State of H.P. vs Nav Katoch and Another

Surinder Singh, J.—The state has challenged the acquittal of the respondents, passed by the learned trial Court, in case No. 70/3 of 2001, decided on 1.1.2003 u/s 61(1)(a) of Punjab Excise Act, as applicable to the Himachal Pradesh.

In short, the prosecution case is that on Ist August, 2001 at about 7 p.m., a secret information was received by the police that two persons were consuming liquor in room No. 204 of H.P. Secretariat. PW6 Shakuntla, the then ASI posted in the Police Station Chhota Shimla, accompanied by two constables PW1 Rajinder Singh and Suman Kumar (not examined) reached the spot at 7.20 p.m. They found the respondents sitting in the said room on the chairs. Respondent Nav Katoch had kept a glass of liquor, half consumed in his draws and another glass having some contents of liquor was lying on the table amongst the files kept against the chair of respondent Hira Lal. The said ASI searched for the bottle and ultimately, she found �Prestige whisky� brand bottle behind the almirah. The contents of both the glasses were put into a nip and sealed with seal impression �H". The contents of the bottle alongwith it were also sealed with the same seal. Sample of seal was also taken on a piece of cloth. The respondents were arrested and taken for medical examination. Doctor opined that they were drunk but not intoxicated. The case property was taken into possession vide memo Ex.PW1/A. Site plan Ex.PW6/A was prepared. Thereafter, case property was deposited in the Malkhana with the MHC. Sample nip was sent through PW2 C. Rakesh Kumar alongwith seal to CTL Kandaghat, for its examination. The blood and the urine of the respondents was taken by the doctor and sent for the forensic examination. As per report Ex.PW6/B, the contents of liquor were also detected in it on analysis. As per the report of CTL Kandaghat, sample nip was found to be of liquor containing 14.2% proof alcohol.

After completing the challan, it was presented in the court for the trial of the respondents. They were charge-sheeted for the offence aforesaid. Respondents denied the guilt and claimed trial.

The prosecution examined its witnesses and the respondents were also examined under Sections 313 of the Code of Criminal Procedure. At the end of the trial, the respondents were acquitted on the grounds that there was a breach in the link evidence and non-compliance of Section 100(4) of the Code of Criminal Procedure.

Heard and gone through the record.

It stands proved on record that it was 7.20 p.m. on Ist August, 2001 when the respondents were found sitting in room No. 204 in H.P. Secretariat. They were drunk, but not intoxicated, as per the report of the doctor. But prosecution failed to prove on record the notification declaring the said place as a "public place" where consuming of liquor was prohibited to attract the provisions of the Act. Further the raid in the premises was made after the Sun set. The Investigating Officer did not record the reasons for not obtaining the search warrant. Further there was prior information to the police that the respondents were taking liquor in the room. No attempt was made to include two independent witnesses in order to satisfy the requirement of the provision of Sub-section (4) of Section 100 of the Code of Criminal Procedure. This apart, which is most damaging to the prosecution case is that it failed to prove that at the relevant time, the respondents were consuming the liquor while sitting in the office room in the Secretariat. Because the unconsumed part of the liquor which was allegedly taken into possession in a nip from the two glasses as alleged, to whom it was handed over and where it was kept by the Investigating Officer. There is no evidence worth the name to this effect. The Investigating Officer did not say that the case property was deposited with PW4 MHC Diwan Chand, whereas Diwan Chand stated that it was Bhim Singh, who deposited the case property with him, but said Bhim Singh has not been examined. Further, MHC did not say to whom the sample nip was handed over for its analysis on 2nd August, 2001 to PW2 C. Rakesh Kumar.

Prosecution though taken pains to examine PW2 Rakesh Kumar and it is he who has deposited the sample in the laboratory against R.C. No. 91, but he did not disclose the name of the MHC, who had handed over the case property to him nor the copy of the RC was placed and proved on record to show that it was PW2 Rakesh Kumar to whom the case property was entrusted on the aforesaid date for its deposit in the laboratory at Kandaghat alongwith sample of seal. The extract of the Malkhana register has also not been placed and proved during the trial of the case, with respect to the deposit and drawl of the case property. The report of the analysis has not been exhibited in this case nor it could be linked with the alleged recovery. There is a breach in the link evidence. The fact that the respondents were drunk at the time when the Investigating Officer had entered in the office that too in the evening after office hours, does not bring home the guilty of the accused for the offence charged.

Therefore, for the foregoing reasons, the order of acquittal passed by the learned trial court cannot be faulted with. Consequently, the appeal filed by the State is dismissed.

The respondents are discharged of their bail bonds entered upon by each of them at any stage during the proceedings of the case.

Send down the records.