2025:HHC:34145 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.243 of 2015 Reserved on: 05.09.2025 Decided on: 09.10.2025 State of Himachal Pradesh ...…. Appellant Versus Gulshal Kumar ….Respondent Coram The Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Ajit Sharma, Deputy Advocate General. For the Respondent : Mr. Ramesh Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 02.09.2024 passed by Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P. (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the charges framed under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 2025:HHC:34145 accused before the learned Trial Court for the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P. It was asserted that ASI Kuldeep Kumar (PW-4), Constable Sugreev Singh and HHG Vinod Kumar were present at Hanuman Chowk, Dehra on 22.11.2010 at about 10:15 p.m. A vehicle bearing registration No. CH02-2437 came from Dhaliara’s side. The police stopped the vehicle. The driver identified himself as Gulshan Kumar (the present accused). The police checked the vehicle and recovered twenty boxes of country liquor marked ‘Lal Kila’. The police demanded a permit to transport the country liquor, but he could not produce any permit. ASI Kuldeep (PW-4) prepared a rukka(Ext.PW-4/A) and sent it to the Police Station through Constable Sugreev Singh, where F.I.R.(Ext.PW3/A) was registered. The police checked the boxes and found 12 bottles in each box. Four bottles were retained as samples for chemical analysis, which were sealed with a seal impression ‘T’. Sample seal ‘T’ (Ext.PW-1/A) was obtained on a separate piece of cloth, and the seal was handed over to HHG Vinod Kumar after use. Boxes (Ext.P-1 to P-20) containing liquor bottles (Ext.P-21 to Ext. P-256) and samples were seized vide memo (Ext. PW-1/A). The vehicle bearing registration No. CH02-2437 was seized vide 3 2025:HHC:34145 memo (Ext.PW-1/B). ASI Kuldeep Kumar (PW-4) investigated the matter. He prepared the site plan (Ext.PW-4/B) and recorded the statements of prosecution witnesses as per their version. The case property was deposited with HC Sultan Singh (PW-5), who deposited it in Malkhana and made an entry in Register No. 19. He sent samples to CTL Kandaghat, District Solan, H.P. vide RC No.138 of 2010 through constable Surender Kumar, who deposited all the articles at CTL Kandaghat and handed over the receipt to MHC on his return. The result of the analysis (Ext.PA) was issued, in which samples were shown to contain 50% proof of alcohol strength each and fit for human consumption. After completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court charged the accused with the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P., to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined five witnesses to prove its case. Narender Jaswal (PW-1) is an eyewitness. Constable Surender Kumar (PW-2) carried the samples to CTL Kandaghat. SI Tilak Raj (PW-3) signed the F.I.R. ASI Kuldeep (PW-4) 4 2025:HHC:34145 effected recovery and conducted the investigation. HC Sultan Singh (PW-5) was working as MHC with whom the case property was deposited. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that the police had intercepted the vehicle bearing registration No.CH02-2437. He denied the rest of the prosecution’s case. He claimed that he was innocent and was falsely implicated in the case. He did not produce any evidence in his defence. 6 Learned Trial Court held that rukka shows that only the police party was present at the place of the incident. Narender Jaswal (PW-1) was not mentioned in the rukka. ASI Kuldeep (PW-4) also did not assert anything about the presence of Narender Jaswal (PW-1) in his statement on oath. Narender Jaswal (PW-1), on the other hand, claimed that he was also present with the police party and was associated before the interception of the car. He could not have been called to the spot after the interception of the car because his house or the office was not located at the place of the incident. The vehicle came from the Dhaliara side; therefore, it should have been on the left side, but was shown to have been intercepted on the 5 2025:HHC:34145 right side of the road. All these aspects made the prosecution’s case doubtful. Hence, the accused was acquitted. 7. Being aggrieved by the judgment passed by the learned Trial Court, the State has preferred the present appeal, asserting that the learned Trial Court erred in acquitting the accused. The testimonies of prosecution witnesses were discarded for an untenable reason. Twenty boxes containing 240 bottles of country liquor ‘Lal Kill’ were recovered by the police. The police could not have planted such a huge quantity of liquor to implicate the accused. Narender Jaswal (PW-1) categorically stated that the recovery was made in his presence, and the learned Trial Court erred in disbelieving him. The testimonies of official witnesses cannot be discarded without any cogent reason. The police had made a chance recovery at 10:15 p.m., and it was not possible to associate any independent witness during the investigation. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr Ajit Sharma, learned Deputy Advocate General, for the appellant/State and Mr Ramesh Sharma, learned counsel for the respondent. 6 2025:HHC:34145 9. Mr Ajit Sharma, learned Deputy Advocate General, for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. It was proved on record that the accused was transporting twenty boxes of country liquor, each containing twelve bottles of country liquor marked Lal Kila. The statements of prosecution witnesses corroborated each other. Learned Trial Court acquitted the accused on the ground that the independent witnesses were not associated. It was a case of chance recovery, and it was not possible to associate any independent witness at night. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Ramesh Sharam, learned counsel for the respondent, supported the judgment passed by the learned Trial Court and submitted that no interference is required with it. Hence he, prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme 7 2025:HHC:34145 Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed at page 440: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) 8 2025:HHC:34145 ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of 9 2025:HHC:34145 innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of the accused's innocence is further reinforced, reaffirmed and strengthened by the trial court, having secured his acquittal. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the 10 2025:HHC:34145 trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view 11 2025:HHC:34145 consistent with the guilt of the accused is possible from the evidence available on record.” 13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. The Rukka(Ext. PW-4/A) specifically mentions that ASI Kuldeep (PW-4), Constable Sugreev Singh and HHG Vinod Kumar was present at Hanuman Chowk, Dehra, after the investigation of F.I.R. No. 156 of 2010. This rukka nowhere mentions the name of Narender Jaswal (PW-1). Entry in the daily diary (Ext.PB) shows that an intimation regarding the accident was received in the Police Station on 22.11.2010 at 7:10 p.m. ASI Kuldeep (PW-4), Constable Sugreev Singh and HHC Vinod Kumar were sent to verify the correctness of the information. Thus, the initial version shows that only the police party had proceeded to investigate the information related to the accident. There is nothing to show that Narender Jaswal had also accompanied the accused. Therefore, the initial record does not show the presence of Narender Jaswal (PW-1). 15. ASI Kuldeep Kumar (PW-4) stated in his examination-in-chief that he, Constable Sugreev Singh, and HHG Vinod Kumar were present at Hanuman Chowk on 22.11.2010 at 10:15 p.m. when they intercepted a vehicle bearing 12 2025:HHC:34145 registration No. CH02-2437 and recovered twenty boxes, each containing twelve bottles of country liquor. He has nowhere stated in his examination-in-chief that Narender Jaswal (PW-1) was present with the police party. Therefore, the learned Trial Court was justified in doubting the presence of Narender Jaswal (PW-1). 16. ASI Kuldeep (PW-4) stated in his cross-examination that Narender Jaswal (PW-1) met him at Hanuman Chowk. He was going on foot. He called him. He admitted that Narender Jaswal (PW-1) does not have any residence or office at Hanuman Chowk. Narender Jaswal (PW-1) stated that he was coming from Jawalaji and met the police at Hanuman Chowk. He denied that the vehicle had already been intercepted by the police. His statement also suggests that he was accompanying the police party before intercepting the vehicle, but this statement does not explain why his name was not mentioned in the rukka. 17. The prosecution did not examine Constable Sugreev Singh and HHG Vinod Kumar, who were accompanying ASI Kuldeep Kumar (PW-4) and whose names were mentioned in the rukka as well as the entry in the daily diary recorded by the 13 2025:HHC:34145 police; therefore, an adverse inference has to be drawn against the prosecution for withholding these witnesses. 18. ASI Kuldeep Kumar (PW-4) stated in his cross- examination that they were not standing at Hanuman Mandir Chowk but were standing towards the other side, adjacent to a Rehadi. The accused was driving the vehicle towards its own side. Site plan (Ext.PW-4/B) shows the place of recovery at point ‘A’, which is towards the right side of the vehicle coming from Chintpurni/Dhaliara. Learned Trial Court had rightly pointed out that the vehicle coming from Chintpurni/Daliara would be towards the left side of the road and could not have been intercepted towards the right side of the road. 19. Narender Jaswal (PW-4) admitted in his cross- examination that some of the boxes shown to him in the Court were open and some were sealed. ASI Kuldeep Kumar (PW-4) also stated in his cross-examination that five boxes were intact and the remaining were damaged. HC Sultan Singh (PW-5) specifically stated that the case property remained safe when it remained with him, which means that the case property was not damaged while it was in his possession. The prosecution did not explain this fact. 14 2025:HHC:34145 20. Thus, the learned Trial Court was justified in disbelieving the prosecution’s case when the prosecution had not examined Constable Sugreev Singh and HHG Vinod Kumar, whose names were mentioned in the rukka and entry in the daily diary and examined Narender Jaswal (PW-1), whose name was nowhere mentioned in the rukka as well as in the daily diary. The case property was not intact, and the prosecution’s case regarding the interception and recovery of country liquor was made doubtful by the site plan (Ext.PW-4/B). thus, learned Trial Court had taken a reasonable view which could have been taken based on the material on record, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible. 21. No other point was urged. 22. In view of the above, the present appeal fails and it is dismissed.Pending applications, if any, also stand disposed of. 23. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent/accused is directed to furnish bail bonds in the sum of ₹25,000/- with one surety of the like amount to the satisfaction of the learned Trial Court 15 2025:HHC:34145 which shall be effective for six months with a stipulation that in an event of a Special Leave Petition being filed against this judgment or on grant of the leave, the respondent/accused on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 24. A copy of the judgment, along with records of the learned Trial Court, be sent back forthwith. (Rakesh Kainthla) 09th October, 2025. Judge (ravinder)