judgment?

Kant (PW-4) were on routine patrol duty. They met Sh. Telu Ram (PW-1), who was on his way to Village Tikkar. All of them proceeded together in the direction of Village Tikkar. On the way, they noticed smoke emanating from the side of “Nallah” (Stream). They proceeded towards the direction from where the smoke was emanating and found that petitioner was operating illicit liquor “Bhatti”. About 150 liters of “Lahan” was found in the drum and six bottles of distilled illicit liquor were found contained in a container. Samples of “Lahan” and illicit liquor were drawn and were sealed. The equipment used for preparation of illicit liquor was taken into possession. “Rukka” was sent to Police Station and on the basis of which, FIR Ext. PW-4/A was registered. The samples were sent for chemical examination to CTL, Kandaghat. Those were confirmed to be of “Lahan” and illicit liquor vide report Ext. PW-6/A. A prima- facie case under Section 61 (1) (c) of Punjab Excise Act, as applicable to the State of Himachal Pradesh (for short “the Act”), was found against the petitioner.

3. Prosecution examined 7 witnesses and also proved the documents prepared during investigation. Petitioner was examined under Section 313 Cr.P.C. He did not lead any defence evidence.

4. Learned trial Court convicted the petitioner for commission of offence under Section 61 (1) (c) of the Act vide judgment dated 25.5.2011 and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 5000/-. In default of payment of fine, the petitioner was further ordered to undergo simple imprisonment for one month vide sentence order dated 30.5.2011.

5. Petitioner has assailed his conviction and sentence before learned Sessions Judge, Sirmour at Nahan by filing appeal under Section 374 of the Code of Criminal Procedure (for short “the Code”). Learned Appellate Court affirmed the conviction and sentence of petitioner vide judgment dated

29.11.2012.

6. Petitioner has laid challenge to the judgment passed by learned Appellate Court affirming the judgment and sentence passed/imposed by learned trial Court on the grounds that both the courts below have committed patent illegality in convicting the petitioner whereas, prosecution evidence was clearly deficient and was full of doubts.

7. I have heard the learned counsel for the parties and have also gone through the record carefully.

8. Prosecution examined PW-1, Telu Ram, PW-4, Constable Kailash Kant and PW-5, HC Bahadur Singh as spot witnesses. PW-1, Telu Ram did not support the prosecution case. He was cross-examined by learned Prosecutor. This witness admitted having signed the document Ext. PW-2/A i.e. the recovery memo. The other two spot witnesses supported the prosecution case. Placing reliance upon their testimonies, both the courts below have convicted the petitioner, as noticed above.

9. Learned counsel for the petitioner has contended that the entire case of prosecution was falsified from the statement of PW-5 made by him during his cross-examination, whereby he admitted that the drum Ext. PW-3 was in broken condition and nothing could be stored in such drum. He laid stress on the arguments that as per prosecution case, 150 liters of “Lahan” was found in drum Ext. P-3, which was not possible, keeping in view the condition of the drum. It was further submitted on behalf of the petitioner that both the courts below have erred by ignoring such a material piece of evidence.

10. The argument so raised needs rejection for the reasons firstly that the drum Ext. P-3 was taken into possession by police in January, 2007. Statement of PW-5 was recorded in January, 2011, after four years. The possibility of damage caused to the drum Ext. P-3 during such a long gap could not be ruled out, as the case properties remain in “Malkhana”. It is not necessary that the case properties are kept with due care and secondly, rather more importantly, the witness (PW-5) was not cross examined about the condition of the drum at