STATE OF HIMACHAL PRADESH Vs. SUSHEEL KUMAR

JUDGEMENT

(1.) The present appeal has been preferred by the appellant/State (hereinafter referred to as "the appellant") laying challenge to judgment, dated 15.02.2008, passed by learned Sessions Judge, Shimla, District Shimla, H.P., in Sessions Trial No. 114-3 of 2006, whereby the judgment of conviction, as passed by learned Judicial Magistrate 1st Class, Theog, District Shimla, H.P., in Case No. 114-3 of 2006, against the respondent/accused (hereinafter referred to as "the accused"), was set aside.

(2.) Succinctly, the facts giving rise to the present appeal, as per the prosecution, are that on 29.03.2006 when police personnel were on patrol duty around 04:30 p.m., near Raighat-Shadyana road, in vehicle (Tata Mobile) bearing registration No. HP-07-5328, a white coloured Maruti Car having registration No. HP-01-0972 came from Shadyana side. After seeing the police party, the driver of the vehicle started reversing the vehicle in a high speed. The vehicle was chased and after about ten kilometers the driver of the vehicle, stopped the vehicle and he started throwing liquor boxes in a nalla. Police found three carton boxes of liquor, out of which two carton boxes were of English liquor 'Bagpiper' and one box was of English liquor 'McDowell'. Police also counted the liquor thrown in the nalla, which came to be 48 bottles of 'Bagpiper', 26 bottles of 'McDowell' and 12 bottles of country made liquor 'Saroor'. 18 bottles of English liquor 'McDowell' and 5 bottles of country made liquor were found broken. In total 120 bottles were recovered from the respondent/accused (hereinafter referred to as "the accused"). Police took as samples one bottle each from McDowell, Bagpiper and Country made liquor Saroor and sealed the same with seal having impression 'S'. Specimen seal was taken on a separate piece of cloth and the statement of the witnesses were also recorded. Remains of broken bottles were also taken into possession and rukka was sent to Police Station, Theog, whereupon FIR against the accused was registered. Site plan was prepared and vehicle of the accused was taken into possession. The accused was arrested and later on released on bail. Report of the Chemical Analyst revealed that sample of IMFL (McDowell) contains alcoholic strength 75.1%, country made liquor contains alcoholic strength 47.9% and IMFL (Bagpiper) contains 74.4% alcoholic strength. After thoroughly investigating the matter, the police found involvement of the accused in the commission of the offence under Section 61(1)(a) of the Punjab Excise Act, 1914, thus challan was prepared and presented in the Court.

(3.) The prosecution, in order to prove its case, examined as many as five witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence, however, he did not examine any defence witness.