STATE OF HIMACHAL PRADESH Vs. PARVEEN KUMAR

JUDGEMENT

(1.) Being aggrieved and dissatisfied with judgment dated 29.12.2008 passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, Himachal Pradesh in Excise Case No. 6-III-2008, whereby respondent-accused (hereinafter, 'accused') came to be acquitted of the offences punishable under S. 61(1)(a) of Punjab Excise Act (as applicable to the State of Himachal Pradesh) (hereinafter, 'Act'), appellant-State has approached this Court in the instant proceedings, praying therein for conviction of the accused after setting aside judgment of acquittal recorded by learned Court below.

(2.) In nutshell, case of the prosecution, as emerges from the record is that on 8.6.2007, Police party, after having received secret information that the accused, who runs a Biri and Cigarette shop at Bani, illegally sells liquor, formed raiding party by associating independent witnesses namely Prakasho Devi, Ward Member (PW-2) and Sanjay Kumar, Shopkeeper (PW-3) and conducted search of the house of accused. During search, police allegedly recovered 4 cartons of "Big Boss" whisky, 8 cartons of "Everyday" whisky and 2 cartons of "Red Rose" whisky, total 168 bottles from the house of accused, who failed to produce any permit /license for the same. Police extracted two bottles from two cartons of "Big Boss" whisky, three bottles from three cartons of "Everyday" whisky and two bottles from two cartons of "Red Rose" whisky for chemical analysis and sealed the samples as well as remaining bulk with seal impression, "K" and took the same into possession. Seal impression "K" was taken on piece of cloth, Ext. PX. Site plan was prepared and samples were sent for chemical analysis. Statements of the witnesses including independent witnesses Prakasho Devi and Sanjay Kumar were recorded. Police presented Challan in the competent Court of law against the accused for the commission of offence punishable under S.61(1)(a) of the Act, to which accused pleaded not guilty and claimed trial.

(3.) Prosecution, with a view to prove its case, examined as many as six witnesses, whereas, accused in his statement recorded under S.313 CrPC, denied the case of the prosecution in toto and claimed himself to be innocent. However, accused did not lead any evidence despite opportunity having been afforded for the purpose.