IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 351 of 2009 Judgment reserved on : 29.11.2019. .

Date of Decision : March 23 , 2020 State of Himachal Pradesh ...A ppellant.

Versus o Ravi Kumar ...Respondent.

Coram: r The Hon’ble Mr. Justice Anoop Chuitkara, Judge.

Whether approved for reporting?1 Yes.

For the appellant : Mr. Ashwani K. Sharma, Additional Advocate General for the appellant-State.

For the respondent : Mr. Bhuvnesh Sharma, Advocate, for the respondent/accused.

Anoop Chitkara, Judge.

The misadventure of a boy aged just 19 years, to arbitrage the lesser cost price of liquor at Chandigarh, and its retail price in Himachal Pradesh, got scuttled, costing dearly on being nabbed while smuggling 864 bottles of licit Country and English liquor, leading to his prosecution, and on its failure the present appeal by the State of Himachal Pradesh seeking his conviction for the violation of the provisions of the Excise Act as well as Motor Vehicles Act.

2. The gist of the facts, apposite to decide the present case, traces its origin to daily diary report number 6, dated Oct 7, 2007, reported at 11.00 pm (Ext. PW-7/A) whereby the police party headed by SI Hans Raj (PW-6), Police Station SV & ACB,

1 Whether reporters of Local Papers may be allowed to see the judgment?

Hamirpur, and comprising of SI Amar Singh (PW-3) and other police ofÏcials proceeded in their ofÏcial vehicle to erect a check post, and also to patrol. When the police ofÏcials were present at place Gashota Road at 3.30 am (night), they spo.tted one mini truck coming towards them on which they signaled it to stop. There was none except the driver in the said truck, who, on being asked, revealed his name as Ravi Kumar, respondent herein. Police OfÏcials inquired about the goods loaded in the vehicle on which he replied that these are only empty plasti c crates. Still, to ascertain the veracity of the statement of the accused, the porlice ofÏcials looked in the body of the truck with torchlight and noticed cartons beneath the empty plastic crates. Police ofÏcials asked the driver to show the poermit to transport liquor, but he could not produce any permit. Since it was mCidnight and it was impossible to search, as such, the police ofÏcials made the driver take his vehicle towards the Mini Secretariat, Hamirpur, and they got it parked there.

3. gIn the morning i.e., Oct 8, 2007, the police ofÏcials associated two independent iwitnesses, namely Ajay Kumar (PW-1) and Kalyan Chand (PW-9), out of whom they had hired Ajay Kumar (PW-1) to unload the vehicle.

4. On search of the body of the truck, the police recovered 60 cartons of the country made liquor of mark “Hulchul Sofia” and twelve cartons of IMFL bearing the mark “OfÏcer’s Choice.” Each box contained 12 bottles in it; thus, the police recovered a total of 864 bottles of liquor. On all the cartons, mark “for sale only in Chandigarh,” was printed. After conducting the search and seizure, the police prepared the search and seizure memo (Ext. PW-3/A). After that, the Investigating OfÏcer SI Hans Raj (PW- 6) made ruka (Ext. PW-6/B) and sent the same for the registration of FIR in Police Station SV & ACB, Hamirpur. Constable Deep Kumar (not examined) carried the ruka to the police station which led to the registration of FIR No. 9 of 2007, dated 8.10.2007 (Ext.PW-4/A), for the commission of an offense punishable under Sec.tion 61 of the Punjab Excise Act as applicable to the State of HP, in the file of Police Station SV & ACB, Hamirpur, District Hamirpur, Himachal Pradesh. After that, the police ofÏcials returned to the police station, and entry to that effect is Ext. PW-7/B. The police handed over the case property to ASI Daljeet Singh (PW-2), w ho was holding the charge of MHC of the police station. r

5. MHC Daleep Kumar (PW-8) sent the case property for chemical analysis to CTL Kandaghat. Vide report (Ext. PWo-6/G) all the sample bottles contained alcohol and thus fell in the category of liqCuor, sale of which was contr