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2022 Supreme(HP) 354
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
State Of Himachal Pradesh – Petitioner
Versus
Gian Chand Son Of Shri Mohan Lal – Respondent
Criminal Appeal No. 366 of 2009
Decided On : 10-08-2022
Advocate Appeared:
For the Petitioner:Shri Hemant Vaid, Additional Advocate General
For the Respondent:Ms. Sheetal Vyas, Advocate
Point of Law: It is true that there can be conviction on basis of deposition of official witnesses only irrespective of fact that independent witness(es) did not support prosecution case and declared hostile.
Headnote:
Punjab Excise Act - Section 61(1)(a) - Criminal Procedure Code, 1973 - Section 313 and 161 - Selling liquor - Destroying/destruction of case property - Appeal against acquittal - Police patrolling party headed by PW9 HC received a credible information that respondent was selling liquor in his shop unauthorizedly and on raiding said shop, huge quantity of liquor would be recovered. As there was apprehension of destroying/destruction of case property - It is true that there can be conviction on basis of deposition of official witnesses only irrespective of fact that independent witness(es) did not support prosecution case and declared hostile. However, in such eventuality, veracity of official witnesses is to be judged by evaluating evidence minutely. (Para 11)
Finding of the court: In present case, for glaring discrepancies and contradictions of statements of official witnesses with respect to case property, description of building as well as details of room/shop wherefrom liquor was recovered and also other material on record doubting credence of prosecution case, respondent cannot be convicted on basis of statements of official witnesses including the Investigating Officer as their deposition in cross examination has shaken their credibility and therefore, it cannot be said that State has proved case against respondent beyond reasonable doubt by leading cogent, reliable, credible and trustworthy evidence on record.
Result: Appeal dismissed
JUDGMENT :
State has preferred this appeal against acquittal of respondent in Criminal Case No. 22-1-08/ 48-III-08, arising out of FIR No. 254 of 2007, registered in Police Station Hamirpur under Section 61(1)(a) of Punjab Excise Act as application to State of Himachal Pradesh.
2. Prosecution case is that on 18.6.2007, police patrolling party headed by PW9 HC Surender Kumar received a credible information that respondent was selling liquor in his shop unauthorizedly and on raiding the said shop, huge quantity of liquor would be recovered. As there was apprehension of destroying/destruction of case property, therefore, for registration of FIR, a Ruka Ext.PW9/A was prepared and sent to Police Station Hamirpur, which led to registration of FIR Ext.PW6/B.
3. After associating Vidhi Chand PW11 as an independent witness in the search and seizure process, shop was raided in presence of accused and during search, total 145 bottles, of various Marks of Whisky, Rum, I.M.F.L., Lal Kila, Una No.1 and Punjab Orange, were recovered from shop of respondent. Respondent could not produce any permit in this regard, whereupon all bottles were seized vide memo Ext.PW9/B after keeping one bottle of each kind as sample and these bottles were sealed with seal impression Ext.PW9/D. Impression of said seal was taken on separate piece of cloth.
4. Samples of liquor were deposited in the Malkhana and entered in Malkhana Register vide entry Ext.PW2/A and these samples on 8.7.2007, vide RC No. 93/07, Ext.PW2/B, were sent to Chemical Test Laboratory, Kandaghat through C. Sunil Kumar PW3 and after depositing the same in CTL Kandaghat, he handed over the receipt to MHC. As per result of Chemical Analysis Ext.PW9/G and Ext.PW9/H, received from CTL Kandaghat, samples were affirmed as country liquor with different percentage of proof alcohol in each.
5. In order to prove the case, prosecution has examined 12 witnesses. Thereafter, statement of respondent was recorded under Section 313 Cr.PC. No defence evidence was led by respondent.
6. PW11 Bidhi Chand, an independent witness, did not support the prosecution case by stating that no recovery of liquor took place in his presence and further that samples were neither taken in his presence nor sealed with seal ‘H’. After declaring him as hostile witness, for resiling from earlier statement recorded under Section 161 Cr.PC, he was cross examined, but nothing material could be elucidated in favour of prosecution in his cross examination. PW4 HC Swaroop Kumar in his cross examination has admitted that large number of bottles, produced in Court as case property, were either empty or half filled which indicates that case property was not kept intact by prosecution. Benefit of tampering with case property is to be extended to respondent as in absence of production and proof of case property as sealed on the spot, it would be difficult to place reliance upon recovery thereof.
7. According to PW4 Swaroop Kumar, bottles were kept in gunny bag, whereas PW9 Surinder Kumar stated that case property was kept in gunny bags as well as in boxes with description that two boxes were having 24 bottles and remaining bottles were kept in gunny bags. PW5 Dalel Singh stated that case property was kept in six gunny bags, whereas PW12 Shyam Lakhanpal stated that case property was kept in 3-4 gunny bags. All these witnesses are official witnesses, whose version with respect to case property is different to each other.
8 PW4 HC Swaroop Kumar stated that case property was recovered from a building having two storeys. In his cross examination, he denied that building was five storeyed having four shops with further clarification that those shops are owned by two shopkeepers. Whereas PW9 HC Surinder has stated that there is one storey above the shop and one storey below the shop meaning thereby that building was three storeyed, but thereafter, he again stated that said building might be having five storeys. He stated that there are two shops in the b
