MANOJ KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The challenge herein in this criminal revision petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C ), is against the judgment dated 22.05.2006, passed by the learned Sessions Judge, Shimla, in Criminal Appeal No. 61-S/10 of 2004, whereby the appeal filed by the petitioners, who shall hereinafter be referred to as convicts No. 1 and 2, respectively, has been dismissed and the conviction and consequent sentence of six months rigorous imprisonment and fine of Rs. 2000/- (Rs. Two Thousand) and in default further simple imprisonment for one month imposed upon each of them by the learned Chief Judicial Magistrate, Shimla, H.P., vide judgment/order dated 07.12. 2004, for the offence under Section 61(1)(a) of the Punjab Excise Act, 1914 (in short the Act ), as applicable to the State of Himachal Pradesh, has been maintained.

(2.) Briefly stated the case of the prosecution was that on 13.01.2002, at about 12.05 PM, a police party headed by ASI Rajinder Singh (PW-2) was on duty at Shogi barrier. In the meantime, vehicle Mahindra Bolero bearing registration No. HP-06-2557 being driven by convict No.1 Manoj Kumar was found coming from Solan side towards Shimla. It was stopped by the police for routine checking. Convict No.2 Jagan Nath was also sitting in the vehicle. On checking the vehicle two cases containing 24 bottles of liquor Grover Viniyards Gaberent; one case of Reviera Red Wine, 12 bottles of 750 ml. each; two bottles of Seagrams 100 Pipers Delux Scotch Whiskey, 750 ml. each; one bottle of Teachers 50 Rare Vintage Malt Scotch Whisky 750 ml; two bottles Famous Grouse Finest Scotch Whisky 750 ml each; half bottle of ISLE of Jura Single Malt Scotch Whisky, two cases containing Legend Leger beer, 47 cans, 500 ml. each; one case of Hack Back strong beer 12 bottles, 650 ml each; one case of Strohs beer, containing 12 bottles, 650 ml each; one polythene packet containing Hack Back super Brew strong beer, 7cans of 500 ml each; one polythene packet containing Hack Back German quality leger beer, 7 cans of 500 ml. each, were found therein without any permit. The convicts failed to account for the recovered contraband, which was taken into possession by the police vide memo Ex.PW-1/A. A rukka was sent to the police station, on the basis of which FIR Ex.PW-8/C was registered. Out of the recovered contraband 27 samples were drawn. The samples and the bulk were separately sealed with seal bearing impression A and the samples were sent for chemical analysis to CTL Kandaghat and reports Ex.PA to Ex.PF were obtained, according to which the samples were of beer, indian made foreign liquor (IMFL) and wine and were containing different percentages of proof alcohol strength.

(3.) On completion of investigation the convicts were sent up to face trial. On being charged, they pleaded not guilty and claimed trial. The prosecution evidence followed, which examined eight witnesses in all. The convicts were examined under Section 313 Cr.P.C, wherein while admitting their presence in the vehicle and that the same was stopped and checked by the police, they set up defence of total denial, innocence and false implication. In answer to question No.5 of the respective statements, they have submitted the following identical explanation:-