The Himachal Pradesh High Court dismissed an appeal filed against the judgment dated 19.06.2010, passed by learned Judicial Magistrate First Class vide which respondent (accused before the learned Trial Court) was acquitted of the commission of an offense punishable under Section 61(1)(a) of the Punjab Excise Act. The Court observed that where the police had not joined the independent witnesses despite opportunity and availability, the prosecution case cannot be discarded but it is required to be seen with due care and caution.
Brief Facts:
ASI Tapender Singh had gone patrolling on 13.03.2006. At about 5:30 a.m. a Maruti car was signalled to stop. The driver was asked to produce the documents of the car; however, he got frightened of seeing the police. The driver could not produce any documents of the vehicle. The police checked the vehicle and found boxes of country liquor on the rear seat and a dickey. The police demanded a permit for transporting the liquor but the driver and the occupant of the vehicle could not produce any permit. The learned Trial Court framed the charges against the accused for the commission of an offense punishable under Section 61(1)(a) of the Punjab Excise Act. The learned Trial Court held that the police did not associate any independent witnesses. There is no evidence that the sample seal was sent with the samples. Hence, the accused were acquitted by the learned Trial Court. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been preferred.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the prosecution has proved its case beyond a reasonable doubt. The learned Trial Court erred in discarding the evidence led by the prosecution. It was duly established that both the accused were found in possession of 15 boxes — each box containing 12 bottles of country liquor of Patiala Orange.
Contentions of the Respondents:
The learned counsel for the respondent supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same.
The Court noted that there is no evidence that the sample seal was handed over to MHC Inder Pal, who had handed it over to Constable Subhash Chand.
The Court observed that failure to comply with the requirements of Section 100(4) of Cr.P.C. will not be fatal to the prosecution. Where the police had not joined the independent witnesses despite opportunity and availability, the prosecution case cannot be discarded but it is required to be seen with due care and caution. Therefore, the accused cannot be acquitted merely because the prosecution has not complied with the requirement of Section 100(4) of Cr.P.C. However, the testimonies of the police officials are required to be seen with due care and caution.
The Court remarked that the learned Trial Court had rightly held that in the absence of evidence of sending the sample seal along with case property, the link evidence is missing. Before the reliance can be placed on the tangible evidence, the link evidence has to be led to establish that there was no tampering with the same.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the appeal, held that the learned Trial Court rightly declined to place reliance upon the prosecution version.
Case Title: State of H.P. v Joginder Singh &Anr.
Coram: Hon’ble Justice Rakesh Kainthla
Case no.: Cr. Appeal No. 92 of 2011
Advocate for the Appellant: Mr. Prashant Sen
Advocate for the Respondents: Ms. Dhanwanti
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