The prosecution's failure to produce key evidence, including case property and corroborating witness testimonies, justified the appellate court's acquittal of the accused.

JUDGMENT : 

RAKESH KAINTHLA, J.

1. The present appeal is directed against the judgment dated 15.06.2012, passed by learned Additional Sessions Judge, Sirmaur District at Nahan (HP) (learned Appellate Court), vide which the judgment of conviction dated 24.05.2010 and order of sentence dated 26.05.2010, passed by learned Judicial Magistrate, First Class, Court No. 1, Paonta Sahib, District Sirmour (HP), were set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 61(1) (a) of the Punjab Excise Act, 1914, as applicable to the State of HP. It was asserted that HC Yash Pal (PW8), HHC Karun Kumar (PW2) and Constable Rambhaj (not examined) were on patrolling duty on 17.02.2007. They received secret information at about 05.00 PM, that the accused, Balbir Singh, was selling illicit liquor from his tea shop, and in case of search huge quantity of illicit liquor could be recovered. The information was credible; hence, it was reduced into writing (Ex.PW8/A) and sent to the Police Station, where FIR (Ex.PW2/A) was registered. Mohan Singh (PW1) and Khatri Ram (not examined) were associated as witnesses, and the police party reached the tea shop of the accused, where the accused was present. The police searched the shop and recovered one plastic container (Ex.P1) containing illicit liquor. The police measured the liquor and found seven bottles of illicit liquor. One nip was taken out as a sample. The plastic container containing the remaining liquor was sealed with seal ‘A’, seal impression (Ex.PW8/B) was taken on a separate piece of cloth, and the seal was handed over to Mohan Singh (PW1) after use. The liquor was seized vide memo (Ex.PW1/A). HC Yash Pal (PW8) conducted the investigation. He prepared the site plan (Ex.PW8/C) and recorded the statements of prosecution witnesses as per their version. The case property was deposited with Jamal Khan (PW6), who sent it to malkhana on 14.03.2007 vide RC No. 4/07 through Constable Inder Singh (PW4). Constable Inder Singh (PW4) deposited the case property with ASI Raghubir Singh (PW3), who deposited it in the malkhana and made an entry in the malkhana register. He sent the sample to CTL Kandaghat, vide RC No. 1/07, through Constable Vijay Pal (PW7), who deposited the sample in CTL Kandaghat and handed over the receipt to MHC on his return. The result of the analysis (Ex.PW8/E) was issued, in which it was shown that the sample was of illicit liquor which contained 42.9% proof alcohol. The statements of remaining prosecution witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of an offence punishable under Section 61(1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined eight witnesses to prove its case. Mohan Singh (PW1) did not support the prosecution's case. HHC Karun Kumar (PW2) carried the rukka to the police station. ASI Raghubir Singh (PW3) was working as In charge of the malkhana, where the case property was deposited. Constable Jamal Khan (PW6) was working as MC in PP Rajban, with whom the case property was initially deposited. Constable Inder Singh (PW4) carried the case property from Police Post Rajban to Police Station Paonta Sahib. HC Gopal Singh (PW5) signed the FIR. Constable Vijay Pal (PW7) carried the sample to CTL Kandaghat. HC Yash Pal (PW8) conducted the investigation.

5. Accused in his statement under Section 313 of Cr.P.C., denied the prosecuti