2026:HHC:29819 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 164 of 2014 Reserved on: 10.7.2026 Date of Decision: 21.7.2026. State of H.P. ...Appellant Versus Ashok Kumar ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant : Mr Lokender Kutlehria, Additional Advocate General. For the Respondent : Mr Raghunandan Chaudahry, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 18.09.2013, passed by learned Judicial Magistrate First Class-II, Dehra, District Kangra, H.P. (learned Trial Court), vide which the respondent (accused before learned Trial Court) was acquitted of the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.). (The parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:29819 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 before the learned Trial Court against the accused 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 Rafo Dass (PW4), HC Anil Kumar (PW2), HHC Suresh Kumar (PW7) and Constable Raj Kumar (not examined) had gone for patrolling duty on 23.03.2009 in a vehicle being driven by HHC Punjab Singh. ASI Rafo Dass received secret information at about 5.45 p.m. near Banuay-Da-Khuh that a vehicle bearing registration No. HP-36A-0908, being driven by Ashok Kumar, was transporting a huge quantity of liquor, which could be recovered by search. The police set up a naka. Prakash Chand (PW1) came to the spot in the meantime. The police associated him. The vehicle reached the spot at about 06.10 p.m. The police signalled the driver to stop. The police checked the vehicle and found 30 boxes in the dicky and 10 boxes on the middle seat. The police opened the seals of three boxes and found that each box contained 12 bottles of 750 ml of country liquor bearing the 3 2026:HHC:29819 mark ‘Lal Kila’. The driver identified himself as Ashok Kumar. The police demanded the permit for transporting the liquor, but he could not produce any permit. Three bottles were taken out as samples. Each bottle was sealed with Seal ‘R’. A sample seal (Ex.PW4/A) was taken on a separate piece of cloth, and the seal was handed over to witness Prakash Chand after its use. The liquor and a vehicle were seized vide memo (Ex.PW2/A). Signatures of H.C. Anil Kumar and Prakash Chand were obtained on the memo. Rukka (Ex.PW4/B) was prepared and was sent to the Police Station, where FIR (Ex. PW4/C) was registered. ASI Rafo Dass investigated the matter. He prepared the site plan (Ex.PW4/E) and recorded the statements of witnesses as per their version. The case property was deposited with HC Rajesh Kumar (PW5), who deposited it in Malkhana and sent the sample to CTL Kandaghat vide RC No. 47/21 (Ex.PW5/A) through HHC Suresh Kumar (PW7), who deposited the sample bottles at CTL, Kandaghat and handed over the receipt to the MHC on his return. The documents of the vehicle were seized vide memo (Ex.PW2/B). The result of the analysis (Ex.PW4/J) was issued, in which it was shown that samples of country liquor contained 49.3% proof alcohol each. After the completion of the 4 2026:HHC:29819 investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with a commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of HP), to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined seven witnesses to prove its case. Prakash Chand (PW1) and Khushi Ram (PW6) did not support the prosecution's case. Anil Kumar (PW2) witnessed the recovery. HC Kuldeep (PW3) effected the recovery. ASI Rafo Dass (PW4) investigated the matter. HC Rajesh Kumar (PW5) was working as MHC, with whom the case property was deposited. HC Suresh Kumar (PW7) carried the samples to CTL, Kandaghat. 5. The accused in his statement recorded under Section 313 of the Cr.PC denied the prosecution's case in its entirety. He claimed that he was innocent. However, he did not produce any evidence in his defence. 5 2026:HHC:29819 6. The learned Trial Court held that the case property was not produced in the Court in the same manner in which it was stated to have been recovered. The bottles were produced before the Court inside the gunny bags, but they were found in the cardboard boxes. There was no explanation for the production of the case property in the gunny bags. The independent witnesses had also not supported the prosecution's case, which made it highly doubtful. Therefore, the learned Trial Court acquitted the accused. 7. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. The statements of prosecution witnesses corroborated each other in material particulars. HC Anil Kumar and ASI Rafo Dass proved the prosecution's version. The learned Trial Court erred in rejecting the testimonies of police officials. The defence had not taken any objection regarding the integrity of the case property. ASI Rafo Dass explained that the boxes inside the gunny bags had decomposed with time. Learned Trial Court failed to notice this aspect. Hence, it was prayed that the present 6 2026:HHC:29819 appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State and Mr Raghunandan Chaudhary, learned counsel for the respondent/ accused. 9. Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State, submitted that the learned Trial Court erred in rejecting the prosecution's case. The prosecution’s witnesses had consistently deposed about the recovery of the boxes from the vehicle being driven by the accused. The learned Trial Court rejected the prosecution's version because the boxes were not produced before the Court. The statements were recorded after three years, and the explanation furnished by the Investigating Officer that the boxes had decomposed with time was probable. The accused had not challenged the integrity of the case property, and learned Trial Court was in error in rejecting the prosecution's case because of this fact. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 7 2026:HHC:29819 10. Mr Raghunandan Chaudhary, learned counsel for the respondent/accused, submitted that the integrity of the case property was not proved. No person has deposed that the case property was put in the gunny bags, and the production of the case property in the gunny bags made the prosecution's version highly doubtful. The independent witnesses had also not supported the prosecution's case, and the learned Trial Court was right in rejecting the prosecution's version. Therefore, he prayed that the present appeal be dismissed. 11. I have given a 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 Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on 8 2026:HHC:29819 the evidence led before the learned Trial Court. It was observed on page 438: “24. 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 consistent with the guilt of the accused is possible from the evidence available on record. 13. This position was reiterated in State of M.P. v. Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed: 21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv.State of Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581andRajesh Prasad v. State of Bihar (2022) 3 SCC 471. 14. A similar view was taken in Tulasareddi v. State of Karnataka, 2026 SCC OnLine SC 89, wherein it was observed: 9 2026:HHC:29819 “29. From the aforesaid decisions rendered by this Court, it can be said that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. Further, 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. The following principles have to be kept in mind by the Appellate Court while dealing with the appeals against an order of acquittal: (a) whether the judgment of acquittal suffers from patent perversity; (b) whether the judgment is based on misreading/omission to consider the material evidence on record; (c) an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.’ (d) the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; (e) 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 (f) 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.” 10 2026:HHC:29819 15. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 16. It was specifically mentioned in the Rukka (Ex.PW4/A) that the police had received information at Banuay- Da-Khuh on 23.03.2009 at about 05.45 p.m. that a vehicle bearing registration No. HP-36A-0908 was transporting the liquor. HC Anil Kumar (PW2) stated that the police received the information near Banuay-Da-Khuh that a vehicle bearing registration No.HP 36A-0908, being driven by Ashok Kumar, was transporting liquor. ASI Rafo Dass (PW4) also stated that information was received near Banuay-Da-Khuh that a vehicle bearing registration No.HP-36A-0908, being driven by Ashok Kumar, was transporting liquor. Thus, the witnesses are consistent regarding the receipt of information about the transportation of the liquor in the vehicle. 17. Section 46(2) of the Punjab Excise Act (as applicable to the State of H.P.) provides that an officer empowered under the Act will exercise the same powers in respect of such investigation as an officer in-charge of a Police Station may exercise under Chapter XIV of Cr.P.C. Section 50 of the Punjab 11 2026:HHC:29819 Excise Act provides that provisions of the Code of Criminal Procedure 1898 relating to arrest, detention and custody, searches, summons, warrant of arrest, search warrant, and investigation shall apply to all actions taken under the Act. Therefore, ASI Rafo Das (PW-4) was required to comply with the requirements of Section 165 of the CrPC before searching the vehicle of the accused. 18. It was laid down by the Hon’ble Supreme Court in ITC Ltd. v. State of Karnataka, 2025 SCC OnLine SC 1971, that every search must be preceded by a warrant, but if it is not possible to do so, the search can be conducted by complying with the requirements of Section 165 of Cr.P.C. It was observed:- “17. Section 165Cr. P.C. deals with circumstances and prerequisites for searches without a warrant. As a general rule, every search must be preceded by a warrant, and reasons to believe must be recorded. Section 165 applies where, due to exigent circumstances, it is not possible to obtain a search warrant. In such cases, the officer may, after recording his reasons in writing and specifying, as far as possible, the thing for which the search is to be made, conduct or cause a search of the place. Section 165(4) provides that the general provisions relating to searches contained in Section 100 also apply to searches under Section 165. It is therefore clear that even under Section 165, the existence of reasons to believe that an imminent search is necessary must be recorded, with 12 2026:HHC:29819 as much detail as possible. The mandate of Section 100(4) must also be satisfied even in searches under Section 165. Xxx 19.2. In every search conducted under a special enactment without a warrant, the requirement of recording reasons to believe is mandatory. The reasons necessitating the search must be relevant and must reflect application of mind based on some information - either from a third party or personal knowledge - and cannot be based on mere presumption or extraneous considerations. Such reasons cannot rest on mere suspicion or subjective satisfaction; something more substantial is required for a prudent person to conclude that a search and/or seizure is necessary.” 19. In the present case, ASI Rafo Dass has not complied with the requirement of Section 165, which would vitiate the search and the consequent recovery. 20. Prakash Chand (PW1) stated that police had set up a naka at Banuay-Da-Khuh. He was joined as a witness. A vehicle was stopped, and his signature was obtained. He was permitted to be cross-examined, and he denied that the police had intercepted a vehicle in his presence from which the recovery was effected. Therefore, the independent witness has not supported the prosecution's version. 21. HC Anil Kumar stated that 40 boxes were recovered on the spot. The boxes were opened, and samples were taken 13 2026:HHC:29819 out. The samples were sealed, and the boxes were seized by the police. A similar statement was made by ASI Rafo Dass (PW4). HC Rajesh Kumar (PW5) stated that 37 boxes of Lal Kila, 3 boxes of Lal Kila and 3 samples were deposited with him. These boxes had decayed, and these were put in the gunny bag. He admitted in his cross-examination that he could not tell how many bottles were found in each of the bags. He admitted that no bottle or gunny bag was sealed. His testimony that the gunny bag deteriorated with the passage of time is not supported by any contemporaneous document. No entry in the daily diary or in the malkhana register was proved to show that boxes had deteriorated, and these were put in the gunny bag. No order of the competent authority regarding the transfer of case property to gunny bags was produced on record. Therefore, the learned Trial Court was justified in doubting the prosecution's version. It was laid down by this Court in Amandeep Singh & Ors. Vs State of HP 2010 (3) Shim LC 39, that when the case property was not produced before the Court, the conviction of the accused cannot be recorded. It was observed:- 9…So far as the statement of PW1 Chaman Lal is concerned, no sample of liquor or any seal of the seized liquor has been produced and proved in Court. The bottles 14 2026:HHC:29819 from which the samples were taken have also not been proved in Court. Learned trial Court, as also the Appellate Court, had presumed as a matter of fact that what the witnesses had stated was the correct state of affairs without considering that facts were to be proved from documents which admittedly existed but were not produced in Court. There is no presumption in law that oral evidence can override documentary proof. The existence of a seal can be proved by its production. The Court cannot presume that the sample was kept in safe custody, more especially when such a fact is established by a written document, namely register (s) and certificate in Register No. 21, which is not produced. What the prosecution tried to prove remains unclear. Merely saying that liquor was seized is insufficient without establishing its quantity and safekeeping.” 22. While dealing with the case of non-production of case property in forest case, It was laid down by the Hon’ble Supreme Court in Pawan Kumar v. State of H.P., (2019) 4 SCC 182: (2019) 2 SCC (Cri) 39: 2019 SCC OnLine SC 359 that when the seized wood and the vehicle were not produced, and only one sample was produced, the accused could not have been convicted of the commission of offences punishable under Section 379 of the IPC and Section 42 of the Forest Act. It was observed at page 183: - “4. We have heard the learned counsel for the respondent in opposition to the appeal and considered the nature of the evidence available. Non-production of the seized wood and the vehicle, the primary evidence of the offence, renders the 15 2026:HHC:29819 prosecution's case fragile and unsustainable. Mere production of the seizure memo does not tantamount to the production of the seized woods and the lorry. Unless the seized wood was produced, mere production of a sample, and there is no material in support that the sample was out of the same 22 logs, we are unable to sustain the conviction of the appellants.” 23. Therefore, in these circumstances, the learned Trial Court was justified in doubting the prosecution’s case due to the non-production of the case property. 24. ASI Rafo Dass (PW4) admitted in his cross- examination that 2-3 shops were located at Banuay-Da-Khuh. He admitted that the Panchayat Pradhan or Member Panchayat was not called to the spot. He explained that there was insufficient time. This is hardly any explanation. The information was received at 05.45 p.m., and the vehicle was intercepted at 06.10 p.m. after a lapse of 25 minutes. Thus, the police had sufficient time to join the independent witness, but the police failed to join any independent witness. It is true that the testimonies of police officials cannot be doubted because they happened to be the police officials, but when the police had definite information regarding the transportation of the liquor, the police were supposed to join independent witnesses, and 16 2026:HHC:29819 failure to do so will make the testimonies of the police officials suspect. 25. Thus, it cannot be said that the prosecution had succeeded in proving its case beyond a reasonable doubt. The non-compliance of Section 165, non-association of independent witnesses, non-corroboration by independent witnesses, and non-production of the case property would all cast doubt regarding the prosecution's case. Learned Trial Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible. 26. No other point was urged. 27. Consequently, the present appeal fails, and it is dismissed. The appeal stands disposed of, so also the pending miscellaneous application(s), if any. 28. 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 in the like amount to the satisfaction of the learned Trial Court within four 17 2026:HHC:29819 weeks, which shall be effective for six months with stipulation that in the event of 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. 29. Records be sent back to the learned Trial Court forthwith, along with a copy of the judgment. (Rakesh Kainthla) Judge 21st July, 2026 (Chander)