Fifty bottles were said to have been counted in a jungle, two were sent to the laboratory, and the tubes were never produced in court
Justice Rakesh Kainthla acquitted a man prosecuted since 2007, holding that the chemical examiner never said the liquor differed from licensed distillery spirit and that two bottles are within the permissible limit.
On 28 April 2007 a police patrol in a jungle in Sirmaur district saw a man carrying a white bag on his right shoulder at about 8.15 a.m. They stopped him, opened the bag and found two rubber tubes of different sizes containing liquor — 30 bottles in the larger tube and 20 in the smaller, on the prosecution case. One sample bottle was taken from each tube. Nineteen years later, on 14 October 2026, the High Court has set aside his conviction and acquitted him.
What the police did, and recorded
The procedure was documented in the ordinary way. The samples were sealed with seal ‘H’, the tubes were tied and each sealed with the same seal, a seal impression was taken on a separate piece of cloth, and the seal was handed over to a Head Constable after use. The tubes, the plastic bag and the samples were seized by memo. A rukka was prepared and sent to the police station, where the FIR was registered. The investigating officer prepared the site plan, recorded statements, arrested the accused and brought him and the case property to the police station, handing the property to the Moharrar Head Constable, who entered it in the malkhana register.
The two samples were handed to a Constable on 3 May 2007 to carry to the Composite Testing Laboratory at Kandaghat. He deposited them and handed the receipt back on his return. The report of analysis stated that the samples of liquor contained 38.2 per cent proof alcohol each. A challan was presented for an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to Himachal Pradesh.
The prosecution examined seven witnesses, all of them official: two who witnessed the recovery, one who proved the daily diary entry, the Moharrar with whom the property was deposited, the Constable who carried the samples, the Inspector who proved the FIR, and the investigating officer. The accused denied the case in its entirety under Section 313 and led no defence evidence.
The Judicial Magistrate First Class, Court No. 1, Paonta Sahib convicted him by judgment of 20 December 2010 and sentenced him on 23 December 2010, holding that the statements of the official witnesses corroborated each other, that the incident had taken place in a lonely place where it was not possible to join any independent witness, that nothing in cross-examination showed the witnesses were deposing falsely or had a motive to do so, and that the report of analysis showed the bottles contained illicit liquor. The Sessions Judge, Sirmaur District at Nahan, concurred and dismissed the appeal on 12 July 2013, adding that the statements of official witnesses could not be rejected merely because no independent witness was associated.
The gap between what was recovered and what was proved
Mr Bimal Gupta, senior advocate, made two points that between them dismantled the case. The first was that the prosecution version was highly improbable, because the police had no means to procure 50 bottles in which to measure the liquid in a jungle. The second was arithmetical: two bottles were sent to the laboratory, and two bottles are within the permissible limit.
That second point works because of what was — and was not — before the trial court. The Court recorded that the witnesses could not identify the bag and the tubes as the ones recovered from the spot, so the identification of the case property in court is suspect. On that it relied on Amandeep Singh v. State of H.P., where this Court held that a conviction cannot be recorded when the case property is not produced before the court. The passage quoted makes the point generally: where no sample of liquor or seal of the seized liquor has been produced and proved in court, and the bottles from which the samples were taken have not been proved either, the trial and appellate courts presume as fact what the witnesses stated, without considering that facts were to be proved from documents which admittedly existed but were not produced. 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 where the fact is established by a written register and certificate which is not produced. “Merely saying that liquor was seized is insufficient without establishing its quantity and safekeeping.”
The Supreme Court's decision in Pawan Kumar v. State of H.P. was relied on to the same effect in a forest case, where the seized wood and vehicle were not produced and only one sample was, and the accused could not have been convicted.
What the permissible limit is
The Court set out the schedule of retail quantities under the Punjab Excise Act, 1914. For foreign spirit the limit is two bottles of 750 ml each; for beer, twelve bottles of 650 ml; for cider, six quart bottles; for country liquor, two bottles of 750 ml each; for country fermented liquor, six quart bottles; for bhang, 100 grams; for rectified spirit, one pint of 375 ml; for denatured spirit, one bottle of 650 ml. A proviso allows a person, for bona fide consumption by himself, his family or his guests, to purchase, transport and possess up to twelve 750 ml bottles of Indian-made foreign spirit and 36 bottles of beer on a permit in Form L-50, with a fee of fifty rupees, and a note fixes the possession limit for one family in separate premises at six bottles of IMFS and 24 bottles of beer at one time.
The conclusion the Court drew is the one the defence had put: a person can possess two bottles, and the two sample bottles are what the record actually establishes.
Illicit origin was never proved
The second and independent ground is that the liquor was never shown to be illicit at all. The Court quoted a passage from an earlier judgment on the burden in such cases, including an observation on how enforcement resources are spent: “In fact, I consider it an utter waste of time for the enforcement staff, the investigating agency and the judicial courts in launching proceedings for recovery of liquor not exceeding one bottle. It would be better if the enforcement staff concentrated on illicit distillation, or the sale of illicit liquor, or its possession in large quantities.” The passage goes on to hold that the burden lies entirely on the prosecution to establish that the liquor recovered is of illicit origin as against spirits manufactured by any authorised distillery in this country or any other distillery whose import is permitted.
The position was reiterated in Ram Singh v. State of Haryana. There a bladder of liquor was poured into fourteen bottles and the Chemical Examiner reported a composition different from that manufactured in the distilleries of Haryana in respect of certain ingredients. That was still held insufficient: there was no evidence that in Haryana only liquor of the composition manufactured in Haryana distilleries is sold, and in the absence of such evidence the possibility that the seized liquor was manufactured outside Haryana could not be ruled out, so it could not be said to be illicit.
Here the report did not even go that far. Proviso 3(iii) to Section 61(1)(a) provides that in the case of country liquor manufactured otherwise than in a licensed distillery the imprisonment shall not be less than six months — so the burden is on the prosecution to prove that the liquor was manufactured otherwise than in a licensed distillery. There was no evidence of that fact. The report of the chemical examiner does not say that the constitution of the liquor found in the accused's possession was different from liquor manufactured in a licensed distillery. The liquor was therefore not proved to be illicit, and the prosecution version that the accused was found in possession of illicit liquor was not proved.
Two defects that compound each other
It is worth separating the two findings, because either alone would have been enough and together they leave nothing of the case. The first is about quantity: what the record proves is the two sample bottles, because the tubes said to have held the other forty-eight were never produced or identified in court, and two bottles are within the permissible limit. The second is about character: even those two bottles were never shown to be illicit, because the only scientific document on the file records a strength and nothing about origin.
The nineteen-year interval between the recovery and the acquittal is the part of this case that no finding addresses. The recovery was in April 2007; the conviction came in December 2010, the appellate dismissal in July 2013, and the revision was reserved on 1 October 2026 and decided on 14 October 2026. For most of that period the man was carrying a conviction under an excise statute for a quantity of liquor that, on the material the prosecution itself produced, he was entitled to possess.
The order
The prosecution had not proved its case beyond reasonable doubt. The trial court erred in convicting and sentencing, and the appellate court erred in upholding. The revision was allowed, the judgment of conviction of 20 December 2010 and order of sentence of 23 December 2010 as affirmed on 12 July 2013 were set aside, and the petitioner was acquitted of the charge framed against him. Any fine deposited is to be refunded and the bail bonds stand discharged.
In terms of Section 437-A of the Code of Criminal Procedure, now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, he was directed to furnish fresh bail bonds of ₹25,000 with one surety in the like amount within four weeks, effective for six months, with the stipulation that if a special leave petition is filed against the judgment, or leave is granted, he will appear before the Supreme Court on receiving notice. A copy of the judgment and the records of the courts below were directed to be transmitted forthwith. Mr Pawan Kumar Nadda, Additional Advocate General, appeared for the State.