Acquittal in excess liquor possession case set aside as perverse; no need for independent witnesses in patrolling chance recovery or independent seal custody; reliable police evidence suffices; conviction limited to excess as illicit nature unproved.

Judgment :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 3.8.2011, passed by learned Judicial Magistrate First Class, Court No. 2, Nurpur, District Kangra, H.P. (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.). (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 for the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.). It was asserted that ASI Hoshiar Singh (PW6), HC Vikram Singh (PW4), Constable Karan Singh (PW1) and HHG Maan Singh were present on patrolling duty at Khehar on 29.3.2009. The accused was found coming towards the police party at about 12.30 PM carrying a container (Ex.P1) in his right hand. He returned after seeing the police and started walking briskly. The police became suspicious that the accused might be possessing illicit liquor and called him to stop, but the accused did not stop. The police apprehended the accused. A brick kiln located in the vicinity was closed, and there was no abadi in the vicinity. Hence, the police could not associate any independent witness. The police inquired about the name of the accused, and he identified himself as Totu. The police checked the container and found that it contained illicit liquor. The police took out a sample of 180 ml for chemical analysis and sealed the sample and container with seal ‘H’. Seal impression (Ex.PX) was taken on a separate piece of cloth, and the seal was handed over to the witness, Vikram Singh after use. Liquor was seized vide memo (Ex.PW1/A). Rukka (Ex.PW6/A) was prepared and sent to the Police Station, where FIR (Ex.PW6/B) was registered. ASI Hoshiar Singh (PW6) investigated the matter. He prepared the site plan (Ex.PW6/C) and recorded the statements of witnesses as per their version. He handed over the case property to HC Bir Singh (PW3), who deposited it in Malkhana. He handed over the sample to Constable Ranjeet Singh (PW5) on 21.4.2009 with a direction to carry it to CTL, Kandaghat vide RC No. 94/2009. HHC Ranjeet Singh deposited the sample at CTL Kandaghat in a safe condition and handed over the receipt to MHC on his return. The result of the analysis (Ex.PW6/D) was issued, in which it was mentioned that the sample of illicit liquor contained 26.4% proof alcohol. After completion of the investigation, the challan was prepared and presented before the learned Trial Court.

3. Learned Trial Court charged the accused with the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.), to which he pleaded not guilty and claimed to be tried.

4. Prosecution examined six witnesses to prove its case. Constable Karam Singh (PW1) and LHC Vikram Singh (PW4) are the witnesses to the recovery. HHC Rajinder Singh (PW2) p