Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1485

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
State of H.P. - Appellant
Versus
Vinod Kumar @ Ghungaru - Respondent
Cr. Appeal No. 400 of 2011
Decided On : 13-10-2025

Advocates:
Advocate Appeared:
For the Appellant/State :Mr Jitender K. Sharma, Additional Advocate General
For the Respondent:Mr Naresh Kumar Sharma, Advocate

Appeal against acquittal in illicit liquor possession upheld where search non-compliant with CrPC Section 165, independent witnesses hostile, case property integrity doubted, and trial court's reasonable view not perverse.

Headnote:(A) Punjab Excise Act - Section 61(1)(a) [as applicable] - CrPC - Sections 100, 165 - Possession of country liquor without permit - Appeal against acquittal - Search based on secret information without recording reasons or sending to Magistrate as required under Section 165 CrPC vitiates recovery - Independent witnesses turned hostile, denied house search and recovery inside - Official witnesses contradictory on bottle condition and sealing - Case property bottles produced half-filled/empty without seal or explanation for leakage - Trial Court justified in doubting prosecution case; acquittal not perverse. (Paras 15-25)

(B) CrPC - Section 378 - Appeal against acquittal - Interference only if judgment patently perverse, based on misreading/omission of material evidence, no reasonable view possible - Double presumption of innocence; if two views possible, acquittal view preferred. (Paras 12-14)

Facts of the case:
Police received secret information of illicit liquor sale from house, associated independent witnesses, searched premises, allegedly recovered seven boxes of twelve bottles each country liquor without permit, took samples from each box, sealed with seal 'B', seized remainder, investigated, samples tested positive for 48.4% alcohol. Trial Court acquitted due to hostile independent witnesses, non-compliance Section 100 CrPC, contradictory official testimonies. State appealed asserting official witnesses reliable, witnesses influenced by accused.

Findings of Court:
Trial Court took reasonable view; prosecution case suffers from procedural lapses, unreliable witnesses, case property doubts; appeal dismissed.

Issues: Whether trial Court’s acquittal perverse warranting reversal; compliance with search safeguards under CrPC; credibility of recovery supported only by officials post hostile independents; integrity of case property.

Ratio Decidendi: Non-compliance with Section 165 CrPC mandatory for warrantless search under Excise Act via Section 46(2); hostile independents necessitate cautious scrutiny of officials; mere signatures on seizure memo insufficient without content proof; unexplained case property condition creates reasonable doubt justifying acquittal; appellate restraint where trial view reasonable.

Result: Appeal dismissed.

Table of Content
1. secret information prompted recovery of illicit country liquor. (Para 2)
2. acquittal based on hostile independents and contradictions. (Para 3 , 4 , 5 , 6)
3. trial court wrongly discarded official witness testimonies. (Para 7 , 8 , 9)
4. procedural lapses under crpc and excise act. (Para 10)
5. interfere with acquittal only if patently perverse. (Para 11 , 12 , 13 , 14)
6. section 165 crpc non-compliance vitiates warrantless search. (Para 15 , 16 , 17 , 18)
7. hostile independents necessitate caution with police evidence. (Para 19 , 20 , 21)
8. case property defects create prosecution doubt. (Para 22 , 23 , 24 , 25)
9. appeal dismissed upholding reasonable acquittal order. (Para 26 , 27 , 28 , 29)

JUDGMENT :
Rakesh Kainthla, Judge

The appellant has filed the present appeal against the judgment dated 16.06.2011 passed by learned Judicial Magistrate First Class, Court No. 2, Ghumarwin, District Bilaspur, H.P. (learned Trial Court) vide which respondent (accused before the 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). (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 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 Balak Ram (PW-7), HC Rakesh Kumar, and HC Rajender Singh (PW-3) were present near the State Bank of India (SBI) on 16.12.2008. They received a secret information at about 3:30 p.m. that Vinod Kumar @ Ghungaru (present accused) was selling country liquor from his home without any permit, and in case of search of his house, a huge quantity of liquor could be recovered. The police associated Ram Prakash (PW-4) and Muni Lal (PW-1), went to the house of the accused, searched it and recovered seven boxes of (Ext.P-78 to Ext.P-83) bearing the words ‘Lal Killa’, each box containing twelve bottles (Ext. P-1 to Ext.P-77) of country liquor. The accused could not produce any permit for possessing the country liquor. The police took out one bottle as a sample from each box, sealed each sample bottle with seal ‘B’, obtained a seal impression (Ext.PW-7/C) on a separate piece of cloth and handed over the seal to Ram Prakash after its use. The police put the boxes in the gunny bags (Ext.P-84 to Ext. P-86) and seized the liquor vide seizure memo (Ext.PW-1/A). Rukka (Ext.PW-7/A) was prepared and was sent to the Police Station, where F.I.R. (Ext.PW-5/A) was registered. SI Balak Ram (PW-7) conducted the investigation. He prepared the site plan (Ext.PW-7/D) and recorded the statements of prosecution witnesses as per their version. He deposited the case property with HC Jogesh Kumar (PW-5), who made an entry in the Malkhana Register at Sl. No. 334 (Ext.PW-5/B), deposited the case property in the Malkhana and sent the sample bottles to CTL Kandaghat on 17.12.2008 through Constable Ravi Kumar (PW-2) vide RC (Ext.PW-5/C). Constable Ravi Kumar (PW-2) deposited all the bottles at CTL, Kandghat and handed over the receipt to MHC on his return. The result of the analysis (Ext. PX and Ext.PY) were issued stating that samples of country liquor contained 48.4 % proof of alcohol each. After completion of the investigation, the challan was prepared and presented before the learned Trial Court.

3. Learned Trial Court framed the charges 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.), to which the accused pleaded not guilty and claimed to be tried.

4. The prosecution examined seven witnesses to prove its case. Muni Lal (PW-1) and Ram Prakash (PW-4) did not support the prosecution’s case. Constable Ra