The prosecution must prove the guilt of the accused conclusively and beyond reasonable doubt.

Chander Bhusan Barowalia, J.

The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Section 61-1-14 of the Punjab Excise Act (as applicable to the State of Himachal Pradesh), passed by the learned Judicial Magistrate 1st Class, Kandaghat, District Solan, dated 1.12.2007, in Criminal Case No.44/3 of 2005.

2. Briefly stating the facts giving rise to the present appeal are that on 26.9.2005, SI/SHO alongwith other Police officials was on patrolling duty and was going towards Sadhupul from Kandaghat at about 11:20 pm, one person came from the side of Sartaj tea Stall, namely, Rajinder Kumar, who is owner of the above tea stall, carrying one carton/box on his right shoulder. After seeing the police party, he threw carton on side of the road and ran towards Sadhupul. No local witness was available as it was night time and in opening the carton/box before the police officials and 12 bottles of country made liquor Marked Patiala Orange 750 ml. each were recovered from which three bottles were separated for chemical test and sealed with seal impression ‘T’. Remaining 09 bottles were also taken into possession by the police and memo was prepared. Seal sample was procured on separate cloth and was handed over to witness Jeet Ram. Chemical test report from CTL was obtained and challan was presented after the completion of investigation.

3. Charge was framed against the accused, to which he pleaded not guilty and claimed trial.

4. The prosecution, in order to prove its case, has examined as many as 07 witnesses. Statement of accused was recorded under Section 313 Cr.P.C, wherein accused denied the prosecution case and claimed innocence. No defence evidence was led by the accused.

5. I have heard learned Additional Advocate General for the appellant/State and learned defence counsel for the respondent/accused.

6. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.

7. PW-1, HC Jeet Ram, has deposed that he was present with the raiding party, Rajinder Kumar came with one carton on his right shoulder towards his shop Sartaj tea stall and threw the box after seeing the police and fled away from the spot. Box was checked and 12 bottles of country liquor were recovered, liquor was taken into possession vide memo Ex.PW1/A. In cross-examination, he admitted that he recognizes the accused and denied that no police official followed the accused at that time.

8. PW-2 HHC Kishore Kumar, has deposited the sample of liquor sealed with impression ‘T’ at Chemical Test Laboratory.

9. PW-3 HC Taranjeet Singh, received the case property i.e. 09 bottles of country liquor bottles sealed with impression ‘T’, sample was sent to CTL, Kandaghat and returning receipt was deposited with him.

10. PW-4 C. Jitender Kumar, deposed that no private witness was available when liquor was recovered. He has also signed on memo Ex.PW1/A and recognized bottles Ex.P-1 to Ex.P-9. In cross-examination, he deposed that they were having torch at that time of patrolling.

11. PW-5, proved on record rojnamcha Ex.PW5/A.

12. PW-6 SI Avtar Chand, has conducted the investigation and stated that case property was sealed with impression ‘T’, whose sample is Ex.PW6/A, which was handed over to HC Jeet Ram. Rukka Ex.PW6/B was written on which, FIR Ex.PW6/C, was registered, which is signed by ASI Sohan Singh. He prepared spot map Ex.PW6/D and recorded the statement of witnesses. In cross-examination, he stated that they saw the accused from the distance of 15-20 feet and denied that false case has been made out against the accused. He has further denied that there are plenty of shops near the tea stall and admitted that residential house of Rajinder Kumar is below tea stall.

13. PW-7 C. Kamlesh Kumar, was present with other police officials, supported the version of