Vivek Singh Thakur, J.

1. Both these appeals have been preferred by the State against common judgment dated 10.1.2008 passed by learned Sessions Judge, Shimla in Cr. Appeals No. 52-S/10 of 2007 and 34-S/10 of 2007, whereby conviction and sentence imposed upon the respondents vide judgment dated 15/16.6.2007 passed by learned Judicial Magistrate 1st Class, Theog, District Shimla in Case No. 96/3 of 2004 in Case FIR No. 91 of 2004 dated 17.6.2004 registered in police Station Theog under Section 61(1) (a) of the Punjab Excise Act as applicable to the State of H.P. (hereinafter referred to as the Act) has been reversed and respondents have been acquitted.

2. I have heard learned Deputy Advocate General for the State as well as Shri Dalip K. Sharma, learned counsel for the respondents and have also gone through the record.

3. Case of the prosecution, in brief, is that SHO P.S. Theog Raghubir Singh (not examined) along with PW-7 HC Devinder Kumar, PW-1 Kishori Lal and PW-3 Narender Parkash was on patrol duty at Balag-Kuthar link road. At about 1.45 AM, a Mahindra Pick up bearing No. HP-51A-9171 covered with tarpaulin was noticed coming from Neripul side. On signal by SHO to stop,