State of H.P. vs Trilochan Singh

V.K. Ahuja, J.—This is an appeal filed by the State of H.P. against the judgment of the Court of learned Addl. Sessions Judge, Solan Camp at Nalagarh dated 10.2.2003, vide which, he set aside the conviction and sentence imposed upon the respondent by the learned trial Court for the offence u/s 61(i)(a) of the Punjab Excise Act, 1914, as applicable to Himachal Pradesh, hereinafter referred to as ''the Act''.

Briefly stated, the facts of the case are that on 10.2.1997 PW-6 SHO Rikhi Ram along with PW-2 HC Kirpa Ram and PW-1 HC Tejvir Singh, was present at Bagheri Check Post in connection with traffic checking and in the meantime accused came from Punjab side and he tried to run away on seeing the police party. On suspicion, he was apprehended. On search of the accused-respondent, 9 bottles of country liquor were recovered from his possession. Six samples were taken out of the bottles which were sealed at the spot and on receipt of the report of the Chemical Examination it was found that the liquor was country liquor. The challan was filed as against the respondent. The respondent was tried by the learned trial Court i.e. the Court of Sub Divisional Judicial Magistrate, Nalagarh and on conclusion of the trial, he was found guilty and was convicted and sentenced to simple imprisonment for a period of three months and to pay a fine of Rs. 5,000/-. In default of payment of fine he was further to undergo simple imprisonment for a period of one month. On appeal by the respondent, the findings were set aside by the learned Addl. Sessions Judge leading to his acquittal. Being aggrieved, the State has filed the present appeal.

I have heard the learned Counsel for the parties and have gone through the record.

On appraisal of the judgment passed by the learned Addl. Sessions Judge, it is clear that one of the grounds taken by him was that there is nothing on record that any attempts were made by the prosecution to join independent witnesses. He did not rely upon the testimony of the official witnesses examined and the explanation given for non-joining of independent witnesses that no independent witnesses were available, was held not to be satisfactory.

In his statement of PW-2 has stated that Langri (cook) was present at the relevant time at the barrier and he was not joined as an independent witness and this had weighed in the mind of the learned Addl. Sessions Judge in disbelieving the prosecution version. PW-1 HC Tejvir Singh was a member of the raiding party. He admitted that there are four employees posted at the check post and there are 1-2 shops and one liquor vend is at distance of 200/300 yards from the check post.

PW-2 HC Kirpa Ram, also a member of the raiding party, had denied that there was any shop near the barrier which fact was admitted by PW-1 HC Tejvir Singh. He stated that the village Bagheri is at a distance of 3-4 K.Ms from the barrier. He admitted that there was a shop and a Dhaba at the barrier and one Langri was present there at the relevant time. PW-6 SHO Rikhi Ram, in charge of the raiding party has stated that the village Bagheri is at a distance 1-1/2 Kms. which is contradictory to the statement of PW-2 who has stated that the village is at a distance of 3-4 Kms from the barrier. He also denied his knowledge in case a truck was standing in which driver, cleaner or some other persons were present.

It is clear from the above discussion of the evidence that there were shops nearby and abadi was at some distance and there was also a truck standing in which there were driver, cleaner and one Langri was also present at the spot. The compliance of the provisions of Section 100(4) Cr.P.C. are mandatory which provides that two independent and responsible witnesses of the area shall be associated at the time of search and in case the Investigating Officer is unable to comply with the aforesaid provisions, he must give satisfactory explanation for non-joining of the independent witnesses. In the present case, the compliance of the provisions of Section 100(4) Cr.P.C. was not done and the explanation that attempts were made to associate independent witnesses but those were not available, was not accepted by the learned Sessions Judge. The learned trial Court has also referred to contradictions in the statements of the prosecution witnesses in regard to the fact that the accused tried to run away behind the barrier or ahead of the barrier.

Apart from the above, the learned Sessions Judge has observed that the seal in question was not produced during the trial and the learned trial Court has relied upon a decision of this Court in State of Himachal Pradesh v. Meen Singh 1999 (3) Shim.L.C. 454. A perusal of this judgment shows that the seal so used had not been produced in the Court. However, other reasons were also given in not relying upon the testimony of the prosecution witnesses and thus the learned Sessions Judge has rightly held that the prosecution had failed to prove their case as against the respondent beyond any reasonable doubt and the final findings recorded by the learned Addl. Sessions Judge, cannot be termed as perverse, calling for an interference by this Court.

In view of the above discussion, I accordingly hold that there is no merit in the appeal, which is dismissed. The bail bonds furnished by the respondent shall stand discharged.