered the prosecution case properly.

6.

At the very outset, I would like to say that neither the non-compliance of sub-section (6) of Section 100 of the Code of Criminal Procedure will render the search illegal nor the respondent can be acquitted on this sole ground. However, in the instant case, the regrettable feature is that as per the case of the prosecution, 72 pouches of country liquor of "Gulab" brand country liquor contain-ing 180 ml each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst.

7.

There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the re-spondent also contain the country liquor more than the permissible quantity without the permit or licence. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious posses-sion of the licit liquor in excess of the prescribed limit.

8.

In view of this, the prosecution could only prove that the respondent was in possession of one pouch of 180 Ml. of country liquor in his possession, which is not an of-fence. Therefore, in the present situation, the offence charged against the respondent cannot be said to have been proved.

“From the records, it is evident that the specific case of the prosecution was that it had recovered 115 boxes of ‘Lal Qila’ country liquor each box containing 12 bottles, 28 boxes of Director Special Whisky, 10 boxes of Bag Piper Whisky and 9 boxes of Hayward Beer, each box containing 12 bottles of 750 ml each, whereas, admittedly six ‘pawas’ i.e. quarters of ‘Lal Qila’ country liquor, eight quarters of Director Special Whisky, four quarters of Bag Piper Whisky, all 180 ml. each and six bottles of Hayward Beer of 650 ml. each were sent for chemical analysis and even what stands proved on record is the recovery of those bottles which in fact were sent for chemical analysis. Therefore, assuming that the contraband was actually re-covered by the prosecution, it did not take samples from all the bottles and only took the aforesaid ‘pawas’/bottles as samples. Therefore, there is nothing on record to actu-ally prove that the remaining bottles in the cartons that were recovered actually contain liquor. The bottles of each of the brands that were sent for sampling cannot be said to be representative in character.

13.

In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, 2003 Cr.L.J. 1346; State of H.P.versus Ramesh Chand, Latest HLJ 2007 (2) 1017; State of H.P.versus Jagjit Singh, Latest HLJ 2008 (HP) 919; Dharam Pal and another versus State of Himachal Pradesh, 2009 (2) Shim. LC 208; and State of Himachal Pradesh versus Kuldeep Singh & others, 2010(2) Him. L.R. 825, Surender Singh ver-sus State of Himachal Pradesh, Latest HLJ 2013 (HP) 865, Criminal Revision No. 37 of 2007, titled Jagat Ram versus State of Himachal Pradesh, decided on 08.05.2013, Criminal Revision No. 52 of 2009, titled Sanjeev Kumar and others versus State of H.P., decided on 25.10.2016 and Criminal Re-vision No.4 of 2010, titled Subhash versus State of Himachal Pradesh, decided on 20.03.2018, has acquitted the accused, as the prosecution could not prove, beyond reasonable doubt, as to what actually was there in the remaining boxes.

14.

Thus, what at best can be said to have been proved on record is the recovery of six quarters of ‘Lal Qila’ country liquor, eight quarters of Director Special Whisky, four quarters of Bag Piper Whisky, all 180 ml. each and six bot-tles of Hayward Beer of 650 ml. each.”

“14.

On top of everything, this court finds that after having effected recovery, the police party drew insufficient samples. As per own case of the prosecution, police drew 12 samples from 19000 pouches of country liquor of "Gulab" make, whereas 5 samples out of 240 bottles of Indian Made Foreign Liquor were drawn, which were not sufficient to arrive at a conclusion that the entire bulk allegedly recovered by police was liquor/alcohol. No doubt, in the case at hand, police, with a view to prove that the liquor recovered by it contained alcohol, placed on record a report of the Composite Testing Laboratory (CTL), Kandaghat, but that is only qua 12 pouches and 5 bottles, and as such, there is no report, if any, qua the remaining bulk allegedly recovered from the truck/van owned/driven by the accused. In the aforesaid background, learned Sessions Judge rightly held that since 12 pouches of country liquor of "Gulab" make were sent for chemical analysis, recovery, if any, from the accused could be said to be of 12 pouches only and the same is the case with Indian Made Foreign Liquor, where samples from 5 bottles out of 240 were sent.

15.

It would be apt to reproduce the following paras of the judgment rendered by this court in Rakesh Kumar (supra):

25.

Leaving everything aside, it is an admitted case of the prosecution that only six bottles of mark "Saroor" out of forty cartons and six bottles of mark "Bagpiper" out of six cartons were drawn as sample and sent for examination to CTL Kandaghat, as such, from the reports of CTL Kandaghat verifying therein presence of liquor, content is only proved qua twelve bottles in all as such, recovery, of twelve bottles only is proved against the accused, whereas all 480 bottles of country-made liquor mark "Saroor" and 72 bottles of foreign liquor mark "Bagpiper" allegedly recovered from the truck being driven by the accused, were required to be sent for chemical examination, but in the instant case, only twelve bottles were sent for chemical examination as such the whole of the recovery is vitiated.

26.

In this regard, reliance is placed upon the judgment passed by our own High Court in Surender Singh. V. State of H.P., 2013 (2) Latest HLJ 865, which reads as under:-

"26.

In the instant case, it be also noticed that there is yet another major flaw in the investigation by the police. Assuming that the contraband was actually recovered by the police party, the police did not take samples from all the boxes. Samples only from a few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses has deposed that the remaining boxes were sealed; from the outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character.

27.

In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, 2003 CrLJ 1346; State of H.P. versus Ramesh Chand,2007 2 LatestHLJ 1017; Dharam Pal and another versus State of Himachal Pradesh, 2009 2 Shim. L.C. 208; and State of Himachal Pradesh versus Kuldeep Singh & others, 2010 2 HimLR 825, acquitted the accused, as the prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes.

28.

As per the version of PW-1, outside the boxes 'Sirmour No.1' was printed, which version is denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were, in fact, containing liquor. The quantity of the remaining bottles of the boxes from which samples were drawn has also not been proved to be liquor. These aspects have not been considered by the Courts below. The cumulative effect is that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt and as such judgments of the Courts below are not sustainable in law."

"6.

At the very outset, I would like to say that neither the non-compliance of Sub-section (6) of Section 100 of the Code of Criminal Procedure will render the search illegal nor the respondent can be acquitted on this sole ground. However, in the instant case, the regrettable feature is that as per the case of the prosecution, 72 pouches of country liquor of "Gulab" brand country liquor containing 180 ml each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst.

7.

There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the respondent also contain the country liquor more than the permissible quantity without the permit or licence. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious possession of the licit liquor in excess of the prescribed limit."

“3.

In the State appeal against Garib Diss (No. ??? of 1963), the learned Sessions Judge made a reference to the Chemical examination, and he was specifically asked to state if he could say that the sample sent to him was “illicit in reference to spirits distilled in other States of India under a licence by the Government.” The reply received from the Chemical Examiner was to the effect that he was not in a position to examine the sample on the footing mentioned by the learned Sessions Judge or to hold that the same was illicit in reference to spirits manufactured in other States. The point taken in all these appeals on behalf of the State was that once the prosecution established that the constitution of the liquor found in possession of the accused was different from that of spirits distilled in the Punjab distilleries, the burden shifted to the accused to establish that the same was illicit with reference to spirits legally manufactured by any distillery in India or with reference to spirits allowed to be imported from outside the country. I am afraid there is no warrant for this. Possession of one bottle of liquor is permissible, and if it is the case for prosecution that the accused is guilty of an offence under section 61 of the Punjab Excise Act, because the liquor was of unauthorised origin, the burden lies entirely on the prosecution to establish it. It is too much to ask the accused, who is in possession of one bottle of liquor, to get evidence from all over the country, and even from outside, to establish that the liquor conforms to the standards of any spirits from any authorised source. In fact, I consider it an utter waste of time for the enforcement staff, the investigating agency and the judicial courts in launching proceedings for recovery of liquor not exceeding one bottle. It would be better if the enforcement staff concentrated on illicit distillation, or the sale of illicit liquor, or its possession in large quantities.

4.

In any case, I am definitely of the view that the burden lies entirely on the prosecution to establish that the liquor recovered is of illicit origin vis-à-vis the spirits manufactured by any authorised distillery in this country or of any other distillery import of which is permitted.”

“8.

Bladder recovered contained liquor, which was poured into 14 bottles. As per the Chemical Examiner, the liquor had a composition different from the one manufactured in the distilleries of Haryana in respect of the ingredients noted therein. There is no evidence that in Haryana, only liquor having a composition manufactured in the distilleries of Haryana, with respect to the ingredients noted, is sold. In the absence of such evidence, the possibility of the liquor seized having a composition as manufactured at a place outside Haryana cannot be ruled out. Thus, the liquor cannot be said to be of an illicit nature. Even if it were licit liquor, a conviction sentence, of course, could be based on possession of more than the requisite quantity.”