Kuldip Singh, J.
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. I have heard Mr. G.R. Palsra, Advocate, learned Counsel for the petitioners and Mr. Anshul Bansal, learned Additional Advocate General for the State and have also gone through the record. On behalf of the petitioners, Mr. Palsra has submitted that the two courts below have erred in convicting and sentencing the petitioners. Ram Parkash independent witness has not been examined. The prosecution case is that samples were taken only from four bottles, therefore, Chemical Examiner report Ex.PW-5/F at the most is relatable to four bottles and not for rest of the bottles allegedly recovered from the petitioners. There is no evidence that except for four bottles the other bottles were also containing liquor either Country or Indian made Foreign Liquor. The prosecution witnesses are not independent witnesses, the two courts below have erred in relying police witnesses in convicting and sentencing the petitioners. The learned Counsel for the petitioners has prayed for acquittal of the petitioners. On the contrary, the learned Additional Advocate General has submitted that the two courts below have concurrently found petitioners guilty of offence for which they were prosecuted. There is no perversity in the impugned judgment and, therefore, in revision, this Court would not interfere.
4. 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.
5. PW-1 Constable Sukh Dev has stated that nakka party was constituted on the spot. Two boxes were recovered from the dickey and two boxes from inside the van. The boxes were taken to police station in a three-wheeler. It took about two hours to complete the proceedings on the spot and during that period, traffic continued.
6. PW-2 Karam Chand is a witness to the fact that four nips were handed over to him by MHC Iqbal for depositing at C.T.L. Kandaghat which he deposited on 9.8.1994. PW-3 Balwant No. 454 has proved report Ex.PW-3/A. PW-4 Surinder Pal is a witness of sapurdari of van No. HP- 02-3969. PW-4-A Iqbal Mohd. Has stated that in the year 1994, he was posted as MHC, Police Station, Sundernagar. He is a witness of handing over of case property by Sukh Dev Constable to him and has also stated that he handed over the nips to Karam Chand for depositing at C.T.L. Kandaghat. PW-5 ASI Asha Ram has stated that four boxes of liquor were recovered from inside the van. In cross-examination he has stated that at the place of recovery, there is a tea shop and people wait at that place for going to Slapper. He remained on the spot for about two and half hours but no vehicle crossed during that period, similarly during that period no person crossed from that place.
7. Ex.PW-1/A is the memo of recovery of liquor. The perusal of Ex.PW-5/F Chemical Examiner report would show that out of four samples sent for chemical examination, three samples were of country liquor and one sample was of Indian made Foreign liquor. In Ruka Ex.PW-5/C, there is a reference of bottles recovered when the van was searched, but it has not been stated in Ex.PW-5/C that each bottle was containing how much quantity, similar is the position in recovery memo Ex.PW-1/A.
8. It has come in evidence that one Ram Parkash was associated by the police when four boxes of liquor were recovered from the van. The prosecution case is that seal after use was handed over to Ram Parkash. In these circumstances, Ram Parkash was very important witness but the prosecution has not examined Ram Parkash, therefore, adverse inference is to be drawn against the prosecution for not examining Ram Parkash. No worth believing explanation has been given for not examining Ram Parkash except bald statement of the prosecution that Ram Parkash was won over and therefore, he was not examined.
9. PW-1 Sukh Dev has stated that it took about two hours to complete the proceedings on the spot and during that period traffic continued. PW-5 ASI Asha Ram has stated that no vehicle crossed during that period and no person crossed from that place. Thus, PW-1 Sukh Dev and PW-5 ASI Asha Ram have contradicted each other on this point. The perusal of site plan Ex.PW-5/A would show that the van was stopped at point 'B' right on National Highway 21 when the van was proceeding towards Sundernagar. It is not believable that on National Highway 21 where the van was stopped, no other vehicle crossed for about two hours. The judicial notice of the fact can be taken that National Highway 21 is a busy road more particularly at Slapper, but despite that the police did not associate any independent person in the police party when the van was checked, except Ram Parkash, who was also not examined in the Court. The prosecution has not examined independent witness in the case. The prosecution witnesses examined in the case cannot be said to be independent. This creates suspicion in the prosecution story that 48 bottles of liquor were recovered from the van at Nakka as projected by prosecution.
10. According to prosecution, 48 bottles were recovered from the van. The prosecution case is that samples were taken only from four bottles which were ultimately sent for chemical examination and report of the Chemical Examiner Ex.PW-5/F was obtained. In Mahajan v. State of Himachal Pradesh , 8 bottles of XXX Rum were recovered but samples were taken from three bottles and such samples were found to be of IMFS. On those facts a learned Single Judge of this Court in para 12 has held as follows:
In view of such report, at the most, the prosecution has been able to prove the possession of the accused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS.
There is nothing on record to show that the bottles from which the samples were not taken were in fact containing liquor. In other words, there is no worth believing material on record to show that 44 bottles were containing liquor. Therefore, prosecution case at its best is that four bottles were containing liquor.
11. As per notification dated 29.3.1985 noticed in Mahajan case supra, two bottles each of the capacity of 750 ml. of foreign spirit and alternatively two bottles each of the capacity of 750 ml. of country liquor can be sold in each transaction. The notification dated 29.3.1985 does indicate that in that notification emphasis is on the quantity. No prosecution witness has stated what was the quantity of liquor in four bottles from which samples were taken. Therefore, it cannot be said that the petitioners were found in possession of liquor in excess of the prescribed limit mentioned in the aforesaid notification dated 29.3.1985. The benefit of doubt will go to the petitioners. The two courts below have not considered the prosecution case properly.
12. The learned Additional Advocate General has relied State of Karnataka v. Appa Balu Ingale and Ors. : 1993CriLJ1029 , in support of his contention that ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below specially by reappreciating the evidence in its revisional jurisdiction. In Krishnan and Anr. v. Krishnaveni and Anr. : 1997CriLJ1519 , the Apex Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. In the present case, there is nothing on record that 44 bottles were in fact containing liquor. The quantity of remaining four bottles of liquor has not been proved. These facts were not considered by the two Courts below. In addition to this, the seal was allegedly handed over to Ram Parkash who was also a witness of recovery but he has not been examined. The prosecution has not examined any independent witness of recovery. The cumulative effect is that prosecution has failed to prove charge against the petitioners. The impugned judgment in these circumstances is not sustainable.
13. No other point was urged.
14. The result of above discussion, the revision is allowed, the judgment dated 23.12.2002 passed by the learned Additional Sessions Judge, Mandi in Criminal Appeal No. 23 of 1998 affirming the judgment dated 8.9.1998 passed by the learned Additional Chief Judicial Magistrate, Sundernagar in Cr. Case No. 620-1/1994 convicting and sentencing the petitioners under Section 61 (1) (iii) of Excise Act, is setaside, the petitioners are acquitted of the charge, fine amount, if any, deposited by them be refunded to them, their bail bonds are discharged. The case property shall stand confiscated to the State.