Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1653

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
State of H.P. - Appellant
Versus
Jaissa Devi - Respondent
Cr. Appeal No. 430 of 2012
Decided On : 01-11-2025

Advocates:
Advocate Appeared:
For the Appellant :Mr Lokender Kutlehria, Additional Advocate General
For the Respondent:Mr Bimal Gupta, Senior Advocate with Mr Trigun Negi, Advocate

High Court upholds acquittal in illicit liquor case due to procedural search lapse by woman, hostile independent witness, and non-production of case property; interference in acquittal only if perverse or ignores material evidence.

Headnote:(A) Punjab Excise Act - Section 61(1)(a) (as applicable) - CrPC - Sections 100(3), 378 - Illicit lahan recovery - Drum of 200 litres recovered, sample taken and sealed, remainder destroyed on spot due to transport inability - Chemical analysis confirmed 20.4% proof alcohol - Trial court convicted, appellate court acquitted due to search not by woman despite accused alone, independent witness hostile, non-production of case property - High Court upheld acquittal as reasonable view, non-production fatal, procedural lapse and lack of corroboration render case unreliable. (Paras 7, 16-23)

(B) Appeal against acquittal - Scope - Interference only if judgment patently perverse, based on misreading/omission of material evidence, or no reasonable acquittal view possible - Double presumption of innocence - If two reasonable views possible, not to disturb acquittal. (Paras 13-15)

Facts of the case:
Police on patrol received secret information of illicit liquor dealing, reduced to writing, registered FIR, associated witnesses, searched house where accused alone, recovered drum of lahan, took samples, sealed, destroyed remainder on spot, investigated, sample analysed positive. Trial court convicted for six months SI and fine; appellate court acquitted citing procedural lapses and evidentiary defects; state appealed.

Findings of Court:
Appellate court took reasonable view; discrepancies in raiding party formation and witness association; search irregularity under Section 100(3) CrPC; independent witness denied recovery; non-production of drum undermines case; conviction unsustainable.

Issues: Whether appellate acquittal perverse warranting interference; validity of search procedure, witness reliability, impact of case property non-production.

Ratio Decidendi: Acquittal justified by procedural search lapse, hostile independent witness, and non-production of primary evidence despite sample; appellate view reasonable, no perversity to interfere. Result : Appeal dismissed.

Table of Content
1. secret info prompted recovery of 200l illicit lahan. (Para 1 , 2)
2. trial convicted; appellate acquitted on procedural defects. (Para 3 , 4 , 5 , 6 , 7)
3. parties argue evidence appreciation and property production. (Para 8 , 9 , 10 , 11)
4. interfere with acquittal only if patently perverse. (Para 12 , 13 , 14 , 15)
5. search lapses and unreliable witnesses create doubt. (Para 16 , 17 , 18 , 19 , 20)
6. non-production of case property dooms prosecution case. (Para 21 , 22 , 23)
7. uphold reasonable acquittal; dismiss state appeal. (Para 24 , 25 , 26 , 27 , 28)

JUDGMENT :
Rakesh Kainthla, Judge

The present appeal is directed against the judgment dated 8.6.2012, passed by learned Additional Sessions Judge, Sirmour at Nahan, District Sirmour, HP, vide which the judgment of conviction dated 20.2.2009 and order of sentence dated 21.2.2009, passed by learned Judicial Magistrate First Class, Court No.1, Paonta Sahib, District Sirmour, H.P. (learned Trial Court) were set-aside and the respondent (accused before learned Trial Court) was acquitted of the charged offences. (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 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 Raj Kumar (PW7), LC Maya Devi (PW1) and HHC Surat Singh (PW3) were on patrolling duty on 15.10.2006 vide entry No. 47 (Ex.PW4/A). They received secret information at 9.15 AM, near Kripal Shilla Gurudwara and Bangala Colony, that Jassa Devi (accused) was dealing in illicit liquor, and a huge quantity of liquor could be recovered from the search of the house. The information was reduced into writing vide memo (Ex.PW7/A) and was sent to the Police Station, where FIR (Ex.PW3/A) was registered. The police associated Balkis (PW2) and Amar and went to the house of the accused, where she was found alone. The police searched the house and recovered a drum containing 200 litres of lahan. The police retained a sample of lahan in a container of 5 litres and a bottle. They sealed the container and the bottle with seal ‘H’. Seal impression (Ex.PW7/B) was taken on a separate piece of cloth, and the seal was handed over to witness Balkis (PW2) after its use. The drum of lahan was destroyed on the spot. The container and the bottle were seized vide seizure memo (Ex.PW1/A). ASI Raj Kumar (PW7) investigated the matter. He prepared the site plan (Ex.PW7/C) and recorded the statements of witnesses as per their version. He deposited the container and bottle with ASI Raghubir Singh (PW5), who deposited it in the malkhana and sent the sample to CTL, Kandaghat, for analysis through LHC Naresh Kumar (PW6) vide RC No. 221/06. LHC Naresh Kumar deposited the sample with CTL, Kandaghat, in a safe condition and handed over the receipt to MHC on his return. The result of the analysis (Ex.PW7/E) was issued, in which it was mentioned that the sample of illicit lahan contained 20.4% proof alcohol. After the 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 seven witnesses to prove its case. Maya Devi (PW1) and Balkis Kumar (PW4) are the witnesses to the recovery. HHC Surat Singh (PW2) carried the rukka to the Police Station. Constable Kamlesh Kumar (PW4) proved the entry in the daily diary. ASI Raghuvir Singh (PW5) was posted as MHC with whom the case property was deposited. Naresh Kumar (PW6) carried the sample to CTL Kandaghat. ASI Raj Kumar (PW7) investigated the matter.

5. The accuse