Himachal Pradesh High Court
(By Sh. Nand Lal Thakur vs Narinder Singh on 18 August, 2021
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
ON THE 18TH DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL APPEAL No.231 of 2010
Between:-
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STATE OF HIMACHAL PRADESH
(BY SH. NAND LAL THAKUR, ADDITIONAL
.....APPELLANT
ADVOCATE GENERAL, WITH SH. RAM LAL THAKUR
AND SH. SUNNY DHATWALIA, ASSISTANT
ADVOCATES GENERAL.)
AND
1. NARINDER SINGH
SON OF SHRI HARI CHAND,
RESIDENT OF VILLAGE BASKWARA,
TEHSIL & POLICE STATION JAWALI,
DISTRICT KANGRA, H.P.
2. RAJEEV SINGH,
SON OF SHRI HARBHAJAN SINGH,
RESIDENT OF PATTA CHATIAN,
TEHSIL & POLICE STATION JAWALI,
DISTRICT KANGRA, H.P.
.....RESPONDENTS
(BY SH. GAURAV GAUTAM, ADVOCATE)
_________________________________________________
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This appeal coming on for orders this day, the
Court passed the following:
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JUDGMENT
FIR 217 dated 13.11.2002 Registered in Police
Number Station Jawali, District Kangra, H.P. under
Sections 61(1)(a) of Punjab Excise Act,
1914, as applicable to the State of H.P
Trial Court 17-III/04 Decided on 07.12.2009 by JMFC,
Case No. Jawali, District Kangra, H.P.
Challenging the acquittal for transporting liquor
without licence and in violation of Section 61(1)(a) of Punjab
Excise Act, 1914, as extended to the State of H.P., the State
has come up before this Court.
2. On 11.11.2002, at 10.30 p.m., the police party
comprising of ASI Mohammad Arshad (PW-5), Constable
Vijay Krishan, HHC Ashok Kumar (PW-1), HHG Ranvir
Singh were patrolling in the official vehicle under the
supervision of Dy.SP, Jaram Singh. The police officials were
patrolling with a view to detect crime and for that purposes,
they had erected a Naka at place hear Harsar. One jeep came
from the side of Nagrota Surian. The police officials signaled
it to stop. On seeing the police party, the driver of the jeep
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tried to drive the jeep in the reverse direction. It raised
suspicion in the mind of the investigator and the jeep was
chased with the police gypsy. Subsequently, the jeep
alongwith the driver was intercepted. On inquiry, the driver
revealed his name as Narinder Kumar (A-1) and there was a
person sitting alongwith him, who revealed his name as
Rajeev Singh (A-2). On a cursory search of the jeep, it had
cartons of country as well as English liquor. The police
officials asked the driver to show permit for transporting the
liquor. However, neither the driver nor the persons sitting
alongwith him could produce any such permit. After that, the
investigator checked those cartons.
3. Subsequently, as per seizure memo, Ex.PW-1/A,
the police officials recovered 35 cartons of country made
liquor, Patiala Orange and every carton had 12 bottles,
containing 750ml each. Apart from that, the police recovered
10 cartons of Bagpiper English liquor and every carton had
12 bottles. Furthermore, the police officials recovered 4
cartons of Double Dog, IMFL, and each carton had 12
.
bottles.
4. Police took out one bottle each from the cartons of
country liquor, Bagpiper and Double Dog and sealed those
for the purpose of sending to CTL and sealed with seal
possession vide memo.
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impression 'T'. The remaining liquor was taken into
5. After that seizure memo, Ex.PW-1/A, was scribed
and signatures of police officials i.e. Vijay Krishan, HHG
Ashok Kumar (PW-1) were obtained as witnesses and
accused persons also signed the said memo.
6. Subsequently, the police officials wrote a ruka,
Ex.PW-5/B containing all such seizures, and sent the same
for registration of FIR. Based on such ruka, police registered
the FIR captioned above.
7. The investigator took into possession the jeep, its
documents and also arrested the accused persons and brought
the liquor and the accused persons to the police station.
8. On reach the police station, the investigator
handed over the liquor to the MHC Rakesh Kumar, (PW-6).
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MHC sent the samples for testing to CTL. Vide reports of the
laboratory, Ex.PW-4/A to Ex.PW-4/H, the bottles contained
alcohol and were tested as liquor.
9. After completion of the investigation, officer-in-
charge of the police station launched prosecution against
respondents for the commission of offence captioned above.
10. Vide order dated 06.06.2005, learned ACJM
framed the charges against the accused for carrying
aforesaid liquor without permit, which amounted to an
offence punishable under Section 61(1)(a) of Punjab Excise
Act, 1941, as applicable to the state of H.P. Both the accused
did not plead guilty and claimed trial.
11. In the trial prosecution examined all the police
officials as their witnesses and tendered in evidence the
report of laboratory under Section 293 of Cr.P.C.
12. The accused in their statements under Section 313
of Cr.P.C, recorded on 08.01.2007, denied all the
circumstances, except that they were in custody from
13.11.2002 up to 15.11.2002. Both of them pleaded
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innocence but did not lead any evidence in defense.
13. Vide the aforesaid judgment, learned trial Court
dismissed the prosecution case and acquitted the accused
persons of the charges.
14.
Challenging the said acquittal, the State has come
up before this Court by way of present appeal.
15. I have heard the learned counsel for the parties
and have gone through the record of the case with utmost
care.
16. Mr. Ram Lal Thakur, learned Assistant Advocate
General, based his arguments on paragraphs No.4, 5 and 6 of
the grounds of appeal. Learned counsel argued that non-
examination of Dy.SP, Jaram Singh, is inconsequential so is
non-examination of other police witnesses.
17. To the contrary, Mr. Gaurav Gautam, learned
counsel for both the accused stated that the time of incident
was just around 10:00 p.m., and the place was habitated,
despite that no independent witnesses was examined.
Furthermore, the Dy.SP, Jaram Singh, who was gazetted
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officer and present with the police officials, was not
examined. It creates a doubt in the case of the prosecution.
ANALYSIS AND REASONS
18. A perusal of the Ruka, Ex.PW-5/A, on the basis of
which, FIR mentioned above was registered, is silent about
the material aspect. As per the statement of police officials
PW-1, Ashok Kumar and PW-5, ASI Mohammad Arshad,
corroborated by averments in Ruka, Ex.PW-5B, the police
officials were on patrolling duty in a vehicle 11.11.2002, at
night time. It is also mentioned in the ruka, Ex.PW-5/B, that
the said patrolling was being conducted under the supervision
Dy.SP. Whenever a police team would leave the premises of
the police station, then daily diary entry is made to that effect.
In the present case, it was not only the ASI and other officials
who had gone on patrolling, but as per prosecution's own
case, the patrolling party was being supervised by of Dy.SP,
whose name was not mentioned in ruka. In the evidence, the
name of Dy.SP is revealed as Janam Singh. Despite that, the
prosecution did not tender in evidence the extract of daily
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diary, mentioning the departure of aforesaid police officials.
It assumes importance because the prosecution did not take
photographs of the spot, while conducting search and seizure.
Had there been photographs, then those photographs would
19. to
have proved the search and seizure at the spot.
As per the prosecution's own case, as revealed
from the memos and statements of the prosecution witnesses,
sealing and sampling had taken place at the spot. Such
process required cloth and sealing material, apart from seals.
If the police officials had left the police station alongwith
investigation kit, then it should normally be mentioned in the
daily dairy and the non-mentioning of such I.O. investigation
kit, can only be believed as an error if photographs of the spot
corroborate the same or independent witnesses prove it. In
the present case, neither the investigator took any
photographs at the spot nor associated any independent
witnesses from the locality. Given above, the factum of
departure from the police station, the manner in which
accused were nabbed and search and seizure at the spot
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itself is not proved beyond reasonable doubt.
20. Although the statements of the police officials is
of equally important, however, the Legislature in some cases
has given special treatment to the gazetted officers, i.e. NDPS
Act. As per the prosecution case, Dy.SP was present with the
police. Despite that, the prosecution chose not to examine
him. The general experience shows that the Public Prosecutor
does not call the higher officers in the witness-box even if it
fails the entire prosecution case itself. The learned Public
Prosecutors forgot that they are not subordinate of the police
officials, but unfortunately, they themselves give undue
importance to the higher police officials, as was done by not
examining the Dy.SP in the present case.
21. The time of occurrence was 10.20 p.m. The plains
of Himachal Pradesh are comparatively warmer in
comparison to the hills, thus, it was possible to associate
witnesses. It has come in the cross-examination of PW-1,
HHC Ashok Kumar, that at a distance of 1500 mtrs. there
were 15-20 house. Similarly, it also came in the statement of
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the investigator, PW-5, that there were 10-15 villages in
between Jawali to Nagrota Surian. Although, he denied that
10-15 house were there near to the place of occurrence, but
he stated that those were cow-sheds. Thus, with a view to
overcome the
contraction of
Ashok Kumar, PW-1, the investigator, PW-5, Mohammad
r HHC
Arshad, forgot that if there are cow-sheds then there would be
even care takers. Thus, this is a flimsy excuse for non-
associating independent witnesses.
22. In the entirety, non-examination of Dy. SP, non-
association of independent witnesses and non-tendering in
evidence the daily diary report, which mentioned about the
departure of the police officials, creates a doubt about the
case of the prosecution and it cannot be terms as proved
beyond reasonable doubt.
23. I have gone through the judgment of acquittal
passed by learned trial Court, which is well reasoned and
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does not call for any interference by this Court.
Given above, there is no merit in the present
appeal and the same is accordingly dismissed.
(Anoop Chitkara),
Judge
August, 18, 2021
(R.Atal)
