The prosecution must prove the recovery of illicit items beyond reasonable doubt, and lack of independent witnesses can cast doubt on the evidence.

Sandeep Sharma, J.

By way of present Criminal revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, petitioner has challenged the judgment dated 12.5.2009, passed by learned Additional Sessions Judge Fast Track Court, Shimla in Criminal Appeal No.2-S/10 of 2007, whereby, he has set aside the judgment dated 13.10.2006, passed by learned Chief Judicial Magistrate, Shimla, H.P. in Criminal Case No.118/3 of 2005.

2. Briefly stated, the facts of the case are that on 11.7.2005, at about 10:45 PM, while a police party headed by ASI Harnam Singh (PW-3) were present at Lower Bazar, Shimla, the present petitioner (in short “accused”) carrying a bag on his shoulder was seen coming from Subzi Mandi side towards Lower Bazar. On seeing the police party, the accused tried to run away and police got suspicious, however, accused was apprehended and after checking, he was found to be carrying 12 sealed bottles of country liquor marka “Suroor” in his bag. Each bottle was found to be containing 750ml country liquor. Since accused failed to produce any licence or permit for keeping 12 bottles of country liquor in his possession, police took him in custody as well as 12 bottles of country liquor, which were recovered from his bag. As per prosecution story, two bottles were opened and one sample was separated from each so unsealed bottles. All the three samples were sealed with seal impression “A” and remaining recovered bottles were also sealed with same seal and taken into possession by the police. After apprehending the accused, ruqua was sent to the police station, on the basis of which FIR Ex.PW3/B, was registered against the accused. Site plan EX.PW3/C of the spot was prepared and the statements of the witnesses were also recorded. The sample, which was sent for chemical examination were opined to be country liquor. Police after completion of the investigation, presented the challan in the Court.

3. The court of learned Chief Judicial Magistrate, charged the accused for the commission of the offence punishable under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of HP, to which accused pleaded not guilty and claimed trial.

4. Respondent-State feeling aggrieved with the impugned judgment dated 13.10.2006, passed by learned trial Court filed an appeal under Section 378 of the Code of criminal Procedure against the impugned judgment of acquittal dated 13.10.2006 passed by the learned trial Court. Court of learned Additional Sessions Judge, Fast Track Court, Shimla allowed the appeal preferred by the respondent-State and vide impugned judgment dated 12.5.2009, quashed and set aside the impugned judgment dated 13.10.2006 passed by the learned trial Court and the accused was held guilty for the commission of the offence punishable under Section 61(1)(a) of the Act, and was sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.5000/- and in default to undergo rigorous imprisonment of a period of two months.

5. Mr. T.C. Sharma, learned counsel representing the petitioner vehemently argued that the impugned judgment passed by learned Lower Appellate Court is not sustainable as the same is not based upon correct appreciation of the evidence on record. He forcibly contended that bare perusal of the evidence available on record, nowhere suggests that the present petitioner is the guilty of the offence against which, he was charged. Learned Lower Appellate Court has not appreciated the evidence available on record in its right perspective and has only swayed away by the fact that 12 bottles of liquor were recovered. He strenuously argued that learned Lower Appellate Court has committed grave illegality while not acknowledging the defence taken by the accused in his statement recorded under Section 313 Cr.P.C, that he has been falsely implicated solely for the reason that he had refused to become a witness in some other case at the behest of the police. During