CR.R/207/2008 on 19 September 2016

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 207 of 2008.

Date of Decision: 19.9.2016. ______________________________[_____________________________ Sanjeev Kumar

……...Petitioner.

Versus State of H.P.

..……....Respondent.

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting1? Yes

For the petitioner: M/s. B.S. Thakur and Mr. Y.P. Rana, Advocates.

For the respondent: Mr. Rupinder Singh Thakur, Additional

Advocate General, with Mr. Rajat

Chauhan, Law Officer. ________________________________________________________

Sandeep Sharma, J. (Oral).

The present criminal revision petition filed under Sections 397 & 401 of the Cr.PC, is directed against the judgment dated 19.11.2008, passed by the learned Sessions Judge, Hamirpur, HP, in Criminal Appeal No. 63 of 2008, titled “ Sanjeev Kumar v. State of Himachal Pradesh”, affirming the judgment dated 1.8.2008, passed by the learned Chief Judicial Magistrate, Hamirpur, HP, in Criminal Case No. 168-I of 2007/55-III of 2007, titled “State of Himachal Pradesh v. Sanjeev Kumar,” whereby Whether reporters of the Local papers are allowed to see the judgment? Yes.

accused-petitioner, has been sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 5,000/- and in case of default to undergo simple imprisonment for a period of one month for the commission of offence punishable under Section 61 (1) (a) of the Punjab Excise Act, 1914, (In short “the Act”), as applicable to the State of Himachal Pradesh.

2. In nutshell, case of the prosecution is that on 13.11.2006, ASI Karam Singh of CIA Staff, Hamirpur, conducted a raid in the shop of the petitioner-accused namely Sanjeev Kumar alias Babu, after receipt of secrete information. Police had information that accused-petitioner was indulging in illicit sale of liquor from his shop. Raiding party headed by Karam Singh after associating independent witnesses namely Puran Chand and Suresh Kumar was formed and the search of the shop of the accused was conducted, wherein the accused had concealed 24 bottles of country liquor “Una No.1” and 6 bottles of whisky ‘Officers Choice” in the store of his shop under gunny bags. Police after recovery of the aforesaid bottles confiscated these bottles vide Ext.P1 to P27. Two bottles of country liquor and one bottle of ‘Officers Choice” whisky, were separate as sample, which were sealed with seal ‘X’ and specimen seal impressions were taken separately on Ext.PW8/C. The bottles were taken in possession vide memo, Ext.PW8/B and after use, the seal was handed over to the witness Puran Chand for safe custody. Police also prepared the site plan Ext.PW8/D and arrested the accused. Case property was deposited with MHC, PS Sadar Hamirpur and thereafter, sample bottles were sent to CTL Kandhaghat, wherefrom the report Ext.PW8/G was received to the effect that the samples were of country liquor and whisky respectively fit for human consumption. After investigation, the police being satisfied that prima facie case exists against the accused filed challan in the competent court of law against the petitioner- accused for having committed offence under Section 61 (1) (A) of the Act. Learned Chief Judicial Magistrate, Hamirpur after satisfying itself that prima facie case exists against the accused, framed the charge under the act, to which, accused pleaded not guilty and claimed trial.

3. Learned trial Court on the basis of evidence adduced on record by the prosecution, found the present petitioner accused guilty of having committed offence under Section 61(1)

(A) of the aforesaid Act and accordingly, convicted and sentenced him as description already given supra.

4. Feeling aggrieved and dissatisfied with the judgment of conviction passed by the learned trial Court, accused, filed an appeal under Section 374 of the Cr.PC, before the learned Sessions Judge, Hamirpur, HP, which was dismissed vide judgment dated 19.11.2008. Hence, the present criminal revision petition before this Court.

5. Mr. B.S. Thakur, Advocate, duly assisted by Mr. Y.P. Rana, Advocate, representing the petitioner, vehemently argued that impugned judgments passed by the courts below are not sustainable in the eye of law as the same are not based upon the correct appreciation of the evidence available on record. Mr. Thakur, contended that learned courts below have failed to appreciate the evidence adduced on record by the prosecution in its right perspective and as such, same cannot be allowed to be sustained. Mr. Thakur, further contended that perusal of the record nowhere suggests that there was any evidence to prove that the alleged liquor on the basis of which, FIR Ext.PW7/A was registered against the petitioner, was recovered from the conscious possession of the petitioner and as such, courts below erred in holding the petitioner accused for having committed offences under the Act. It is also contended on behalf of the petitioner that since prosecution had failed to prove the actual physical and conscious possession of liquor with the petitioner, the judgment passed by the courts below are bad in the eye of law and are liable to be set-aside. During the arguments having been made on behalf of the petitioner, Mr. B.S. Thakur, also invited attention of this Court to the evidence led on record by the prosecution to demonstrate that there is no consistency in the depositions made by the prosecution witnesses, rather, version put forth by these PWs was not trustworthy and no conviction could be recorded on the basis of their statements. Mr. Thakur, forcefully contended that the learned trial Court while convicting and sentencing the petitioner failed to appreciate that two alleged independent witnesses associated by the police officials categorically deposed that nothing was recovered from the petitioner in their presence. Since independent witnesses had not supported the case of the prosecution, courts below should have refrained from giving much credence to the official witnesses who had miserably failed to prove on record that alleged liquor was recovered from the conscious possession of the petitioner. Mr. Thakur also stated that perusal of the version put forth by the official witnesses of the prosecution are contrary in nature and nowhere proves the case of the prosecution that liquor was recovered from the conscious possession of the petitioner. Similarly, Mr. Thakur pointed out that no evidence worth the name was led on record by the prosecution to prove the ownership of the petitioner qua the store/shop, wherefrom alleged liquor was recovered. Counsel representing the petitioner pleaded that since petitioner claimed that store from where the alleged liquor was recovered, does not belong to him, onus was upon the prosecution to prove that store belonged to the accused. Mr. Thakur further argued that the prosecution has been not able to prove its case beyond reasonable doubt and as such, the petitioner could not be convicted for the said offence. Mr. Thakur also contended that recovery of liquor has been not proved by the prosecution because admittedly as per the record, 24 bottle and 6 bottles were found in the gunny bags but admittedly two bottles and one bottle were separated and sent to CTL

Kandhaghat for chemical analysis, whereas as per law of recovery, all bottles were required to be sent for chemical analysis.

6. In this regard, reliance is placed on the judgment passed by this Court in State of HP v. Jagjit Singh, Latest HLJ 2008 (HP) 919 wherein this Court has observed in paras 6 and 7 as under:- “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 illegally 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.”

Mr. Thakur also invited attention of this Court to the judgment passed by both the courts below to demonstrate that no seal was produced in the court and as such, judgment deserves to be quashed and set aside.

7. Per contra, Mr. Rupinder Singh Thakur, learned Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, appearing on behalf of the respondent-State, supported the impugned judgments passed by the courts below. Mr. Rupinder Singh Thakur, vehemently argued that bare perusal of the impugned judgments suggests that same are based upon the correct appreciation of the evidence available on record and prosecution has been able to prove its case beyond reasonable doubt. Mr. Rupinder contended that in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted and this Court has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence, especially when it stands duly proved on record that the courts below have dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:- “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 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 re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”

8. I have heard the learned counsel for the respective parties and gone carefully through the record.

9. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re- appreciate the evidence available on record. But in the present case, where accused has been found guilty having committed offence under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of HP, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case.

10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ ble Apex Court in Krishnan and another Vs. Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced herein below:- “8.The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.”

11. In nutshell, case of the prosecution is that after receipt of secrete information, police/raiding party conducted the raid in the shop of the petitioner. Prosecution also claimed that since information was credible and delay in procuring the search warrant could have also destructed all the case property, no search warrants were procured before conducting raid. The recovery memo Ext.PWB/A was prepared and sent to Police station, on the basis of which, FIR Ext.PW7/A was registered.

Accordingly, after registration of FIR, police associated independent witnesses namely Puran Chand and Suresh Kumar at the time of raid by raiding party. Police recovered allegedly 24 bottles bearing mark ‘Una No.1” and 6 bottles of “Officers Choice” (Ext.P1 to P27) from the shop of the petitioner accused in the presence of the aforesaid independent witnesses. Since the petitioner was unable to show any permit qua the possession of aforesaid bottles, bottles recovered from his shop were confiscated and taken into custody vide seizure memo Ext.PW8/B. As per prosecution story two bottles bearing mark “Una No. 1” and one bottle bearing mark “Officers Choice” were separated as sample for sending the same to CTL Kandhaghat for chemical examination. As per prosecution, bottles of samples were sealed with seal ‘X’ and specimen seal impressions were taken separately on Ext.PW8/C. Seal after use was handed over to independent witness namely Puran Chand for safe custody. Case property was deposited with PW3 Head Constable Suresh Kumar who deposited the same in Malkhana and sent the same vide RC No.160 of 06 to CTL, Kandhaghat for chemical examination. CTL, Kandhaghat submitted report of chemical examination vide

Ext.PW8/G, wherein it was reported that samples of country liquor contained 50% alcohol each and samples of IMFL contained 75.1% alcohol.

12. Before proceeding to analyze the evidence adduced on record by the prosecution, this Court solely with a view to ascertain correctness and genuineness of the submissions having been made on behalf of the counsel representing the petitioner that two bottles bearing mark “Una No.1” and one bottle bearing Mark “Officers choice” were opened and one sample out of each were taken out of each bottle for sending the same to the CTL Kandhaghat for chemical examination, examined record of court below, perusal whereof clearly suggests that though police had recovered 24 bottles of country liquor namely “Una No.1” and 6 bottles of IMFL namely “Officers Choice” from the shop/store of the petitioner accused but only two bottles of Una No.1 and one bottle bearing mark officers choice were opened and one sample each was taken out of each bottles for sending the same for chemical analysis. It has also come in the statement of PW2 Kamlesh Kumar that after receipt of the secrete information, shop of the petitioner accused was searched, wherein out of recovered 24 bottles bearing Una No.1 and six bottles bearing officers choice, two bottles of country liquor and one bottle “Officers Choice” was retained as sample which was sealed with seal-X. Similarly, ASI, Karam Chand also stated that two bottles bearing mark ‘Una No.1” and 1 bottle “Officers Choice” were retained as samples and were sealed with seal-X. Undisputedly, as emerge from the record that two bottles bearing mark “Una No.1” out of 24 bottles bearing mark Una No.1 and one bottle bearing mark “Officers Choice” were opened and one sample each was taken from each bottle for sending the same for chemical analysis. At this stage, if it is assumed that the contraband was actually recovered by the police party from the shop of the accused, they did not take samples from all the bottles recovered by it but only three bottles were separated for taking samples. It also emerge from the record that none of prosecution witnesses have deposed that samples were drawn from the remaining bottles. Since no samples were drawn from remaining bottles, it cannot be said that all bottles were containing liquor inside but this aspect has not been considered by the courts below while holding the petitioner guilty of having committed offence under the aforesaid Act. Hence, prima facie, it appears that prosecution has failed to prove the recovery of the 24 bottles of country liquor and six bottles of IMF liquor against the accused beyond reasonable doubt and as such, judgments of courts below are not sustainable in the eye law.

13. At this stage, it would be apt to refer to the judgment passed by this Court in “Jagjit Singh” case supra. Careful perusal of the judgment supra suggests that before convicting the accused, it was incumbent upon the prosecution to prove that the accused was in actual and conscious possession of the illicit liquor in excess of prescribed limit. Since in the case, referred above, 71 pouches of liquor were allegedly recovered from the accused but only 1 pouch was sent for chemical analysis, the Hon’ble Court came to conclusion that prosecution could only prove that respondent accused was only in possession of the one pouch of 180 M.L. country made liquor which is not an offence.

14. In the present case, also if the ratio of the judgment referred herein above is applied to the present case, it clearly emerges that prosecution could only prove that the petitioner accused was in possession of two bottles bearing mark Una No. 1

and 1 bottle of officers choice, which was not beyond prescribed limit. Hence, it can be concluded that only recovery of three bottles was effected not of 30 bottles and at best, the accused can be considered carrying one bottle beyond permissible limit and as such, present offence is bailable. Section 378 1(a) clearly provides that no appeal is maintainable in bailable offence, which reads as under:-

378. Appeal in case of acquittal-[(1) Save as otherwise provided in Sub-Section (2), and subject to the provisions of Sub-Sections (3) and (5),-- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (2). If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of Sub-Section (3), also direct the Public Prosecutor to present an appeal—

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision].

15. At this stage, Mr. Rupinder Singh Thakur, stated that admittedly in the present case, 24 bottles of Una No.1 and three bottles of Officers Choice Ext.P1 to P27 were recovered from the shop of the petitioner and out of 24 bottles, two bottles bearing mark Una No.1 and one bottle bearing mark “officers choice” were opened and sent for chemical analysis but as per him, three bottles taken as sample, as referred above, were sufficient to confirm the contents of the remaining bottles, hence, there is no illegality and infirmity in the judgments passed by the courts below. It clearly emerges from the record that samples were only drawn from three bottles out of 30 bottles allegedly recovered from the shop of the accused, as a result of which, there is effective recovery of only three bottles, as has been discussed herein above and as such, this Court sees no force in the submission made by Mr. Thakur, that sample withdrawn by the police at the time of recovery from three bottles were sufficient to determine the quantity and nature of the liquor.

16. At this stage, reliance is placed on the judgment passed by this Court in case titled “Surender Singh. V. State of H.P.”, 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, police did not take samples from all the boxes. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes were sealed; from 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 Cr.L.J. 1346; State of H.P. versus Ramesh Chand, Latest HLJ 2007

(2) 1017; 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, acquitted the accused, as prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes.

28. As per version of PW-1, outside the boxes ‘Sirmour No.1’ was printed which version stands denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were in fact containing liquor. 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.”

17. In the present case, as per prosecution story, out of 24 bottles of country made liquor and six bottles of Officers choice recovered from the shop of the accused, two bottles of country made liquor and one bottle of Officers Choice were separated for sample and were sealed with seal -X and specimen impression were taken separately on Ext.PW8/C.

18. PW1 constable PW1 Shyam Lakhan Pal stated that he was accompanying ASI Karam Singh, when he received secrete information about illicit selling of liquor by the petitioner. He also stated that he was handed over Rukka, which he took to police station and brought the case file to the spot. He also stated that on November 17, 2006, MHC had handed over the sample bottles and specimen seal impressions, which he deposited at CTL in the same condition.

19. PW2 Constable Kamlesh Kumar stated that he was also present in shop of the accused with the I.O. The shop of the accused was searched wherein 24 bottles of Una No. 1 and 6

bottles of whisky, were recovered without any licence/permit. He also stated that three bottles of sample were separated and sealed with seal-X and the case property was taken into possession vide memo Mark-A. However, in his cross examination, he denied that the liquor was recovered from the store of Sita Ram and Kanshi Ram. He also stated that he does not remember as to whether some residents of Uttar Pradesh were tenants in the place, fromwhere the liquor was recovered and raid was conducted at some other place on that day.

20. PW3 Suresh Kumar, independent witness did not support the case of the prosecution. However, in his cross examination by learned APP, he categorically denied the recovery of liquor from shop of the accused in his presence but fact remains that in his cross examination, he admitted that the memo was signed by him.

21. PW4 Puran Chand, was also associated by the police as an independent witness while carrying raid but he did not support the case of the prosecution. PW5 Head constable Vijay Parkash, who was MHC at the Police Station Hamirpur on that day, stated that the case property was deposited with him on

November, 13, 2006 and he sent sample parts on November, 17, 2006 to CTL Kandhaghat in sealed condition through Constable Lakhanpal vide RC, copy of which is Ext.PW5/A.

22. PW8, ASI Karam Singh stated that he was heading the police party. He also stated that at about 6:35pm, they received a secret information that the accused was indulging in illicit sale of liquor from his shop and accordingly, he sent Rukka Ext.PW8/A to the police station for registration of the case on the basis of which FIR Ext.PW7/A was registered. He also stated that independent witnesses were also associated in raiding party. It has also come in his statement that he searched store/shop of the accused, wherein 24 bottles of country liquor and 6 bottles of whisky were recovered under the empty gunny bags and out of which two bottles of country liquor and one bottle of whisky were taken out as sample for chemical test and samples were sealed with seal-X. He also stated that remaining case property was taken into possession vide memo Ext.PW8/B and specimen seal impression was taken on Ext.PW8/C. It has also come his statement that seal after use was handed over to PW4 Puran Chand. In his cross examination however, he denied the suggestion that on the same day, police had conducted raid at Masyana and Dulehra. He also denied the suggestion put to him that the store/shop belonged to Sita Ram and Kanshi Ram. He also denied the suggestion that when party raided the shop, accused Sanjeev Kumar was not there.

23. Careful perusal of aforesaid evidence led on record clearly suggests that independent witnesses associated by the police at the time of carrying out raid in the alleged premises of the petitioner accused, have not supported the case of the prosecution at all, rather both the independent witnesses have denied the recovery, if any, of the alleged contraband in their presence. However, PW3 Suresh Kumar admitted his signatures on the memo but close scrutiny of all the official witnesses clearly suggests that out of total 30 bottles (24+6), only three samples were drawn as discussed above, which were later on sent for chemical analysis and as such, it stands duly proved on record that no samples, if any, were drawn from the remaining 26 bottles meaning thereby, recovery, if any, of the illicit liquor as referred above, was of 3 bottles as has been held in the judgment referred above passed by coordinate bench of this Court.

24. Interestingly, seal-X with which samples drawn out of recovered contraband were allegedly sealed was never produced in the trial Court by the Puran Chand, to whom seal was handed over after sealing the same. This witness in cross examination denied the suggestion put to him by the prosecution that after drawing samples from two bottles of country made liquor and one bottle whisky was sealed with seal-X and thereafter, seal was handed over to him. He also stated that police had got his signatures on his statement Mark-A when there was nobody at the spot. He also stated that police people met him on the road and they did not carry out any proceedings.

25. Since, it was specific case of the prosecution that after drawing samples, same were sealed with seal-X and after use, seal was handed over to the witness Puran Chand for safe custody, it was incumbent upon the prosecution to produce seal allegedly handed over to witness Puran Chand in the Court. But interestingly, in the present case, neither Suresh Kumar PW3 admitted the sealing of samples with seal-X nor proseuciton was able to produce seal-X in the court and as such, this Court is compelled to draw adverse inference that no recovery was effected from the shop of the petitioner-accused and no samples were drawn as submitted by the prosecution. In the present case, as has been discussed earlier, police had drawn samples from 2 bottles of country liquor and one bottle from “Officers Choice”, which were sent for chemical analysis. As has emerged from the statement of PW3, no seal, whatsoever was produced before the Court, which has rendered the story of the prosecution unreliable and untrustworthy and cannot be relied upon in the totality of the facts and circumstances.

26. Prosecution has miserably failed to prove the recovery of the liquor from the possession of the accused. Though, material prosecution witnesses unequivocally stated that after drawing samples, same were sealed with seal-X but since same was not produced in the Court, recovery is doubtful. Non-production of seal in the Court has rendered the story of proseuciton untrustworthy and doubtful.

27. In this regard, reliance is placed on judgment rendered by the Hon’ble Apex Court in State of Rajasthan v. Gopal, 1998 (8) SCC 499, relevant paras of the aforesaid judgments is reproduced herein below:

“2. In passing the order of acquittal, the High Court has noted that the seizure of the narcotic substance was doubtful because the seal on the sample sent for chemical analysis could not be compared with the seal on the seized article kept in the Police Malkhana because the seal on the sample sent to analyst could not be produced in the Court for verification. Even the seal which was put on the seized article kept in the Police Malkhana could not be ascertained excepting the word “Ajmer”. It may be stated here that since the said article had been seized on the railway platform according to the prosecution case, the seal of the Stationmaster had been used, but the Stationmaster was not examined to prove whether the seal put on the sized article and kept in the Police Malkhana really contained the seal of the Stationmaster.”

28. Reliance is also placed on judgment passed by our own High Court in Nanha v. State of H.P., Latest HLJ 2011 (HP) 1195. Paras No. 7 to 9 are extracted herein below:- “7. Adverting to the points urged by learned counsel appearing for the appellant that the seal used has not been produced in court, we note that this Court in Criminal Appeal No. 308 of 1996, decided on October 21, 2009, State of H.P V. Tek Chand, reported in Latest HLJ 2010(HP)497,Holds- “9 PW1 Hukam Chand , MHC, with whom the case property was deposited by PW 4 Ravinder Singh, also did not say that any specimen seal impression has been deposited along with parcel containing the samples and the bulk Charas. It is only PW2 HC Raj Sigh , who took over the charge of MHC from PW1 Hukam Chand, who stated that he sent one of the two samples along with sample seals to the Chemical Examiner, through Constable Mani Ram. Mani Ram who was examined as PW3, did not say that any specimen seal impressions were also carried by him along with the sample. He simply stated that he carried one sealed parcel which was handed over to him PW2 HC Raj Singh. On the docket with which the sample was sent to the Chemical Examiner i.e. Ext.PC, facsimiles of the seals used in sealing the parcels are not there. That means specimen impressions of the seals used in sealing the sample parcels, which was sent to the laboratory, were not available with the Chemical Examiner, for comparison with the seal impressions on the parcel containing sample . Therefore , the report Ext. PC cannot be said to have been sufficiently linked with the samples allegedly separated from the recovered stuff.

8. Adverting to the facts on record, we find from Ext. PW-8 /A that the facsimile of the seal not having been affixed on this document. Further we also note that PW-5 Constable Yoginder Singh states; “………All the parcels were sealed with seal ‘D’ initially. The seal ‘S’ was made of some metal. The seal has not been brought by me today as the same has been lost. No report qua missing of the seal was lodged by me with anyone .

9. The seal was in possession of the prosecution as established form the evidence of PW-7 Constable Ramesh Kumar, who says that he had deposited this in the Kandaghat Laboratory. What happened to the seal after that is not clear neither it is clear as to why the facsimile is not affixed on the NCB form.”

29. Apart from above, none of the PWs stated anything with regard to the seal, if any, of remaining 26 bottles. Similarly, there is no mention, if any, in the statements of the PWs qua tag of FIR, if any, on the remaining bottles allegedly recovered from the shop of the accused. Though, PW8 and PW10 stated that after recovery of 30 bottles, three bottles were drawn as sample, but he did not state anything qua the remaining 26 bottles.

30. Combined reading of statements of all the prosecution witnesses clearly suggests that no number of FIR was tagged on the bottles allegedly recovered from the shop/store of the accused, which itself render the story of recovery put forth by the proseuciton doubtful. The case of prosecution is doubtful, especially in view the statements of PW3 Suresh Kumar and PW4 Puran Chand, who were associated as independent witnesses by the police at the time of raid. All the prosecution witnesses stated that seal having impression “X” after its use was handed over to PW4, but fact remains that seal was never produced in the trial Court. This very omission on the part of the prosecution has rendered the story of prosecution unreliable and untrustworthy. Similarly, omission of police not to seal the remaining case property at the time of alleged recovery, is not minor discrepancy rather, it has vitiated the entire recovery, if any.

31. Consequently, in view of the aforesaid discussion, where admittedly there was only effective recovery of three bottles, accused could only be considered carrying one bottle beyond the permissible limit, which was admittedly bailable offence, hence judgments passed by the Courts below deserve to the quashed and set-aside. The present petition is allowed and the accused is acquitted of the charges framed against him. Bail bonds if any discharged. Pending applications, if any, also disposed of.

19th September, 2016 (Sandeep Sharma), manjit

Judge.