Anoop Chitkara, J
1. The misadventure of a boy aged just 19 years, to arbitrage the lesser cost price of liquor at Chandigarh, and its retail price in Himachal Pradesh, got
scuttled, costing dearly on being nabbed while smuggling 864 bottles of licit Country and English liquor, leading to his prosecution, and on its failure the
present appeal by the State of Himachal Pradesh seeking his conviction for the violation of the provisions of the Excise Act as well as Motor Vehicles
Act.
2. The gist of the facts, apposite to decide the present case, traces its origin to daily diary report number 6, dated Oct 7, 2007, reported at 11.00 pm
(Ext. PW-7/A) whereby the police party headed by SI Hans Raj (PW-6), Police Station SV & ACB, Hamirpur, and comprising of SI Amar Singh
(PW-3) and other police officials proceeded in their official vehicle to erect a check post, and also to patrol. When the police officials were present at
place Gashota Road at 3.30 am (night), they spotted one mini truck coming towards them on which they signaled it to stop. There was none except the
driver in the said truck, who, on being asked, revealed his name as Ravi Kumar, respondent herein. Police Officials inquired about the goods loaded in
the vehicle on which he replied that these are only empty plastic crates. Still, to ascertain the veracity of the statement of the accused, the police
officials looked in the body of the truck with torchlight and noticed cartons beneath the empty plastic crates. Police officials asked the driver to show
the permit to transport liquor, but he could not produce any permit. Since it was midnight and it was impossible to search, as such, the police officials
made the driver take his vehicle towards the Mini Secretariat, Hamirpur, and they got it parked there.
3. In the morning i.e., Oct 8, 2007, the police officials associated two independent witnesses, namely Ajay Kumar (PW-1) and Kalyan Chand (PW-9),
out of whom they had hired Ajay Kumar (PW-1) to unload the vehicle.
4. On search of the body of the truck, the police recovered 60 cartons of the country made liquor of mark “Hulchul Sofia†and twelve cartons of
IMFL bearing the mark “Officer’s Choice.†Each box contained 12 bottles in it; thus, the police recovered a total of 864 bottles of liquor. On
all the cartons, mark “for sale only in Chandigarh,†was printed. After conducting the search and seizure, the police prepared the search and
seizure memo (Ext. PW-3/A). After that, the Investigating Officer SI Hans Raj (PW-6) made ruka (Ext. PW-6/B) and sent the same for the
registration of FIR in Police Station SV & ACB, Hamirpur. Constable Deep Kumar (not examined) carried the ruka to the police station which led to
the registration of FIR No. 9 of 2007, dated 8.10.2007 (Ext.PW-4/A), for the commission of an offense punishable under Section 61 of the Punjab
Excise Act as applicable to the State of HP, in the file of Police Station SV & ACB, Hamirpur, District Hamirpur, Himachal Pradesh. After that, the
police officials returned to the police station, and entry to that effect is Ext. PW-7/B. The police handed over the case property to ASI Daljeet Singh
(PW-2), who was holding the charge of MHC of the police station.
5. MHC Daleep Kumar (PW-8) sent the case property for chemical analysis to CTL Kandaghat. Vide report (Ext. PW-6/G) all the sample bottles
contained alcohol and thus fell in the category of liquor, sale of which was controlled under the Excise Act.
6. After the completion of the investigation, police filed a report under Section 173 (2) CrPC in the Court of Chief Judicial Magistrate, Hamirpur, H.P.,
in which the present respondent was arraigned as accused.
7. Vide order dated June 6, 2008, the Trial Court framed charges against the accused of commission of an offense punishable under Section 61(1)(a)
of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh and Sections 181, 192 and 192-A of the Motor Vehicles Act, 1988.
The accused did not admit his guilt and claimed trial.
8. After the recording of the prosecution evidence, the trial Court put the incriminating circumstances to the accused in compliance with the provisions
of Section 313 of CrPC. The accused did not offer any explanation and has denied all circumstances and claimed innocence. However, the accused
did not lead any evidence in defense.
9. Vide judgment dated May 11, 2009, Chief Judicial Magistrate Hamirpur, District Hamirpur, HP, in Criminal Case No. 35-1-2008 /45-III-08,
dismissed the prosecution case and acquitted the accused, giving him the benefit of the doubt. The learned Trial Court acquitted the accused because
one of the members of the police party HC Daljeet Singh who was examined as PW-2, but he did not support the case of the prosecution by
remaining silent about the search. The further ground of acquittal was contradiction regarding the departure of ruka from the spot and its receipt in the
police station, and thirdly on the ground that the learned Trial Court did not find the statement of SI Amar Singh (PW-3) as credible enough as he is
present on the spot must have remembered about the vehicles that had crossed at that time and details surrounding the recovery. The learned Trial
Court further held that SI Hans Raj (PW-6) was the complainant, and he investigated the case himself. Another valid reason given by the Trial Court
was that prosecution could not prove any violation under the provisions of the Motor Vehicles Act because of Section 130 of the same. Learned Trial
Court held that the prosecution had failed to prove its case beyond reasonable doubt and thus acquitted him of all charges.
10. It is against this judgment of acquittal; the state has come up before this Court by filing the present appeal under section 378 of the Code of
Criminal Procedure, 1973.
11. I have heard Mr. Ashwani K. Sharma, learned Additional Advocate General for the appellant-State and Mr. Bhuvnesh Sharma, learned Counsel,
for the respondent-accused and have waded through the entire record.
ANALYSIS AND REASONING:
12. Analysis of the judgment of acquittal does not lead to any infirmity or perversity and is well reasoned. Apart from it, there are two more significant
aspects which need discussion.
13. As per the case set up by the prosecution SI Hans Raj (PW- 6), after completing the formalities of search and seizure, prepared search memo
Ext. PW-3/A. After that, he made ruka (Ext. PW-6/B) and sent the same to the police station for the registration of the FIR through Constable Deep
Kumar. The prosecution did not examine Const. Deep Kumar as a witness. After receipt of ruka, the concerned police station registered the FIR
(Ext. PW-4/A) and in column No. 3 (b) it explicitly mentions the time of information received at the police station as “6.40 amâ€. There is cutting
overtime, and it appears that 3.00 pm was over-written at 6.40 am.
14. None has initialed the said cuttings. This cutting assumes importance because in the testimony the Investigating Officer SI Hans Raj, who testified
as PW-6 specifically mentioned that the formalities of sampling and counting of bottles were over at 9.30 am the other spot witness SI Amar Singh
(PW-3) had contradicted SI Hans Raj (PW-6) when in his cross-examination he explicitly mentioned that SI Hans Raj had sent ruka at 6.30 am from
the campus of Mini Secretariat. A perusal of ruka (Ext. PW-6/B) also indicates the time 6.30 am. Because the distance between the compound of the
Mini Secretariat and the Police Station is just 7 k.m. by a motorable road, as such, to cover the time from 6.30 am to 3.00 pm it appears that one of the
police officials tampered with the FIR and interpolated the time from 3 pm. To 6.40 am. However, while doing so, they forgot another aspect which
came to light from the cross-examination of the Investigating Officer SI Hans Raj (PW-6), wherein he stated that counting and sampling of bottles
were over by 9.30 am. Once the police had not even counted the bottles and sealed the same by 9.30 am, then there was no question of writing the
ruka at 6.30 am. These contradictions lead to the irrefutable inference that what happened in reality and where it happened was different from what
the police projected. It assumes importance when none of the independent witnesses, namely Ajay Kumar (PW-1) and Kalyan Chand (PW-9), have
supported the case of the prosecution. Given above, the prosecution miserably failed to prove its case.
15. Another aspect of the matter is that prosecution clubbed the offense of Section 181 M.V. Act (driving on a public highway without a valid driving
license); Section 192 M.V. Act (driving on a public highway without having a valid R.C.); and Section 192-A of the M.V. Act (driving on a public
highway without a valid permit) with the primary offense under the Excise Act. These violations had nothing to do with the transport of the licit liquor
in violation of the Punjab Excise Act. All these offenses were “strict liability offensesâ€, and it was highly prejudicial to the accused to face regular
trial on warrant case for “strict liability offensesâ€. There is no doubt that some offenses under the Motor Vehicles Act do not fall under the
category of strict liability, but petty offenses like for what the accused had to face trial as warrant case was certainly falling under the category of
strict liability which generally ends up in paying fine. Be that as it may, the prosecution itself tendered the Registration Certificate of the vehicle in
evidence as Ext. PW-6/D. Regarding the absence of Route Permit and Driving Licence, there is no evidence that the Investigating Officer afforded
any opportunity to the accused to place the same on record. Section 130 of the Motor Vehicles Act mandates that the driver had to produce the
Driving Licence and the Registration Certificate on demand. Still, there is neither an averment nor any evidence that the Investigating Officer
demanded the same from the driver.
16. It shall be appropriate to quote excerpts from the treatise “Text Book of Criminal Lawâ€, Second Edition by Glanville Williams, Cambridge (pg.
142) which reads as follows:
“The mens rea doctrine is equally excluded in cases of strict liability, even though a question of pure fact is involved. Here it is sufficient for the
prosecution to prove the doing of the prohibited act, the existence of the circumstance or the happening of the consequence as the case may be. In
other words, any defence of ignorance, mistake or reasonable case is excluded unless the law allows it to some limited extent. The reason offered by
some judges for construing an offence as one of strict liability is that the statute is silent on the question of mens rea; yet if there is in law an implied
requirement of mens rea (as has from time to time been said), the fact that the Act does not express the requirement should not affect the matter.
Strict liability is sometimes called “absolute liability,†but this, although accepted usage, is a misnomer, because all the usual defences are available
except the defences of lack of intention, recklessness or negligence. For example, the defendant can set up a defence of duress, automatism, and
perhaps impossibility in some circumstances.
An offence may be of strict liability in one respect but require a fault element in another. Driving while disqualified is an offence of strict liability in
respect of the disqualification (the driver is guilty although he firmly, but mistakenly, believed that he was not then disqualified), but it requires an
intentional act of driving. We call it an offence of strict liability because that is its predominant feature.
When it is held that an element of a serious crime is a matter of strict liability, this is probably because the courts fear that the prosecution would find it
too difficult to establish mens rea in respect of that element. Serious problems arise when the element in question is highly speculative.â€
17. I have also gone through the impugned judgment, which is well reasoned and is based on complete, correct, and proper appreciation of evidence so
placed on record. I do not find any infirmity or illegality in the same.
Given the above discussions, I find that there is no merit in the present appeal, and hence the same is dismissed. The judgment rendered by the learned
trial Court in Criminal Case No. 35-1-2008 /45-III-08, dated May 11, 2009, is affirmed. Bail bonds stand discharged.
