CR.A/50/2003 on 30 December 2010

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.Appeal No.50 of 2003

Decided on: 30th December, 2009

State of H.P

…..Appellant.

VERSUS Chandan Thakur & ors.

…..Respondents.

Coram

The Hon’ble Mr. Justice Deepak Gupta, Judge.

Whether approved for reporting?1No

For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General.

For the Respondents: Ms.Leena Guleria, Advocate, vice Sh.Lalit Sharma, Advocate.

Deepak Gupta,Judge (Oral)

This appeal by the State is directed against the judgement dated 27.7.2002 passed by 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

…2… the Learned Chief Judicial Magistrate, Shimla in Criminal Case No.23/3 of 2000 whereby he has acquitted the accused of having committed offence punishable under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh.

2. The prosecution story, in brief, is that A.S.I. Raj Kumar alongwith Head Constable Shankar Singh and Constables Moji Ram and Nikka Ram were on ‘Nakka’ duty near Jutogh Cantt. A car bearing registration No.HP-49PA-0102 came from Totu side. The police party signaled for the car to stop. Thereafter, the car was checked. One ‘bori’ (sack) was found on the rear seat of the car and three sacks were recovered from the dicky of the car. On checking, it was found that each of the said recovered sacks contained six cartons containing 48 pouches each of country liquour. A total of 1152 pouches were recovered from the car. One Shri.Piare Mohan was associated as

…3… independent witness with the search. The car was being driven by Shri Sunil Dutt. Accused Mohan Sharma was sitting on the front seat of the car and accused Chander Thakur was sitting on the rear seat. The accused persons could not produce any permit authorizing them to carry this liquor. A ‘Rukka’ was sent to the Police Station on the basis of which the FIR was lodged. A sample was sent for chemical examination and the Public Analyst declared the said sample to be liquor. Thereafter, the accused were charged for having committed offences as aforesaid.

3. The independent witness Piare Mohan has turned hostile and not at all supported the prosecution case. According to him, he runs a cloth shop at Jutogh Cantt. On 8.5.1999 at about 12 mid night, he was taken to police post by the police where he was made to sign certain documents. According to him, in his presence, no liquour was recovered. On being cross-examined,

…4… he admitted that one of the accused Chander Thakur is known to him from childhood. He stated that he signed the recovery memo at the asking of the police.

4. The prosecution witnesses have no doubt supported the prosecution version but there are some inherent contradictions in their statements. As per the police case, one sack had been kept on the rear seat of the car and three sacks were in the dicky of the car. PW/1 Nikka Ram, Constable talks about only one sack being recovered from the front seat of the car. He is silent with regard to the remaining three sacks. His version is contradictory to that of Shankar Singh PW/2 who states that one sack was recovered from the front seat and three sacks were recovered from the dicky of the car. The statement of these two witnesses are contradictory to the prosecution version as well as to the statement of the

…5… Investigating Officer that one sack was kept on the rear seat and three in the dicky of the car.

5. According to the prosecution, it took about 3 to 4 hours to complete the investigation and the entire proceedings for 3 to 4 hours were conducted at the spot under a streetlight. But in the site map, there is no mention of any such streetlight. The prosecution version that Piare Mohan was just a chance witness also seems extremely doubtful because in the midnight, nobody would have come for an evening walk as has been pleaded by the prosecution.

6. For all the aforesaid reasons, I find no merit in the appeal which is accordingly rejected. No order as to costs.

30th December, 2009

( Deepak Gupta )

(m) Judge.