STATE OF HP vs KAPIL @DHILOO

2026:HHC:47488-DB
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. : 208 of 2019
Reserved on : 28.09.2026
Decided on : 29.10.2026
Uploaded on : 29.10.2026
State of Himachal Pradesh ...Appellant.
Versus
Kapil @ Dhillo & Others …Respondents.

Coram
Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Hon’ble Mr. Justice Bhupesh Sharma, Judge.
Whether approved for reporting? Yes
For the Appellant: Mr. Raj Negi, Deputy Advocate General.
For the Respondents: Mr. Anirudh Sharma, Advocate, for
respondent Nos.1 & 2.
Mr. Tarun Mehta, Advocate, for
respondent No.3.
______________________________________________________
Bhupesh Sharma, Judge
The State of Himachal Pradesh is in appeal before this
Court against the judgment of acquittal dated 10.09.2018 passed by
learned Special Judge-III, Solan, District Solan, H.P., in Session
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Trial No.5ASJ-II/7 of 2017 (Regd. No.4/2017), titled as ‘ State of
Himachal Pradesh Vs. Kapil @ Dhiloo & Ors’ , whereby the
respondents (hereinafter referred to as 'accused') have been
acquitted for the commission of offences punishable under
Sections 20 and 29 of Narcotic Drugs and Psychotropic
Substances Act, 1985.
2. The accused persons were sent to face trial for the
commission of an offences punishable under Sections 20 and 29
of Narcotic Drugs and Psychotropic Substances Act, 1985, by
SHO Police Station Sadar Solan, District Solan, H.P., in Case
FIR Number 297/2016 dated 26.12.2016 registered under
Sections 20 and 29 of Narcotic Drugs and Psychotropic
Substances Act, 1985. The accused persons were prosecuted for
the said offences, and were subsequently acquitted by the
learned Trial Court vide impugned judgment dated 10.09.2018
passed in Session Trial No.5ASJ-II/7 of 2017 (Regd. No.4/2017),
titled as ‘ State of Himachal Pradesh Vs. Kapil @ Dhiloo & Ors’.
3. Briefly, the facts relevant for the disposal of this
appeal, in short, are as under:
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3(a) On 26.12.2016 at about 1:15 PM at Dohri Diwar near
Subathu bifurcation Solan, District Solan, H.P., the accused
persons were found in joint possession of 2.002 Kgs of ‘Charas’
(Cannabis) while traveling in Mahindra XYLO vehicle No.HR-
46C-5936.
3(b). On 26.12.2016 at 11:30 AM, ASI Ashwani Kumar
Incharge, Special Investigation Unit (SIU), Solan left for routine
patrolling and crime detection duty towards Solan Bazaar,
Saproon Chowk, Rabbon etc. vide Rapat No.3 dated 26.12.2016.
He was accompanied by other police officials of SIU namely HC
Rajesh Kanwar No.05, HHC Balbir Singh No.750, HHC Ajay
Kumar No.432, Constable Amit Kumar No.523 and Constable
Ashwani Kumar No.760. The Police Party during the course of
patrolling reached Saproon Chowk at 11:30 AM where ASI
Ashwani Kumar received a secret, specific and reliable
information regarding transportation of contraband in golden
brown Mahindra XYLO vehicle having registration No.5936. The
information was further specific that the said vehicle was enroute
Chandigarh. Since the information was reliable, ASI Ashwani
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Kumar acted upon the same and recorded reasons of belief
under Section 42(ii) of Narcotic Drugs and Psychotropic
Substances Act, 1985 and sent the same to the Supervisory
Officer of SIU, Solan through Constable Amit Kumar No.523. The
Police party later setup a nakka at Subathu bifurcation, Dohri
Diwar, Solan and at about 01:15 PM they intercepted the said
vehicle coming from Solan bazar side. The vehicle was stopped
and three persons were found travelling therein. The accused
Harinder Malik @ Amit (A-3) was on the driver’s seat, the
accused Kapil @ Dhiloo (A-1) was sitting in the front seat and the
accused Naveen Bhura (A-2) was occupying the rear seat. The
Police party, thereafter searched the vehicle after associating two
independent witnesses namely Rajesh Thakur and Rajesh
Verma and recovered one backpack(Pithu) kept by the accused
Kapil @ Dhiloo in between his legs, which was opened and
checked leading to recovery of two blue colour polythene packets
containing 2.002 Kgs of ‘ Charas’( Cannabis). The accused
persons could not account for the said contraband, which was
found in the vehicle in which they were travelling. The contraband
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so recovered from the possession of the accused persons was
wrapped with yellow tape in blue polythene bags, which were
sealed in a cloth parcel after affixing three seals of impression
‘A’. The sample seal impression 'A' was taken on a separate
piece of cloth for the purpose of record, and the same after its
use was handed over to the independent witness Rajesh Thakur.
The Investigating Officer i.e. ASI Ashwani Kumar filled relevant
columns of NCB-I form in triplicate. Thereafter, the case property
i.e. the sealed parcel along with seal impression ‘A’ and NCB-I
form in triplicate were taken into possession vide recovery and
seizure memo in the presence of independent witnesses i.e.
Rajesh Thakur and Rajesh Verma. The signature of the accused
and witnesses were obtained on the said memo. The copy of
same was handed over to the accused free of cost. Thereafter,
the Investigating Officer ASI Ashwani Kumar scribed rukka and
sent the same to SHO Police Station Sadar Solan for registration
of FIR against the accused persons through Constable Amit
Kumar No.523 and in pursuance thereof, case FIR No.297/2016
dated 26.12.2016 under Sections 20 and 29 of Narcotic Drugs
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and Psychotropic Substances Act, 1985 was registered at Police
Station Sadar Solan against the accused persons. The
Investigating Officer thereafter, prepared spot map and recorded
the statements of witnesses under Section 161 Cr.PC.
3(c). On 26.12.2026 at 8:31 PM, ASI Ashwani Kumar
presented the case property i.e. one sealed parcel bearing three
seals of impression ‘A’ containing 2.002 Kgs of
‘ Charas’ (Cannabis) along with sample seal mark ‘A’ NCB-I form
in triplicate before Inspector Anil Sharma, SHO Police Station
Sadar Solan for re-sealing of the case property in terms of
Section 55 of the Narcotic Drugs and Psychotropic Substances
Act, 1985. The said parcel was re-sealed with three seals of
impression ‘T’. The relevant columns of NCB-I form in triplicate
were updated and thereafter, the case property was deposited
with HHC Kansi Ram No.532, Incharge Malkhana, Police Station
Sadar Solan for safe custody.
3(d) On 27.12.2026, ASI Ashwani Kumar prepared
Special Report under Section 57 of Narcotic Drugs and
Psychotropic Substances Act, 1985 and sent the same to Dy.SP,
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Solan through HHC Balbir Singh No.750. Pursuant to the receipt
of the Special Report under Section 57 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, necessary entries regarding
the said receipt were made at Sr. No.13 of the Special Reports
Register.
3(e). On 27.12.2016, ASI Ashwani Kumar being
Investigating Officer presented the case property before learned
Chief Judicial Magistrate, Solan for certification of correctness of
inventory of the seized contraband under Section 52A(3) of
Narcotic Drugs and Psychotropic Substances Act, 1985. The
learned Chief Judicial Magistrate having been satisfied with the
said inventory, which was as per the seizure documents issued
the certificate under Section 52A(2) of Narcotic Drugs and
Psychotropic Substances Act, 1985.
3(f) The case property, was later sent for chemical
examination to State FSL, Junga vide RC No.221/16-17 through
Constable Pawan Kumar and vide State Forensic Science
Laboratory Report No.3447 NDPS Division 932/2016, dated
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09.01.2017, and was found extract of Cannabis and sample of
‘Charas’.
3(g) Pursuant to the completion of investigation, the
accused persons were found to have committed the offences
punishable under Section 20 read with Section 29 of Narcotic
Drugs and Psychotropic Substances Act, 1985 and final report
under Section 173(2) Cr.PC was prepared against them and a
case was filed before learned Special Judge Solan, District
Solan, H.P. The accused persons were prosecuted for the
commission of offences under Section 20 read with Section 29 of
Narcotic Drugs and Psychotropic Substances Act, 1985 in
Session Trial No.5ASJ-II/7 of 2017 (Regd. No.4/2017), titled as
‘ State of Himachal Pradesh Vs. Kapil @ Dhiloo & Ors’.
3 (h). The learned trial Court after considering the oral and
documentary evidence led by the prosecution acquitted the
accused persons for the commission of offences punishable
under Section 20 read with Section 29 of Narcotic Drugs and
Psychotropic Substances Act, 1985 vide impugned judgment of
acquittal dated 10.09.2018 passed in Session Trial No.5ASJ-II/7
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of 2017 (Regd. No.4/2017), titled as ‘ State of Himachal Pradesh
Vs. Kapil @ Dhiloo & Ors’.
4. Feeling aggrieved and dissatisfied with the judgment
of acquittal dated 10.09.2018 , passed in Session Trial No.5ASJ-
II/7 of 2017 (Regd. No.4/2017), titled as ‘State of Himachal
Pradesh Vs. Kapil @ Dhiloo & Ors’. the State of Himachal
Pradesh is in appeal before this Court on various grounds.
5. GROUNDS OF APPEAL:
(i) “That the impugned judgment passed by the
Learned Trial Court is wrong on facts as well as
on law, hence, liable to be set-aside.
(ii) That the impugned judgment is based on
hypothetical reasoning surmises and
conjectures hence liable to be set-aside.
(iii) That the Learned Trial Court has appreciated
the evidence on record in a slip-shod and
perfunctory manner and has acquitted the
accused person on the flimsy grounds.
(iv) That the Learned Trial Court has not only failed
to view the prosecution evidence in its proper
perspective but at the same time has set
unrealistic standards to evaluate the direct and
cogent prosecution evidence. The reasoning of
the Trial Court is manifestly unreasonable and
unsustainable as there was no reason for the
Trial Court to discard the well reasoned and
consistent testimony of prosecution witnesses
on material point.
(v) That the Learned Trial Court has discarded the
testimony of prosecution witnesses for
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untenable reasons in the absence of any proof
of enmity no reasons what so ever have been
assigned for discarding the version of official
witnesses. The acquittal in this case is in
disregard of material evidence on record and
as such, the same is unreasonable, therefore,
the impugned judgment is liable to be set-
aside.
(vi) That the prosecution case has been
supported in its material particulars by the
prosecution witnesses PW-11, PW15, PW-16
& PW-17.
(vii) That there is nothing on record the suggest
that the aforesaid witnesses have any malice
against the accused person and have falsely
implicate him in this case as such the
testimony of these witnesses are cogent
trustworthy to base conviction against the
accused person. Thus the findings of the Trial
Court are perverse and are liable to be set
aside.
(viii) That the contraband seized by the IO on
weighing was found to be 2.002 Kilograms
(Cannabis). Further, it is settled that in the
absence of corroboration by independent
witnesses the version of the official witnesses
cannot be disbelieved if their version inspire
confidence. The contradictions as pointed are
minor and do not go to the root of the case,
therefore, for the aforesaid reasons, the
judgment deserves to be set aside.
(ix) That no other appeal or revision arising out of
the impugned judgment has been filed either
in this Hon'ble Court or in the Hon'ble
Supreme Court of India.
(x) That this appeal is being filed within the
period of limitation.”
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6. We have heard learned counsel for the parties and
carefully gone through the material on record and the findings
recorded by the learned Trial Court while passing the impugned
judgment dated 10.09.2018.
7. Learned Deputy Advocate General has strenuously
argued that the learned Trial Court failed to appreciate the
material evidence adduced by the prosecution, leading to
miscarriage of justice. The official witnesses of search, recovery
and seizure namely Constable Ashwani Kumar No.760 (PW-11),
HC Rajesh Kanwar No.05 (PW-15), Constable Amit Kumar
No.523 (PW-17) and SI Ashwani Kumar (PW-16) being
Investigating Officer have fully supported the factum of recovery
of 2.002 Kgs of ‘Charas’(Cannabis) from the possession of the
accused persons while travelling in Mahindra XYLO No.HR-46C-
5936 on 26.12.2016 at 11:15 AM at Dohri Diwar near Subathu
bifurcation Solan, District Solan H.P. Furthermore, the
Investigating Officer pursuant to the receipt of the information
against the accused complied with the provision under Section
42(2) of Narcotic Drugs and Psychotropic Substances Act, 1985
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by recording reasons of belief and sending the same to the
concerned officer. The recovery of the contraband was effected
in the presence of two independent witnesses namely Rajesh
Thakur (PW-1) and Rajesh Verma (PW-2). Although, these
witnesses have not fully supported the prosecution case, but they
have admitted the signatures over the recovery and seizure
memo Ex.PW1/A, which is sufficient to presume their presence
on the spot. It was also argued that there are no procedural
lapses rendering the prosecution case vulnerable and
unacceptable. The learned Trial Court failed to appreciate the
material and evidence in the right perspective, therefore, the
findings recorded therein are perverse and liable to be set aside
and the accused persons needs to be convicted for the
commission of offences punishable under Sections 20 and 29 of
Narcotic Drugs and Psychotropic Substances Act, 1985.
8. Per contra, the learned counsel for respondents No.1
and 2 and respondent No.3 have defended the judgment of
acquittal passed by the learned Trial Court after considering the
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oral and documentary evidence adduced by the prosecution,
which does not inspire confidence.
9. Perusal of the record evidently shows that the
learned Trial Court, on considering and evaluating the material
and evidence, found material discrepancies in the proseuction
evidence and accordingly acquitted the accused persons.
10. Since the present appeal has been filed against the
judgment of acquittal, therefore, the scope of powers of the
Appellate Court in the case of an appeal against acquittal needs
to be considered before embarking upon the factual matrix.
11. The scope of the powers of the Appellate Court in
case of an appeal against acquittal has been elaborately dealt
with by the Hon’ble Apex Court in Muralidhar alias Gidda &
another vs. State of Karnatka reported in (2014) 5 SCC 730 ,
which reads as under :-
"10. Lord Russell in Sheo Swarup [1], highlighted the
approach of the High Court as an appellate court
hearing the appeal against acquittal. Lord Russell
said,
"... the High Court should and will always give
proper weight and consideration to such
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matters as (1) the views of the trial Judge as to
the credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not weakened
by the fact that he has been acquitted at his
trial; (3) the right of the accused to the benefit
of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of
seeing the witnesses." The opinion of the Lord
Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal
Singh[2] while dealing with the powers of the
High Court in an appeal against acquittal under
Section 417 of the Criminal Procedure Code
observed:
"7...........the High Court has full power to
review the evidence upon which the order
of acquittal was founded, but it is equally
well settled that the presumption of
innocence of the accused is further
reinforced by his acquittal by the trial
court, and the findings of the trial court
which had the advantage of seeing the
witnesses and hearing their evidence can
be reversed only for very substantial and
compelling reasons.”
12. The approach of the appellate court in the
appeal against acquittal has been dealt with by
this Court in Tulsiram Kanu [3], Madan Mohan
Singh [4], Atley [5] , Aher Raja Khima [6], Balbir
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Singh [7], M.G. Agarwal [8], Noor Khan [9],
Khedu Mohton [10], Shivaji Sahabrao Bobade
[11], Lekha Yadav [12], Khem Karan [13],
Bishan Singh [14], Umedbhai Jadavbhai [15],
K. Gopal Reddy [16], Tota Singh [17], Ram
Kumar [18], Madan Lal [19], Sambasivan [20],
Bhagwan Singh [21], Harijana Thirupala [22], C.
Antony [23], K. Gopalakrishna [24], Sanjay
Thakran [25] and Chandrappa [26]. It is not
necessary to deal with these cases individually.
Suffice it to say that this Court has consistently
held that in dealing with appeals against
acquittal, the appellate court must bear in mind
the following:
(i) There is presumption of innocence in
favour of an accused person and such
presumption is strengthened by the order
of acquittal passed in his favour by the
trial court,
(ii) The accused person is entitled to the
benefit of reasonable doubt when it deals
with the merit of the appeal against
acquittal,
(iii) Though, the power of the appellate
court in considering the appeals against
acquittal are as extensive as its powers
in appeals against convictions but the
appellate court is generally loath in
disturbing the finding of fact recorded by
the trial court. It is so because the trial
court had an advantage of seeing the
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demeanor of the witnesses. If the trial
court takes a reasonable view of the
facts of the case, interference by the
appellate court with the judgment of
acquittal is not justified. Unless, the
conclusions reached by the trial court
are palpably wrong or based on
erroneous view of the law or if such
conclusions are allowed to stand, they
are likely to result in grave injustice, the
reluctance on the part of the appellate
court in interfering with such conclusions
is fully justified, and
(iv) Merely because the appellate court
on reappreciation and re-evaluation of
the evidence is inclined to take a
different view, interference with the
judgment of acquittal is not justified if
the view taken by the trial court is a
possible view. The evenly balanced
views of the evidence must not result in
the interference by the appellate court in
the judgment of the trial court.”
12. The Hon’ble Supreme Court in Rajesh Prasad vs.
State of Bihar & another, (2022) 3 SCC 471 , observed as
under:-
“31. The circumstances under which an
appeal would be entertained by this Court
from an order of acquittal passed by a High
Court may be summarized as follows:
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31.1. Ordinarily, this Court is cautious in interfering
with an order of acquittal, especially when the order
of acquittal has been confirmed up to the High
Court. It is only in rarest of rare cases, where the
High Court, on an absolutely wrong process of
reasoning and a legally erroneous and perverse
approach to the facts of the case, ignoring some of
the most vital facts, has acquitted the accused, that
the same may be reversed by this Court, exercising
jurisdiction under Article 136 of the Constitution.
[State of U.P. v. Sahai (1982) 1 SCC 352] Such
fetters on the right to entertain an appeal are
prompted by the reluctance to expose a person,
who has been acquitted by a competent court of a
criminal charge, to the anxiety and tension of a
further examination of the case, even though it is
held by a superior court. [Arunchalam v. P.S.R.
Sadhanantham (1979) 2 SCC 297] An appeal
cannot be entertained against an order of acquittal
which has, after recording valid and weighty
reasons, has arrived at an unassailable, logical
conclusion which justifies acquittal. [State of
Haryana vs. Lakhbir]
31.2. However, this Court has on certain occasions,
set aside the order of acquittal passed by a High
Court. The circumstances under which this Court
may entertain an appeal against an order of
acquittal and pass an order of conviction, may be
summarized as follows:
31.2.1.Where the approach or reasoning of the High
Court is perverse;
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(a) Where incontrovertible evidence has
been rejected by the High Court based on
suspicion and surmises, which are rather
unrealistic. [State of Rajasthan v. Sukhpal
Singh (1983) 1 SCC 393] For example, where
direct, unanimous accounts of the
eyewitnesses, were discounted without cogent
reasoning. [State of U.P. vs. Shanker 1980
Supp SCC 489]
(b) Where the intrinsic merits of the
testimony of relatives, living in the same house
as the victim, were discounted on the ground
that they were “interested” witnesses. [State of
U.P. v. Hakim Singh (1980)
(c) Where testimony of witnesses had been
disbelieved by the High Court, on an unrealistic
conjecture of personal motive on the part of
witnesses to implicate the accused, when in
fact, the witnesses had no axe to grind in the
said matter. [State of Rajasthan v. Sukhpal
Singh (1983) 1 SCC 393]
(d) Where dying declaration of the deceased
victim was rejected by the High Court on an
irrelevant ground that they did not explain the
injury found on one of the persons present at
the site of occurrence of the crime.
[Arunachalam vs. P.S.R. Sadhanantham (1979)
2 SCC 297]
(e) Where the High Court applied an
unrealistic standard of “implicit proof” rather
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than that of “proof beyond reasonable doubt”
and therefore evaluated the evidence in a
flawed manner. [State of U.P. v. Ranjha Ram
(1986) 4 SCC 99]
(f) Where the High Court rejected circumstantial
evidence, based on an exaggerated and
capricious theory, which were beyond the plea
of the accused; [State of Maharashtra v.
Champalal Punjaji Shah (1981) 3 SCC 610]
(g) Where the High Court acquitted the accused
on the ground that he had no adequate motive
to commit the offence, although, in the said
case, there was strong direct evidence
establishing the guilt of the accused, thereby
making it necessary on the part of the
prosecution to establish “motive”. [State of A.P.
v. Bogam Chandraiah (1990) 1 SCC 445]
31.2.2.Where acquittal would result is gross
miscarriage of justice;
(a) Where the findings of the High Court,
disconnecting the accused persons with
the crime, were based on a perfunctory
consideration of evidence, [State of U.P.
v. Pheru Singh 1989 Supp (1) SCC] or
based on extenuating circumstances
which were purely based in imagination
and fantasy [State of U.P. v. Pussu
(1983) 3 SCC 502]
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(b) Where the accused had been
acquitted on ground of delay in
conducting trial, which delay was
attributable not to the tardiness or
indifference of the prosecuting agencies,
but to the conduct of the accused himself;
or where accused had been acquitted on
ground of delay in conducting trial relating
to an offence which is not of a trivial
nature. [State of Maharashtra v.
Champalal Punjaji Shah (1981) 3 SCC
610].”
13. In H.D. Sundara & others vs. State of Karnataka,
(2023) 9 SCC 581 , the Hon’ble Supreme Court has observed that
the appellate court cannot overturn acquittal only on the ground
that after reappreciating evidence, it is of the view that the guilt of
the accused was established beyond a reasonable doubt. The
relevant portion of the above judgment is as under:-
“8. In this appeal, were are called upon to
consider the legality and validity of the
impugned judgment rendered by the High Court
while deciding an appeal against acquittal
under Section 378 of the Code of Criminal
Procedure, 1973 (for short “CrPC”). The
principles which govern the exercise of
appellate jurisdiction while dealing with an
appeal against acquittal under Section 378
CrPC can be summarized as follows:
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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
trial court is 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.
9. Normally, when an appellate court exercises
appellate jurisdiction, the duty of the appellate court is
to find out whether the verdict which is under
challenge is correct or incorrect in law and on facts.
The appellate court normally ascertains whether the
decision under challenge is legal or illegal. But while
dealing with an appeal against acquittal, the appellate
court cannot examine the impugned judgment only to
find out whether the view taken was correct or
incorrect. After re-appreciating the oral and
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documentary evidence, the appellate court must first
decide whether the trial court’s view was a possible
view. The appellate court cannot overturn acquittal
only on the ground that after reappreciating evidence,
it is of the view that the guilt of the accused was
established beyond a reasonable doubt. Only
recording such a conclusion an order of acquittal
cannot be reversed unless the appellate court also
concludes that it was the only possible conclusion.
Thus, the appellate court must see whether the view
taken by the trial court while acquitting an accused
can be reasonably taken on the basis of the evidence
on record. If the view taken by the trial court is a
possible view, the appellate court cannot interfere
with the order of acquittal on the ground that another
view could have been taken.”
14. It is more than settled that the powers of Appellate
Court while hearing the appeals against the acquittal are not
unbridled. There is a clear caveat that in case the view arrived at
by the trial Court is a possible one borne from the material on
record, the same cannot be viewed differently, even if, there is a
possibility of any other view. Reference in this regard can be
made to the judgment passed by Hon'ble Supreme Court in
Jafarudheen and others vs. State of Kerala (2022) 8 SCC 440 ,
wherein it has been held as under:
“Scope of Appeal filed against the Acquittal:
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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.”
15. 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 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:
“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
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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 .”
16. Thus, the law on the issue can be summarized to the
effect that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the Appellate Court can interfere with the order of
acquittal. Further, if two views were possible on the basis of the
evidence on record, the Appellant Court should not disturb the
findings of acquittal recorded by the Trial Court, merely, because
the Appellate Court could have arrived at a different conclusion
than that of the Trial Court.
17. The burden of proof in a criminal trial never shifts and
it is always the burden of the prosecution to prove its case
beyond reasonable doubt on the basis of acceptable evidence. In
fact, it is a settled principle of criminal jurisprudence that more
serious the offence, the stricter the degree of proof required,
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since a higher degree of assurance is required to convict the
accused.
18. The careful perusal of the record shows that the
independent witnesses associated by the Investigating Officer
during the course of proceedings namely Rajesh Thakur (PW-1)
and Rajesh Verma (PW-2) have not supported the prosecution
case qua the recovery of the contraband in their presence from
the vehicle of the accused persons. Apparently, Rajesh Thakur
(PW-1) has although admitted the sealing of the case property
and seizure thereof vide recovery and seizure memo Ex.PW1/A,
nevertheless he has denied the recovery of the contraband from
vehicle No.HR-46C-5936 in his presence. Similarly, Rajesh
Verma (PW-2) has although admitted that the contraband was
weighed in his presence, but has denied that the said recovery
was effected from the accused persons in his presence. He has
also denied that the sealing of the contraband and its seizure
thereof was carried out on the spot. Therefore, having considered
the evidence of these witnesses, the material aspects of the
prosecution case qua intercepting of vehicle No.HR-46C-5936 in
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their presence is not proved. Their presence on the spot during
the course of recovery of the contraband, sealing thereof and
vide seizure memo Ex.PW1/A is also not proved. Therefore, the
non-supporting of the prosecution case by these two independent
witnesses creates doubt regarding veracity of the prosecution
case.
19. The official witnesses of the raiding party namely
Constable Ashwani Kumar No.760 (PW11), HC Rajesh Kanwar
No.05 (PW-15), Constable Amit Kumar No.523 (PW-17) and SI
Ashwani Kumar (PW-16) being Investigating Officer have
although, come on record supporting the prosecution case qua
the recovery of 2.002 Kgs of ‘ Charas’ (Cannabis) from the
possession of the accused persons while travelling in vehicle
No.HR-46C-5936 on 26.12.2016 at 01:15 PM at Dohri Diwar,
Solan, District solan, H.P., however, the careful scrutiny of their
statements reveal material contradictions on the material points
rendering their version unworthy of credence and unbelievable.
20. There is no cogent evidence suggesting the exact
place where the Investigating Officer received the secret
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information against the accused persons for transporting
contraband in vehicle No.HR-46C-5936. As per statement of the
Investigating Officer ASI Ashwani Kumar (PW-16) he received
the information at about 11:30 AM when he was present at
Saproon Chowk. He has further testified that the information was
received when he was outside of the vehicle in which the Police
party was travelling, however, Constable Amit Kumar (PW-17)
has contradicted the aforesaid aspect by testifying that the
information was conveyed to the Investigating Officer when he
was in the vehicle and after receiving the same he reduced into
writing while sitting in the vehicle. However, Constable Ashwani
Kumar No.760 (PW-11) has testified that ASI Ashwani Kumar
received secret information when he was inside traffic Gumti at
Saproon Chowk. Therefore, the aforesaid witnesses are
deposing in contradiction to each other regarding the exact place
where the Investigating Officer received prior information. Also
there are contradictions in their respective statements as to the
place where the document i.e. reasons of belief Ex.PW9/A was
reduced into writing.
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21. As per the recovery and seizure memo Ex.PW1/A,
the contraband after its recovery and identification was put in the
blue polythene bags and was wrapped with yellow tape and was
sealed in a cloth parcel by affixing three seals of impression ‘A’.
This fact can also be ascertained after going through the rukka
Ex.PW16/A and copy of FIR No.297/16 Ex.PW4/B. The
statements of the official witnesses are consistent regarding the
fact that the case property before sealing was wrapped with
yellow tape. However, the case property on being opened in the
Court during the course of trial on 13.12.2017 did not match with
the mode and manner in which it was sealed during the course
investigation. The case property was put to Constable Ashwani
Kumar No.760 (PW-11) while recording his statement and as per
the observation of the Court, the parcel Ex.P-1 on opening
contained two polythene packets Ex.P-2 and P-3 blue in colour
wrapped with brown tape containing Charas Ex.P-4. Therefore,
there is discrepancy regarding the colour of the tape, which was
used by the Police in wrapping the case property when it was
seized. The aforesaid factum becomes more relevant since the
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independent witness Rajesh Thakur (PW-1), who was allegedly
handed over the seal ‘A’ after its use has testified that the Police
took the seal from him and handed over on the day of statement
was recorded in the Court. Hence, the aforesaid fact cannot be
brushed aside under the given circumstances.
22. There are also material contradictions in the
statements of the official witnesses regarding the place of
opening the Pithu bag Ex.P-5 and checking thereof. The
Investigating Officer ASI Ashwani Kumar (PW-16) has testified
that he searched the bag outside the vehicle, which fact is duly
contradicted by Constable Ashwani Kumar No.760 examined as
PW-11 and HC Rajesh Kanwar No.5 examined as PW-15. As per
their statement, the bag was opened and checked inside the
vehicle.
23. After carefully considering oral and documentary
evidence led by the prosecution, the following points can be
enumerated being fatal to the prosecution case:
(i). The recovery of the contraband from the conscious
possession of the accused persons is not proved on considering
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the statements of the independent witnesses Rajesh Thakur
(PW-1) and Rajesh Verma (PW-2).
(ii). The identify and safe custody of the case property is
not proved on record, in view of the statement of independent
witness Rajesh Thakur (PW-1) since the seal ‘A’ used during the
course of seizure of the case property never remained in his
possession and was taken back by the Police after the alleged
formalities.
(iii). There are material contradictions in the statements of
official witnesses regarding the place where prior information was
received, recording reasons of belief under Section 42(2) of
Narcotic Drugs and Psychotropic Substances Act, 1985 and the
place where the bag was searched.
24. The learned Trial Court after having considered the
aforesaid aspects rightly acquitted the accused persons since the
prosecution case suffers from material infirmities, contradictions
and omissions, which are insufficient for securing conviction of
the accused persons.
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26. In view of the above, the present appeal fails and it is
dismissed.
27. In view of the provisions of Section 437-A of the Code
of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
Sanhita, 2023), the respondents/accused persons are directed to
furnish bail bonds in the sum of 25,000/- each with one surety ₹25,000/- each with one surety
in the like amount each to the satisfaction of learned Registrar
(Judicial) within four 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
respondents/accused persons on receipt of notice(s) thereof,
shall appear before the Hon’ble Supreme Court.
28. A copy of this judgment along with the record of the
learned Trial Court be sent back forthwith.
29. The appeal is, accordingly, disposed of, so also the
pending miscellaneous application(s), if any.
(Vivek Singh Thakur)
Judge
(Bhupesh Sharma)
Judge
th
29 October , 2026 (Kiran)
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