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2025 DIGILAW 630 (HP)

State of Himachal Pradesh v. Dev Raj

2025-04-04

SUSHIL KUKREJA

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JUDGMENT : Sushil Kukreja, J. 1. The instant appeal has been preferred by the appellant-State, laying challenge to the judgment of acquittal dated 22.03.2011, passed by the learned Additional Sessions Judge, Fast Track Court, Kullu, HP, in Criminal Appeal No.46 of 2010, whereby the appeal preferred by the accused (respondent herein) against the judgment of conviction dated 31.08.2010 and order of sentence dated 01.09.2010, passed by learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, HP, in Criminal Case No.80-I of 2007, convicting and sentencing him to undergo simple imprisonment for three months and to pay an amount of Rs.3,000/- for the commission of offence under Section 61 (1)(a) of the Punjab Excise Act as applicable in the State of Himachal Pradesh (hereinafter referred to as “the Act”) was accepted and the accused was acquitted. 2. The facts giving rise to the present appeal, which emerge from the records, are that on 19.04.2007, while a police party headed by ASI Mathru Ram was on patrolling duty at Banjar Bazaar, then at around 2.30 pm it received a secret information that accused Dev Raj was dealing in the business of selling country made liquor in his rented accommodation without having any licence and permit. On receipt of such information, ASI Mathru Ram (Investigating Officer) constituted raiding party by associating two independent witnesses Ashok Kumar and Narender Bhardwaj, residents of Banjar and went to the house of the accused. During the search of his house, eight boxes of country made liquor “Ranger Orange" were found in the kitchen. The Investigating Officer separated one bottle each from each box for the purpose of chemical analysis and thereafter, the said boxes were put in four plastic sacks and the separated eight bottles were sealed with seal impression 'M' alongwith four sacks and the seal after use was handed over to witness Ashok Kumar. Thereafter, rukka was prepared and sent to the police station through Constable Lakshman Dass, on the basis of which, the FIR in question was registered against the accused. During the course of investigation, the Investigating Officer prepared site plan, recorded statements of the witnesses and sample bottles were sent to CTL, Kandaghat, which were found country made liquor. On completion of the investigation, the charge-sheet was prepared and presented before the learned trial Court. 3. During the course of investigation, the Investigating Officer prepared site plan, recorded statements of the witnesses and sample bottles were sent to CTL, Kandaghat, which were found country made liquor. On completion of the investigation, the charge-sheet was prepared and presented before the learned trial Court. 3. On conclusion of the trial, the learned trial Court convicted the accused for commission of the offence punishable under Section 61(1)(a) of the Act and sentenced him as stated hereinabove. Feeling aggrieved, the accused preferred an appeal before the learned First Appellate Court and the learned Additional Sessions Judge, Fast Track Court, Kullu, vide judgment dated 22.03.2011, allowed the appeal and acquitted the accused of the offence punishable under Section 61(1)(a) of the Act. Hence, the State-appellant preferred the instant appeal against the impugned judgment of the learned First Appellate Court. 4. Learned Additional Advocate General contended that the learned First Appellate Court has not rightly appreciated the evidence on record and has wrongly held that the compliance of Section 100(4) of Cr.PC has not been made, however, at the time of search, two local witnesses were associated in the raiding party. He further contended that the learned First Appellate Court has not appreciated the fact that huge quantity of country made liquor was recovered from the house of the accused. With these submissions, he prayed for setting-aside the impugned judgment of the learned First Appellate Court and acceptance of the appeal. 5. Per contra, learned counsel for the respondent- accused contended that the prosecution has failed to prove its case beyond all reasonable doubt, therefore, the learned First Appellate Court has rightly acquitted the accused of the charge framed against him. 6. I have heard the learned Additional Advocate General as well as learned counsel for the respondent and also carefully gone through the entire records. 7. At the very outset, it needs to be observed that the Appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal as an order of acquittal adds up to the presumption of innocence in favour of the accused. In Dhanapal vs. State By Public Prosecutor, Madras , (2009) 10 SCC 401 , the Hon’ble Apex Court has held that the presumption of innocence of the accused is strengthened by the judgment of acquittal passed by the trial Court. In Dhanapal vs. State By Public Prosecutor, Madras , (2009) 10 SCC 401 , the Hon’ble Apex Court has held that the presumption of innocence of the accused is strengthened by the judgment of acquittal passed by the trial Court. The relevant portion of the aforesaid judgment reads as under:- “25. The same principle has been followed in Atley v. State of U.P., AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the Court said: “5. …It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Which had the advantage of observing the demeanor of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal." 8 . In N. Vijaykumar vs. State of Tamil Nadu , (2021) 3 Supreme Court Cases 687, the Hon’ble Apex Court has held that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and secondly, the presumption of his innocence is further strengthened by the judgment of his acquittal passed by the trial Court. The relevant portion of the judgment reads as follows:- “20. ……... By considering the long line of earlier cases this Court in the judgment in the case of Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of ac- quittal. ……... By considering the long line of earlier cases this Court in the judgment in the case of Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of ac- quittal. Para 42 of the judgment which is relevant reads as under: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:- (1) to (3) xxx xxx xxx (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is avail- able 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 his innocence is further reinforced, reaffirmed and strengthened by the trial Court.” 9 . In Jafarudheen & Ors . Vs. State of Kerala, 2022 LiveLaw (SC) 403, the Hon’ble Apex Court has held that the presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. The relevant portion of the aforesaid judgment reads as under:- “25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 10. One of the grounds, on which the accused has been acquitted by the learned First Appellant Court, is that the Investigating Officer has failed to comply with the provisions of Sections 100(4) and 165, Cr.P.C. 11. One of the grounds, on which the accused has been acquitted by the learned First Appellant Court, is that the Investigating Officer has failed to comply with the provisions of Sections 100(4) and 165, Cr.P.C. 11. The case of the prosecution is that the Investigating Officer had received a secret information that the accused was dealing in the business of selling country made liquor in his rented accommodation. On this information, he constituted a raiding party by associating independent witnesses Ashok Kumar and Narender Bhardwaj and went to the house of the accused and during search of his house, eight boxes of country made liquor ‘Ranger Orange” were found in the kitchen. 12. Admittedly both the independent witnesses i.e. Ashok Kumar and Narender Bhardwaj were not from the same locality. At this stage, it would be relevant to reproduce Section 100(4) of Cr.PC, which reads as under:- “ 100. Persons in charge of seraqch-warrants. (1) XXX XXX (2) XXX XXX (3) XXX XXX (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.” 13. Thus, as per the aforesaid provision of Section 100(4), Cr.PC before making a search, the Investigating Officer was bound to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality, if no such inhabitant of the said locality is available or is willing to be a witness to the search. However, in the present case, the Investigating Officer had not complied with this provision in its letter and spirit as both the independent witnesses associated by the Investigating Officer were not from the same locality from where the police had allegedly recovered eight boxes of country made liquor. There is no material on record to suggest that no witness of the same locality was available or was willing to be a witness to the search. 14. There is no material on record to suggest that no witness of the same locality was available or was willing to be a witness to the search. 14. The other ground of acquittal is that search carried out by the police was in contravention of the provision of Section 165 (1) of Cr.P.C. which empowers the police officer to make a search, during the course of his investigation into any offence alleged to have been committed by any person, of any place. Sub-Section (1) of Section 165 of Cr.P.C. mandates recording of reasons for conducting a search in following terms:- “ 165. Search by police officer - (1) Whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is incharge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.” 15. Section 165(1) Cr.P.C. lays down that whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for belief that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing may proceed to search or to cause search to be made. 16. However, in the instant case, the Investigating Officer (PW-4) had not recorded the information received by him in writing. There is no material on record to suggest that the Investigating Officer had recorded the grounds of his belief before making search without obtaining the search warrant. 16. However, in the instant case, the Investigating Officer (PW-4) had not recorded the information received by him in writing. There is no material on record to suggest that the Investigating Officer had recorded the grounds of his belief before making search without obtaining the search warrant. He had not sent the information received to the Police Station, which was hardly 500 meters away from the spot before conducting search of the house. 17. It is a settled law that non-compliance of these provisions, i.e. Sections 100 and 165, Cr.P.C. would amount to an irregularity only and the effect of the same on the main case depends upon the facts and circumstances of each case. However, in the case in hand, the Investigating Officer has deliberately failed to comply with these provisions in its letter and spirit. One of the independent witnesses PW-2 Ashok Kumar had turned hostile and he specifically deposed that his signatures were obtained on blank paper. He also denied that the police also associated another independent witness Narender Bhardwaj. He was cross-examined at length by the learned Public Prosecutor, but nothing favourable could be elicited from his cross-examination. During his cross- examination by the learned defence counsel, he deposed that his signatures were obtained on the recovery memo Ext. PW2/A at the police station. The prosecution has failed to examine other independent witness, namely Narender Bhardwaj for the reasons best known to it. Therefore, in view of the facts and circumstances of the present case, non-compliance of the provisions of Sections 100(4) and 165, Cr.P.C creates a serious doubt about the story of the prosecution. 18. According to the prosecution, eight boxes of country made liquor were recovered from the house of the accused. However, as per case of the prosecution itself, only eight bottles i.e. one bottle each was taken out from each of the eight boxes for the purpose of chemical analysis. In Dharam Pal & Another Vs. State of H.P., 2009 (2) Sim. L.C. 208 , this Court in para-10 of the judgment, held as under:- 10. “According to prosecution, 48 bottles were recovered from the van. The prosecution case is that samples were taken only from four bottles which were ultimately sent for chemical examination and report of the Chemical Examiner Ex.PW-5/F was obtained. In Mahajan Vs. State of Himachal Pradesh , 2003 Cr. “According to prosecution, 48 bottles were recovered from the van. The prosecution case is that samples were taken only from four bottles which were ultimately sent for chemical examination and report of the Chemical Examiner Ex.PW-5/F was obtained. In Mahajan Vs. State of Himachal Pradesh , 2003 Cr. L.J. 1346 , 8 bottles of XXX Rum were recovered but samples were taken from three bottles and such samples were found to be of IMFS. On those facts a learned Single Judge of this Court in Para 12 has held as follows: "In view of such report, at the most, the prosecution has been able to prove the possession of the accused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS." There is nothing on record to show that the bottles from which the samples were not taken were in fact containing liquor. In other words, there is no worth believing material on record to show that 44 bottles were containing liquor. Therefore, prosecution case at its best is that four bottles were containing liquor.” 19. In the present case also, since only eight bottles were taken out for the purpose of chemical analysis, therefore, it cannot be said that other bottles allegedly recovered were also containing liquor especially in view of the fact that the extract of Malkhana Register was not produced. As per the statement of PW-1 Chaman Lal, the extract of Malkhana Register was not placed on record. Hence, the absence of link evidence also creates a serious doubt about the truthfulness and genuineness of the case of the prosecution. 20. Consequently, in view of the detailed discussion made hereinabove, this Court is of the firm opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The view taken by the learned First Appellant Court while acquitting the accused is a reasonable view based on the evidence on the record and the same cannot be said to be perverse or contrary to the material on record. Hence, no interference in the judgment of acquittal dated 22.03.2011, passed by the learned Additional Sessions Judge, Fast Track Court, Kullu, HP, in Criminal Appeal No.,46 of 2010, is required as the same is the result of proper appreciation of evidence and law. Hence, no interference in the judgment of acquittal dated 22.03.2011, passed by the learned Additional Sessions Judge, Fast Track Court, Kullu, HP, in Criminal Appeal No.,46 of 2010, is required as the same is the result of proper appreciation of evidence and law. The appeal, which is devoid of merits, deserves dismissal and is accordingly dismissed. Bail bonds are discharged. Record of the learned trial Court be sent back.