The court emphasized the importance of considering the quantum of sentence imposed and the need to prove possession beyond reasonable doubt.

Vivek Singh Thakur, J.

1. Present appeal has been preferred by the State against reduction of sentence passed by learned Sessions Judge (Forest), Shimla vide judgment dated 7.1.2009 passed in Cr. Appeal No. 2-S/10 of 2008/05 modifying the sentence imposed, upon the respondents, by learned Judicial Magistrate 1st Class, Theog, District Shimla vide judgment dated 11.8.2005/12.8.2005 in Case No. 45/3 of 2004 titled State of H.P. vs. Naresh Sharma, in Case FIR No. 93 of 2003 dated 18.10.2003 registered under Section 61(1)(a) of Punjab Excise Act as applicable to the State of H.P. (hereinafter referred to as the Act) in P.S. Kotkhai, District Shimla.

2. I have heard learned Deputy Advocate General as well as learned counsel for the respondents and have also gone through the record.

3. Prosecution case, in brief, is that during naka laid down on 18.10.2003 headed by PW5 HC Parkash Chand, at Huli at about 10.30 AM, a vehicle bearing No. HP-63-0406 coming from Dhalli side did not stop despite the signal of the police, but was stopped at some distance, upon chasing by the police party. Whereafter on search, respondents were found transporting 12 boxes containing liquor of Brand, “Sirmaur No. 1” in the vehicle and each box was having 12 pouches of 750 Ml each. The liquor and the vehicle in question were taken in possession on the spot. Before seizing 12 boxes, 12 pouches (one pouch from each box) were taken out as sample and sample pouches as well as remaining pouches were seized vide memo Ext.PW5/A. Documents of vehicle and driving licence of driver were also taken in possession vide memos Ext.PW5/C and Ext.PW5/E and vehicle along with documents and key was handed over on supurdari to the owner of the vehicle vide memo Ext.PW5/F. After taking possession of recovered liquor, ruka Ext.PW5/B was sent to the police station by PW5 Parkash Chand on the basis of which FIR Ext.PW3/B was recorded by PW3 Kewal Ram. During investigation statements of witnesses were recorded, case property was deposited in malkhana by handing over the same to PW3 Kewal Ram, and spot map Ext.PW5/G was prepared. Sample pouches were sent for chemical analysis to CTL Kandaghat through PW2 Jawahar vide RC No. 90/2003 and after receiving the report whereof Ext.PW5/D, the challan was presented in Court. On conclusion of trial, respondents were convicted under Section 61(1) (a) of the Act and were sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 1000/- each and in case of default of payment of fine, to further undergo simple imprisonment for a period of one month.

4. In appeal preferred by the respondents, learned Sessions Judge vide impugned judgment has reduced the sentence to simple imprisonment till rising of the Court and to pay fine of Rs. 3000/- each. Respondents have not assailed their conviction maintained by learned Sessions Judge, whereas State has preferred present appeal against reduction of sentence from six months imprisonment to till rising of Court.

5. In the present appeal, only quantum of imprisonment is to be determined by this Court, as so far as the imprisonment of fine is concerned, that has already been enhanced by learned Sessions Judge and has not been questioned by the respondents, rather, the same stands deposited by the respondents and they have also served the sentence imposed by learned Sessions Judge i.e. imprisonment till rising of the Court.

6. It is undisputed fact that only 12 pouches of the liquor were sent for chemical examination to CTL Kandaghat. Learned counsel for the respondents submits that in view of settled position of law, respondents at the most can be said to have been found in possession of 12 pouches only. In support of her contention, she has relied upon Dharam Pal and Another vs. State of H.P. 2009 (2) Shimla Law Cases 208, State of H.P. vs. Ramesh Chand, Latest HLJ 2007 (HP) 1017, Joginder Singh vs. State of H.P. Latest HLJ 2017 (HP) 118 and Mahajan vs. State of H.P. 2003 Cr. L.J. 1346