Judgment :

N.S.Shekhawat, J.

The petitioners have filed the present revision petition against the impugned judgment dated 03.02.2017 passed by the Court of Additional Sessions Judge, Ludhiana and the impugned judgment and order dated 13.12.2013 passed by the Court of Judicial Magistrate 1st Class, Ludhiana, whereby, the petitioners have been convicted for the offence punishable under Sections 61/1/14 of the Excise Act and sentenced as under:-

It was also ordered that the period of detention already undergone by the convicts shall be set off against the term of imprisonment on the convicts.

2. As per the case of the prosecution, on 01.07.2010, the police party received a secret information that two persons used to bring Whisky at cheaper prices and sell the same at Ludhiana at higher prices and they were traveling in a Maruti car bearing registration No. PB-10-P-6688 and if a picket was set up, they could be caught red handed and huge quantity of liquor could be recovered from them. On finding the information believable, the formal FIR was registered in the present case. A Naka was set up and a car bearing registration No. PB-10-P-6688 driven by a Hindu gentleman came and one person was driving the car and the other was sitting on the front seat. Both of them were apprehended at the spot on suspicion. On inquiry, they disclosed their names as Ashok Kumar and Bunty, both the petitioner and during search of the car, 90 bottles of English liqour make Hawaldar, 72 bottles of Everyday Gold and 48 bottles of English liqour Silver Peg 750 ml each were recovered. A nip of 180 ml was drawn from each of the bottles as sample and the remaining bottles were sealed by the I.O. and the case property was taken into possession by the police. After usual legal formalities, the investigation was completed and the challan was presented against the petitioners in the Court.

3. After the presentation of the challan, both the petitioners were charge sheeted for the offence punishable under Section 61 of the Excise Act and the charges were explained to them. However, both the accused pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution has examined the recovery witness HC Amrik Singh as PW1, HC Gurjit Singh as PW2, ASI Sheesh Pal as PW3 and the Investigating Officer of the case ASI Gian Singh as PW4 and, thereafter, the evidence of the prosecution was closed.

6. Statements of the accused under Section 313 Cr.P.C. were recorded, in which, the incriminating prosecution evidence was put to the accused, to which, they made a denial of all the allegations and pleaded innocence and false implication but preferred not to lead any defence evidence.

7. After hearing learned counsel for the parties, both the Courts had convicted the petitioners. Feeling aggrieved by both the impugned judgments, the petitioners have filed the present revision petition before this Court.

8. Learned senior counsel appearing on behalf of the petitioners contended that the prosecution had wrongly alleged the recovery of 210 bottles whereas when the case property was produced in the Court, only 116 bottles were produced, seals of 30/40 bottles were broken and more than half of the bottles were less than 250 ml. Thus, it stood established that the case property was tampered. Even, the police had admitted that the case property was not intact, the seals were broken and the bottles were missing. Thus, the recovery was apparently doubtful and planted and prosecution has not been able to establish the offence beyond the shadow of reasonable doubt. Learned senior counsel further submitted that the alleged recovery was effected from the car and the prosecution had failed to connect the petitioners with the alleged recovered Mar