KAPIL DEV Vs. STATE OF H.P.

JUDGEMENT

(1.) The present revision is directed against the judgment dtd. 1/8/2013, passed by learned Sessions Judge, Sirmour District at Nahan (learned Appellate Court), vide which the judgment and order dtd. 27/8/2012, passed by learned Chief Judicial Magistrate, Sirmour District at Nahan (learned Trial Court) were upheld. (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 revision are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Sec. 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.). It was asserted that HC Subhash Chand (PW6), Constable Mukesh Kumar (PW7), Constable Kailash Panwar and Constable Sunil Kumar (PW1) were present at Do-Sarka on 15/9/2009 at 1:45 AM. A vehicle bearing registration No. HP-17B-0363 came from Kala Amb. Police stopped the vehicle for checking. The driver revealed his name as Kapil Dev (the accused). The police checked the vehicle and found 135 boxes of country liquor 'Bara Malta', 50 boxes of Santra No. 1 and 90 boxes of Rasila Santra in it. Each box contained 12 bottles of country liquor in it. In this manner, police recovered 3300 bottles of country liquor. The police demanded a permit/licence for keeping and transporting the liquor, but accused, Kapil Dev, could not produce any permit/licence. ASI Subhash Chand (PW6) took three bottles each from a box of Bara Malta, a box of Santra No.1 and a box of Rasila Santra for chemical analysis. He sealed the bottles and opened boxes with the seal 'H'. He obtained seal impression (Ex.PW6/B) on a separate piece of cloth and handed over the seal to Mukesh Kumar (PW7) after its use. He seized the cardboard boxes, documents, and the vehicle vide seizure memo (Ex.PW2/A). He prepared a rukka (Ex.PW1/B) and sent it to the Police Station through Constable Sushil Kumar (PW1) for registration of FIR. FIR (Ex.PW1/A) was registered in the police station. ASI Subhash Chand (PW6) conducted the investigation. He prepared the site plan (Ex.PW6/A) and recorded the statements of witnesses as per their version. He deposited the case property with MHC Kunwar Singh (PW4), who deposited it in Malkhana and handed over the samples to HHC Ram Kumar (PW5) with the direction to carry them to CTL Kandaghat vide RC No. 211/9. Ram Kumar (PW5) deposited all the samples in CTL, Kandaghat and handed over the receipt to MHC on his return. The results of analysis (Ex. PX to Ex. PZ) were issued stating that the samples of Bara Malta contained 49.1%, the samples of Santra No.1 contained 49.6%, and the samples of Rasila Santra contained 49.6% proof alcohol each. Statements of prosecution witnesses were recorded as per their version and 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 Sec. 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.), to which the accused pleaded not guilty and claimed to be tried.