The central legal point established in the judgment is the requirement for the prosecution to prove conscious possession of liquor beyond the prescribed limit, and the importance of reliable evidence in establishing guilt in criminal cases.

Sandeep Sharma, J.

The present criminal revision petition filed under Section 397 Cr.PC read with Sections 401 & 482 Cr.PC, is directed against the order dated 31.12.2008, passed by the learned Additional Sessions Judge, Shimla, HP, in case No. 40-S/10 of 2007, titled “State of Himachal Pradesh v. Naresh Kumar”, affirming the judgment of acquittal dated 21.7.2007, passed by the learned Judicial Magistrate, Ist Class, Theog, District, Shimla, HP, in case No. 107-3 of 2006 titled “State of Himachal Pradesh v. Naresh Kumar,” whereby accused-respondent herein, has been acquitted of the charges for the 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 4.3.2006, HC Balbir Singh, PW-7, Constable Mahinder Singh PW-1, and other police officials, had laid Naka at Gumma-Baghi bifurcation road and at around 12:45am (midnight), Maruti Car bearing No. HP- 09A-1283 came from Chhaila to Kotkhai side. On checking of the aforesaid car, four boxes of English liquor mark ‘Bagpiper’ containing twelve bottles in each box were recovered. As per prosecution story, out of the bulk, one bottle from each box was withdrawn as sample and thereafter sealed with seal having impression ’K’ and the bulk and the samples were taken into possession vide memo Ext.PW.1/A. The sample of the seal was also taken on white cloth Ext.PW-1/E. Thereafter, Ruka Ext.PW-7/B, was sent to the Police Station, on the basis of the same, FIR Ext.PW-5/A was lodged/registered against the respondent accused. Spot map Ext.PW-7/C was prepared during the course of the investigation and vehicle was taken into possession, vide memo Ext.PW-2/A, alongwith its documents. Vide Memo Ext.PW- 6/A, documents were handed over to Balibir Singh on sapurdari. The samples were sent to CTL, Kandaghat for obtaining the opinion of Chemical Examiner and the opinion Ext.PZ was obtained. Police also recorded the versions of witnesses under Section 161 Cr.PC. After completion of investigation, challan was put up in the competent court of law recommending the trial of the respondent-accused. The court of learned Judicial Magistrate, Ist Class, Theog, charged the accused under Section 61 (1) (a) of the Act to which the accused pleaded not guilty and claimed trial.

3. In the present case, prosecution with a view to prove its case examined as many as seven witnesses. Statement of accused under Section 313 Cr.PC was also recorded, wherein he stated that he has been falsely implicated. However, he did not lead any evidence in his defence. Learned trial Court after appreciating the material on record vide judgment dated 21.7.2007, acquitted the accused for the offence committed under Section 61 (1) (a) of the Act.

4. Feeling aggrieved and dissatisfied with the judgment of acquittal of learned trial Court, petitioner herein- State, filed an appeal under Section 378 Cr.PC, before the learned Additional Sessions Judge, FTC, Shimla, HP, whereby the same was dismissed being non-maintainable. Hence, the present criminal revision petition.

5. Since the appeal filed by the petitioner-Sate was dismissed being not maintainable before the appellate Court, it would be proper to deal with the question of maintainability at the first instance before adverting to the merits of the impugned order. In para-3 of the order dated 31.12.2008, learned Additional Sessions Judge, has noted that “Learned PP fairly conceded at bar that if a person is carrying/transporting 10 bottles of Indian made Foreign Liquor of 750 ml. each i.e. beyond the permissible limit of two bottles, the said offence is bailable.” In the present case, as per prosecution story, though they had recovered four foxes of Indian Liquor mark Bagpiper containing twelve bottles in each box but admittedly, as per case of the prosecution, out of bulk, one bottle from each box was withdrawn as sample, meaning thereby, only fou