DHARAM PAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE petitioners were accused in Criminal Case No. 620 -1/1994 and were convicted and sentenced by learned Additional Chief Judicial Magistrate, Sundernagar on 8.9.1998 for having committed offence punishable under Section 61 (1) (iii) of Punjab Excise Act as applicable to the State of Himachal Pradesh (for short ˜Act) and were directed to undergo simple imprisonment for six months and to pay fine of Rs.1000/ - each and in default to undergo simple imprisonment for one month. The learned Additional Sessions Judge, Mandi in Criminal Appeal No. 23 of 1998 on 23.12.2002 affirmed the conviction and sentence of the petitioners.

(2.) THE prosecution case, in brief, is that on 23.7.1994 at 8.40 P.M. PW -5 Asha Ram ASI was patrolling at Slapper along with PW -1 Constable Sukh Dev, Home Guard Vikrant and Home Guard Nihal Singh. He received secret information that Maruti Van No. HP -02 -3969 was carrying liquor to lower Slapper. PW -5 Asha Ram constituted a party in which one Ram Parkash was also associated. The Maruti Van HP -02 -3969 was stopped at about 9.30 P.M., the driver of the vehicle disclosed his name Dharam Pal and other occupant of the van was Daber Singh. The van was searched in presence of Ram Parkash and PW -1 Sukh Dev and during search four boxes containing illicit liquor were found inside the vehicle. The two boxes were containing liquor brand ˜Patiala Rose with 12 bottles in each box. The third box was containing 12 bottles of liquor of brand ˜Una No.1. The fourth box was containing 12 bottles of English liquor ˜Binnies. One bottle was removed from each box and after breaking its seal, one nip was taken from each bottle as sample for analysis. Thereafter, bottles and the nips were sealed with seal impression ˜A. The sample seal was also obtained separately. The seal after use was handed over to Ram Parkash, recovery memo was prepared on the spot. The petitioners could not produce the permit to transport liquor in the van. Ruka Ex.PW -5/C was prepared on the spot and on that basis, FIR Ex.PW -5/E was registered at Police Station, Sundernagar, site plan Ex.PW -5/A was prepared. The case property was deposited at Police Malkhana, Sundernagar. The nips were sent for chemical examination to Chemical Laboratory, Kandaghat and report Ex.PW -5/F of Chemical Examiner was obtained. The contents of nips were found to be that of country liquor and Indian made Foreign Liquor. On completion of investigation, challan was presented in the Court against the petitioners for commission of offence punishable under Sections 61 (1) (iii) of the Punjab Excise Act. The petitioners were charged accordingly, they denied the charge. The prosecution has examined six witnesses and placed on record some documents. The statements of petitioners were recorded under Section 313 Cr.P.C., they denied the prosecution case. The petitioners were convicted, the learned Additional Sessions Judge affirmed the conviction and sentence of the petitioners, as noticed above, hence this revision.

(3.) IN Ruka Ex.PW -5/C, it has been stated that ASI Asha Ram along with Constable Sukh Dev, Home Guard Vikrant Sain and Home Guard Nihal Singh was patrolling at Slapper at about 8.40 P.M. on 23.7.1994. He received secret information that Maruti Van No.HP -02 -3969 is carrying liquor. On this, PW -5 with the help of policeman and Home Guards and witness Ram Parkash put a nakka on the road, at about 9.30 P.M. van HP -02 -3969 came, it was signaled to stop. There were two persons inside the van including the driver. On inquiry, the driver disclosed his name Dharam Pal and other person Daber Singh. The van was searched and four boxes of liquor were recovered from the van. The two boxes were containing 24 bottles of ˜Patiala Rose, one box of country liquor ˜Una No.1 and one box was containing 12 bottles of Indian made Foreign liquor ˜Binnies. A sample was taken from one bottle from each of the boxes. The remaining bottles of liquor and the samples were sealed with seal impression ˜A, the samples were also sealed and the seal was handed over to Ram Parkash. The liquor, nips and the sealed bottles were taken into possession vide recovery memo.