Himachal Pradesh High Court
Sanjay Kumar @ Sonu &Anr vs State Of Himachal Pradesh on 30 December, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:16483
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal Nos. 137 and 293 of 2021
Reserved on 13.12.2024
Date of Decision: 30.12.2024
1. Cr. Appeal Nos. 137 of 2021
Sanjay Kumar @ Sonu &Anr.
…Appellants
Versus
State of Himachal Pradesh
…Respondent
2. Cr. Appeal No. 293 of 2021
State of Himachal Pradesh
…Appellant
Versus
Pradeep Kumar @ Goga
…Respondent
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
Cr. Appeal No. 137 of 2021
For the appellants Mr. Rajiv Rai, Advocate.
For the respondent/State Ms. Seema Sharma, Deputy
Advocate General
Cr. Appeal No. 293 of 2021
For the appellant/State Ms. Seema Sharma, Deputy
Advocate General.
For the respondent Mr. Ajay Kumar Dhiman, Advocate
____________
Whether reporters of the local papers may be allowed to see the judgment? Yes
2 2024:HHC:16483
Rakesh Kainthla, Judge
The present appeals are directed against the judgment
and order dated 16.06.2021, passed by learned Special Judge,
Ghumarwin, District Bilaspur, H.P. (learned Trial Court), vide
which the appellants, namely, Sanjay Kumar @ Sonu and Jasmer
Singh (accused before the learned Trial Court), were convicted of
the commission of an offence punishable under Section 20
(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (in short ‘NDPS Act’) and the respondent Pradeep @ Goga
(accused before the learned Trial Court) was acquitted of the
commission of an offence punishable under Section 20(b)(ii) (C)
of NDPS Act. Accused Sanjay Kumar @ Sonu and Jasmer Singh
were sentenced to undergo rigorous imprisonment for ten (10)
years each, and they were directed to pay a fine of ₹1,00,000/-
each for the commission of an offence punishable under Section
20(b)(ii) (C) of NDPS Act and in default of payment of the fine,
they were directed to undergo further rigorous imprisonment for
one year. (The parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience).
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2. Briefly stated, the facts giving rise to the present
appeals are that the police presented a challan against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 20 and 29 of the NDPS
Act. It was asserted that SI/SHO Yog Raj (PW-14), HC Bhag
Singh (PW-3), Constable Krishan Baldev (PW-4), HHG
Inder Pal and HHG Banta were present at Swarghat, near
B.D.O. Office in an official vehicle bearing registration No.
HP69-A-0130, which was being driven by HHG Sanjeev
Kumar. They were checking the vehicles moving on the road.
Tehsildar Jaspal (PW-2) and Raj Pal (PW-1) were going
towards Swarghat at 10:15 a.m. They stopped their car and
started talking to SI/SHO Yog Raj (PW-14). A car bearing
registration No.HR-10L-8800 came from Bilaspur, H.P.,
which was signalled to stop. The driver revealed his name as
Sanjay @ Sonu, and a person sitting beside him revealed his
name as Jasmer Singh. They got frightened after seeing the
police. The police became suspicious that they might be
carrying some contraband with them. A search of the car
was conducted in the presence of Jaspal Singh (PW-2) and
Raj Pal (PW-1). SI/SHO Yog Raj found during the search that
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the plastic cover/lids of the gear lever and hand brake fitted
in the car were not in their position. He lifted the plastic
lids/cover and recovered five (5) packets (Ext. P-5 to P-9)
wrapped with Khaki tape. SI/SHO Yog Raj (PW-14) removed
the Khaki tape and found black sticks wrapped in
transparent polythene. He checked the sticks and found
them to be Charas (cannabis). He put all the sticks in a
single polythene packet (Ex. P-9) and weighed the sticks on
an electronic scale. The total weight of cannabis was found
to be 1 kg 394 grams. The weight of the Khaki tape and the
remaining four (4) transparent polythene packets were
found to be 35 grams. The cannabis in the transparent
packets was put in a cloth parcel. The remaining polythene
packets and Khaki tape were put in a separate cloth parcel.
Both the cloth parcels were sealed with six seal impressions
of seal ‘H’ each. The sample seal (Ext.PW-1/D) was taken on
a separate piece of cloth. NCB form (Ext.PW-2/A) was filled
in triplicate, and a seal impression was put on the form. The
seal was handed over to Tehsildar Jaspal Singh (PW-2)
after its use. Accused Sanjay Kumar produced
RC (Ext.PR-1), Driving licence (Ext.PR-2), Insurance
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certificate (Ext. PR-3), and keys of the car and the car. The
documents of the car, car and the parcels were seized vide
memo (Ext.PW-1/A). SI/SHO Yog Raj (PW-14) prepared a
rukka (Ext.PW-14/A) and handed it over to HC Bhag Singh
(PW-3) with a direction to carry it to Police Station
Swarghat, where F.I.R. (Ext.PW-10/A) was registered.
SI/SHO Yog Raj (PW-14) conducted the investigation. He
prepared the site plan (Ext.PW14/B) and recorded the
statements of the witnesses as per their version.
Photographs (Exts.PN-1 to PN-24) of the proceedings were
taken. SI/SHO Yog Raj arrested the accused vide memos
(Ext.PW1/B and Ext.PW-1/C). He handed over the case
property to HC Ram Pal (PW-5) at the Police Station. HC
Ram Pal (PW-5) made an entry in register No. 19 (Ext.
PW5/A and Ext.PW-5/B) and deposited the case property in
Malkhana. He handed over the case property to MHC
Naginder Singh (PW-9), the regular MHC. MHC Naginder
Singh (PW-9) handed over the parcels to SI/SHO Yog Raj on
12.09.2016 to get the inventory certified. SI/SHO Yog Raj
produced the case property and an application for certifying
the correctness of the inventory before the learned Chief
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Judicial Magistrate, Bilaspur H.P., who assigned the
application to learned Judicial Magistrate First Class,
Bilaspur, H.P. Two samples of twenty-five (25) grams each
were drawn after making the cannabis sticks homogeneous.
Each sample was packed in two separate cloth parcels. The
thin transparent wrappers were removed from the cannabis,
and their weight was found to be twenty-two (22) grams.
These wrappers were packed in a separate cloth parcel. Each
parcel was sealed with a seal impression of JMIC-Bilaspur
(H.P). The photographs of the proceedings (Ext.PK-1 to
Ext.PK-16) were taken. Learned Judicial Magistrate First
Class passed an order and certified the inventory (Ext.PW-
11/A) by issuing a certificate (Ext.PW-11/B). Case property
was deposited with MHC Naginder Singh (PW-9), who
entered it at Sl. No. 29 of Malkhana register and kept the
case property in Malkhana. He handed over the bulk parcel
containing 1.322 kilograms of cannabis and one parcel
containing 25 grams of cannabis, sample seal ‘H’, seal
impression of JMIC-Bilaspur (H.P.),NCB -I form, copy of
the F.I.R. and copy of the order of the Court to Constable
Kirshan Kumar (PW-4) with a direction to carry them to FSL
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Junnga vide RC No. 56/16 ( Ext.PW-9/B). Constable Krishan
Kumar (PW-4) deposited all the articles in a safe condition
at FSL Junga and handed over the receipt to MHC Naginder
Singh (PW-9) on his return. SI/SHO Yog Raj (PW-14)
prepared the Special Report (Ext.PW-7/A) and handed it
over to Dy.S.P. Baldev Dutt on 13.09.2016. Dy.S.P. Baldev
Dutt made an endorsement on the Special Report and
handed it over to Kuldeep Singh (PW7), who made an entry
in the Special Report register (Ext.PW-7/A) and retained the
Special Report on record. SI/SHO Yog Raj (PW-14)
interrogated accused Jasmer Singh, w ho disclosed that the
mobile phone recovered from him during the personal
search, did not belong to him but to Pradeep @ Gogga, who
had got down at Sunder Nagar and left his mobile phone in
the vehicle. The mobile phone was put in a cloth parcel,
which was sealed with four impressions of seal ‘U’. The
sample seal (Ext.PW-3/A) was taken on a separate piece of
cloth. The mobile phone was seized vide memo
(Ext.PW-3/B). It was found during the investigation that all
the accused were together. They had purchased the charas
together and had visited Fun and Food Corner at Panarsa to
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take the food. An application (Ext.PW-14/J) was filed to
obtain the billing address, call detail record, customer
application form and tower location. Pradeep @ Goga was
already arrested in some other case. His custody was
transferred. He pointed out the hotel where he had taken
the food. He identified Vikas Kumar (PW-8) and Trilok
Chand (PW-6). They also identified the accused. A memo
(Ext.PW-16/A) was prepared, and a photograph
(Ext.PW-18/A) was taken. The statements of the remaining
witnesses were recorded as per their version. After the
analysis, the result of the analysis (Ext.PW-9/A) was issued,
in which it was shown that the sticks analysed in the
laboratory were charas, which contained 26.54% and
25.65% w/w resin in it. The statements of the remaining
witnesses were recorded as per their version, and after
the completion of the investigation, the challan was
prepared and presented before the learned Trial Court.
3. The learned Trial Court charged the accused with
the commission of offences punishable under Sections 20
and 29 of the NDPS Act, to which the accused pleaded not
guilty and claimed to be tried.
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4. The prosecution examined 22 witnesses to prove
its case.Rajpal (PW-1) accompanied Tehsildar Jaspal Singh
(PW-2). Both of them witnessed the recovery from the
vehicle. HC Bhag Singh (PW-3) is the official witness to the
recovery. Constable Krishan Kumar (PW-4) took
photographs of the inventory proceedings. He also carried
the case property to FSL Junga. HC Ram Pal (PW-5) was
holding the charge of MHC on 11.09.2016, with whom the
case property was initially deposited. Trilok Chand (PW-6)
was working as a cashier at Fun & Food Corner Panarsa. He
did not support the prosecution case. Kuldeep Singh (PW-7)
was posted as a Reader to Dy.S.P., to whom the Special
Report was handed over. Vikas Kumar (PW-8) is the owner
of Fun and Food Corner Panarsa, who did not support the
prosecution case. HC Naginder Singh (PW-9) was working
as MHC,with whom the case property was deposited. ASI
Harish Chander (PW-10) signed the F.I.R. Monika Sombal
(PW-11), Judicial Magistrate, First Class, Bilaspur, H.P.
certified the correctness of the inventory. Chander Prakash
(PW-12) is the witness to the sale of the vehicle. Suresh
Kumar (PW-13) is the owner of the vehicle. Inspector Yog
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Raj (PW-14) conducted the initial investigation and effected
the recovery. Harish Kumar (PW-15) purchased the car and
sold it to the accused, Sanjay Kumar. HHC Raj Kumar
(PW-16) and Jaswinder Singh (PW-17) are the witnesses to
the disclosure made by Pradeep @ Goga. Rajinder Kumar
(PW-18) conducted further investigation of the case. Rajesh
Prashar (PW-19) prepared the supplementary challan.
Devinder Verma (PW-20) issued the call details record. Sajid
Khan (PW-21) did not support the prosecution case. Sohan
Singh (PW-22) is the owner of the car bazaar to whom the
car was initially sold.
5. The accused, in their statements recorded under
Section 313 of Cr.P.C.,denied the prosecution case in its
entirety. They stated that the witnesses deposed against
them falsely at the instance of the Investigating Officer.
Accused Pradeep @ Goga stated that he never accompanied
Sanjay Kumar @ Sonu and Jasmer Singh to Himachal
Pradesh. He was falsely implicated. Jasmer Singh stated
that he got down at Swarghat on 10.09.2016 at 8:00 p.m. He
found that a dispute was taking place between the police and
some residents of Haryana. The police asked him to which
11 2024:HHC:16483
place he belonged, and he replied that he belonged to
Haryana.The police took him to the Police Station and made
a false case against him. Some photographs were taken on
the roadside, and some were taken inside the Police Station.
No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the testimonies
of the prosecution witnesses corroborated each other.
Tehsildar Jaspal Singh (PW-2) and the independent
witnesses also supported the prosecution case. Minor
contradictions in the testimonies of official witnesses were
not sufficient to discard them. Defence taken by the accused
that they were falsely implicated was not probable. The
integrity of the case property was duly established.
However, the evidence against Pradeep @ Goga was not
sufficient. The owner and cashier of the Hotel Fun and Food
Corner did not support the prosecution case. The call detail
record was also not sufficient to infer the culpability of
accused Pardeep @ Goga. Therefore, the accused, Sanjay
Kumar and Jasmer Singh were convicted of the commission
of an offence punishable under Section 20(b)(ii)(c) of the
NDPS Act and sentenced as aforesaid, whereas accused
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Pradeep @ Goga was acquitted of the commission of an
offence punishable under Section 20(b)(ii)(c) of the NDPS
Act.
7. Being aggrieved from the judgment and order
passed by the learned trial Court, two separate appeals have
been preferred. It has been asserted in the appeal filed by
accused Sanjay Kumar and Jasmer Singh bearing Cr. Appeal
137 of 2021, that the learned Appellate Court misappreciated
and misapplied the provisions of the NDPS Act. The
allegations made against the accused, even if accepted as
correct, do not constitute any offence punishable under
Section 20(b)(ii)(c) of the NDPS Act. No charge should have
been framed against the accused, and they should have been
discharged at the outset. The findings recorded by the
learned Trial Court are based on misreading and
mis-appreciation of the evidence. The prosecution relied
upon the testimonies of highly interested witnesses, whose
testimonies did not inspire confidence. They suffered from
inherent contradictions and major improvements. There
was non-compliance of Sections 41, 42, 50 and 57 of the
NDPS Act by the Investigating Officer. Jaspal Singh (PW-2)
13 2024:HHC:16483
stated that police had told him that they had suspicion
regarding the contraband being carried in the vehicle. In
such circumstances, compliance with Sections 42 and 50 of
the NDPS Act was mandatory. The provisions of Sections 42
and 50 of the NDPS Act were not complied with. The learned
Trial Court had not dealt with the written arguments
submitted by the accused. Constable Krishan Baldev, HHG
Inder Pal, HHG Banta Singh and HHG Sanjeev Kumar were
not examined by the prosecution. This created a serious dent
in the prosecution case. The testimonies of Rajpal (PW-1)
and Jaspal (PW-2) contradicted each other on material
points. There was no electric point on the spot. The
photographs also show that proceedings were conducted at a
different spot and not at the place where the accused were
stated to be apprehended. The Investigating Officer was
unable to mention who had taken the photographs. The
witnesses cannot be said to be of sterling quality. SI/SHO
Yog Raj (PW-14) stated that personal search of the accused
was conducted after their arrest upon reaching the Police
Station; hence, it was necessary to comply with the
requirement of Section 50 of the NDPS Act. The tower
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location of the mobile of accused was not proved. The
original seals were not produced before the Court, and the
link evidence was missing. Therefore, it was prayed that the
present appeal be allowed and the judgment and order
passed by the learned Trial Court be set aside.
8. In the appeal bearing Cr. Appeal No. 293 of 2021,
preferred by the State, it was asserted that the learned Trial
Court erred in acquitting accused Pradeep @ Goga. Learned
Trial Court set unrealistic standards to evaluate the direct
and cogent prosecution evidence. The findings of the
learned Trial Court regarding the acquittal are based on
surmises, conjectures and hypotheses. Tirlok Chand
(PW-6), cashier of Fun and Food Corner Panarsa and Vikas
Kumar (PW-8) supported the prosecution case regarding the
presence of accused Pradeep @ Goga. Jasvinder Singh
(PW-17) had duly proved the identification made by Pradeep
@ Goga. These facts were ignored by the learned Trial Court;
therefore, it was prayed that the present appeal be allowed
and the judgment and order acquitting the accused passed
by the learned Trial Court be set aside.
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9. We have heard Mr Rajiv Rai, learned counsel for
the appellant/accused, Sanjay Kumar and Jasmer Singh in
appeal No. 137 of 2021, Ms Seema Sharma, learned Deputy
Advocate General in Criminal Appeal No. 137 of 2021 for the
respondent/State and in Criminal Appeal No. 293 of 2021 for
the appellant/State and Mr Ajay Kumar Dhiman, learned
counsel for the respondent- Pradeep Kumar @ Goga in
Criminal Appeal No.293 of 2021.
10. Mr Rajiv Rai, learned counsel for the
appellant/accused in appeal No. 137 of 2021, submitted that
the learned Trial Court erred in convicting and sentencing
the accused, Sanjay Kumar and Jasmer Singh. The
prosecution version that the mobile phone was found during
the personal search was not proved. The mobile phone was
not deposited on the date of the incident but on 15.09.2016.
The witness, Raj Pal (PW-5),did not support the prosecution
case, and Jaspal Singh (PW-2) stated that he had signed the
documents at the Police Station. These statements falsify
the prosecution case. The testimonies of official witnesses
do not inspire confidence. SI/SHO Yog Raj (PW-14) admitted
that he suspected the possession of some contraband, and it
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was necessary to comply with the requirements of Section
42 of the NDPS Act. The personal search of the accused was
also conducted, and it was necessary to comply with Section
50 of the NDPS Act. The provisions of Sections 42 and 50 of
the NDPS Act are mandatory, and their non-compliance is
fatal to the prosecution case. The integrity of the case
property was not established. He prayed that the present
appeal be allowed and the judgment and order passed by the
learned Trial Court be set aside.
11. Ms Seema Sharma, learned Deputy Advocate
General for the State, supported the judgment and order
passed by the learned Trial Court convicting the accused,
Sanjay Kumar and Jasmer Singh. She submitted that the
learned Trial Court had rightly held that the possession of
charas was proved beyond reasonable doubt. The integrity of
the case property was duly established, and there is nothing
on record to doubt the prosecution case. The
term’contraband’does not mean narcotic drugs. The
prosecution evidence shows that the recovery was effected
without any previous information; therefore, there was no
requirement of compliance with Sections 42 and 50 of the
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NDPS Act. Learned Trial Court erred in acquitting the
accused Pradeep @ Goga. There was sufficient evidence to
connect him with the commission of crime. He had
identified the place where he and other co-accused had
taken the meal. His mobile phone was found in the vehicle.
These circumstances show that he had accompanied the
co-accused. Learned Trial Court failed to consider these
circumstances; therefore, she prayed that the appeal filed by
Sanjay Kumar and Jasmer Singh be dismissed and the appeal
filed by State against accused Pradeep @ Goga be allowed
and he be convicted for the commission of an offence
punishable under Section 29 read with Section 20(b)(ii)(c)
of the NDPS Act.
12. Mr Ajay Kumar Dhiman, learned counsel for
respondent Pradeep @ Goga in Criminal Appeal No. 293 of
2021, supported the judgment passed by the learned Trial
Court acquitting accused Pradeep @ Goga. He submitted
that the prosecution evidence, if accepted to be correct, only
establishes that all accused were together at Panarsa;
however, that is not sufficient to impute the knowledge of
transportation of the Charas to Pradeep @ Goga. The
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recovery of the mobile phone is highly suspicious. There is
no other evidence to connect accused Pradeep @ Goga with
the commission of the crime. The statement made by
Pradeep @ Goga did not lead to the discovery of any fact,
and the same is not admissible under Section 27 of the
Indian Evidence Act. Therefore, he prayed that the present
appeal be dismissed.
13. We have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
Criminal Appeal No. 293 of 2021 (State of H.P. Vs. Pradeep @
Goga)
14. The present appeal has been filed against a
judgment of acquittal. It was laid down by the Hon’ble
Supreme Court in Mallappa v. State of Karnataka, (2024) 3
SCC 544: 2024 SCC OnLine SC 130 that while deciding an
appeal against acquittal, the High Court should see whether
the evidence was properly appreciated on record or not;
second whether the finding of the Court is illegal or affected
by the error of law or fact and thirdly; whether the view
taken by the Trial Court was a possible view, which could
19 2024:HHC:16483
have been taken based on the material on record. The Court
will not lightly interfere with the judgment of acquittal. It
was observed:
“25. We may first discuss the position of law
regarding the scope of intervention in a criminal
appeal. For that is the foundation of this challenge. It
is the cardinal principle of criminal jurisprudence
that there is a presumption of innocence in favour of
the accused unless proven guilty. The presumption
continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal.
The presumption of innocence gets concretised when
the case ends in acquittal. It is so because once the
trial court, on appreciation of the evidence on record,
finds that the accused was not guilty, the
presumption gets strengthened, and a higher
threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal,
and there is no quarrel about that. It is also beyond
doubt that in the exercise of appellate powers, there
is no inhibition on the High Court to reappreciate or
re-visit the evidence on record. However, the power
of the High Court to reappreciate the evidence is a
qualified power, especially when the order under
challenge is of acquittal. The first and foremost
question to be asked is whether the trial court
thoroughly appreciated the evidence on record and
gave due consideration to all material pieces of
evidence. The second point for consideration is
whether the finding of the trial court is illegal or
affected by an error of law or fact. If not, the third
consideration is whether the view taken by the trial
court is a fairly possible view. A decision of acquittal
is not meant to be reversed on a mere difference of
opinion. What is required is an illegality or perversity.
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27. It may be noted that the possibility of two views in
a criminal case is not an extraordinary phenomenon.
The “two-views theory” has been judicially
recognised by the courts, and it comes into play when
the appreciation of evidence results in two equally
plausible views. However, the controversy is to be
resolved in favour of the accused. For, the very
existence of an equally plausible view in favour of the
innocence of the accused is in itself a reasonable
doubt in the case of the prosecution. Moreover, it
reinforces the presumption of innocence. Therefore,
when two views are possible, following the one in
favour of the innocence of the accused is the safest
course of action. Furthermore, it is also settled that if
the view of the trial court, in a case of acquittal, is a
plausible view, it is not open for the High Court to
convict the accused by reappreciating the evidence. If
such a course is permissible, it would make it
practically impossible to settle the rights and
liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]:
(SCC pp. 236-37, para 13)
“13. Considering the reasons given by the trial
court and on an appraisal of the evidence, in our
considered view, the view taken by the trial court
was a possible one. Thus, the High Court should
not have interfered with the judgment of acquittal.
This Court in Jagan M. Seshadri v. State of
T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC
639: 2003 SCC (L&S) 1494] has laid down that as the
appreciation of evidence made by the trial court
while recording the acquittal is a reasonable view,
it is not permissible to interfere in appeal. The duty
of the High Court while reversing the acquittal has
been dealt with by this Court, thus: (SCC p. 643,
para 9)
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‘9. … We are constrained to observe that
the High Court was dealing with an appeal
against acquittal. It was required to deal with
various grounds on which acquittal had been
based and to dispel those grounds. It has not
done so. Salutary principles while dealing
with appeal against acquittal have been
overlooked by the High Court. If the
appreciation of evidence by the trial court did
not suffer from any flaw, as indeed none has
been pointed out in the impugned judgment,
the order of acquittal could not have been set
aside. The view taken by the learned trial
court was a reasonable view, and even if by
any stretch of the imagination, it could be
said that another view was possible, that was
not a ground sound enough to set aside an
order of acquittal.'”
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P.,
(2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon’ble
Supreme Court analysed the relevant decisions and
summarised the approach of the appellate court while
deciding an appeal from the order of acquittal. It
observed thus: (SCC p. 297, para 7)
“7. It is well settled that:
7.1. While dealing with an appeal against
acquittal, the reasons which had weighed with
the trial court in acquitting the accused must be
dealt with in case the appellate court is of the
view that the acquittal rendered by the trial
court deserves to be upturned (see Vijay Mohan
Singh v. State of Karnataka [Vijay Mohan
Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166
: (2021) 1 SCC (Cri) 395] ).
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7.2. With an order of acquittal by the trial court,
the normal presumption of innocence in a
criminal matter gets reinforced
(see Atley v. State of U.P. [Atley v. State of U.P.,
1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the
evidence on record, the appellate court
must be extremely slow in interfering with
the appeal against acquittal
(see Sambasivan v. State of
Kerala [Sambasivan v. State of Kerala, (1998)
5 SCC 412: 1998 SCC (Cri) 1320]).”
15. This position was reiterated in Ramesh v. State of
Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581,
wherein it was observed at page 175:
“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court
in Chandrappa v. State of
Karnataka [Chandrappa v. State of Karnataka, (2007) 4
SCC 415 : (2007) 2 SCC (Cri) 325], regarding the power
of the appellate court while dealing with an appeal
against a judgment of acquittal. The principles read
thus: (SCC p. 432, para 42)
“42. … (1) An appellate court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on the exercise
of such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and law.
(3) Various expressions, such as “substantial and
compelling reasons”, “good and sufficient
23 2024:HHC:16483grounds”, “very strong circumstances”,
“distorted conclusions”, “glaring mistakes”, etc.,
are not intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is a double
presumption in favour of the accused. Firstly, the
presumption of innocence is available 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.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court.”
21. In Rajendra Prasad v. State of Bihar [Rajendra
Prasad v. State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri)
308], a three-judge Bench of this Court pointed out
that it would be essential for the High Court, in an
appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the
reasons of the trial court in order to be able to reach a
contrary conclusion of guilt of the accused. It was
further observed that, in an appeal against acquittal,
it would not be legally sufficient for the High Court to
take a contrary view about the credibility of
witnesses, and it is absolutely imperative that the
High Court convincingly finds it well-nigh
24 2024:HHC:16483
impossible for the trial court to reject their
testimony. This was identified as the quintessence of
the jurisprudential aspect of criminal justice.”
16. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
17. The prosecution has relied upon the recovery of
the mobile phone from the vehicle bearing registration
number HR10L-8800. This mobile phone is stated to belong
to the accused, Pradeep @ Goga. SI/SHO Yog Raj (PW-14)
stated that he interrogated the accused, Jasmer Singh, who
disclosed that the mobile phone recovered from him during
his personal search did not belong to him but to another
accused, Pradeep @ Goga, who was with them. This
statement is inadmissible. It was laid down by the Hon’ble
Supreme Court in Dipakbhai Jagdishchandra Patel v. State of
Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC
OnLine SC 588 that a statement made by co-accused during
the investigation is hit by Section 162 of Cr.P.C. and cannot
be used as a piece of evidence. Further, the confession made
by the co-accused is inadmissible because of Section 25 of
the Indian Evidence Act. It was observed at page 568: –
25 2024:HHC:16483
44. Such a person, viz., the person who is named in
the FIR, and therefore, the accused in the eye of the
law, can indeed be questioned, and the statement is
taken by the police officer. A confession that is made
to a police officer would be inadmissible, having
regard to Section 25 of the Evidence Act. A
confession, which is vitiated under Section 24 of the
Evidence Act, would also be inadmissible. A
confession, unless it fulfils the test laid down
in Pakala Narayana Swami [Pakala Narayana
Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-
39) 66 IA 66: AIR 1939 PC 47] and as accepted by this
Court, may still be used as an admission under
Section 21 of the Evidence Act. This, however, is
subject to the bar of admissibility of a statement
under Section 161 CrPC. Therefore, even if a
statement contains admission, the statement being
one under Section 161, it would immediately attract
the bar under Section 162 CrPC.”
18. Similarly, it was held in Surinder Kumar Khanna
vs Intelligence Officer Directorate of Revenue Intelligence 2018
(8) SCC 271 that a confession made by a co-accused cannot
be taken as a substantive piece of evidence against another
co-accused and can only be utilised to lend assurance to the
other evidence. The Hon’ble Supreme Court subsequently
held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1
that a confession made to the police officer during the
investigation is hit by Section 25 of the Indian Evidence Act
and is not saved by the provisions of Section 67 of the NDPS
26 2024:HHC:16483
Act. Therefore, no advantage can be derived by the
petitioner from the confessional statement made by the co-
accused.
19. The prosecution relied upon call detail records
(Ext.PW20/A), customer application form (Ext.PW-20/B)
and identity proof (Ext.PW20/C) to show that the mobile
number was registered in the name of accused Pradeep @
Goga; however, there is no evidence that the mobile number
mentioned in the customer application form and call detail
record was the same, which was recovered from the accused,
Jasmer Singh. SI/SHO Yograj (PW-14) stated in his
examination-in-chief that the dual sim mobile phone was
recovered from Jasmer Singh,which belonged to Pradeep @
Goga. He has not given the details of the SIM inserted in the
mobile. Further, there is no memo of the personal search of
the accused, Jasmer Singh, to show that a mobile phone
bearing a SIM number was recovered from him. The memo
of the search (Ext.PW-1/A) does not mention the details of
the mobile phone or the SIM in it. Even the seizure memo of
the mobile phone (Ext.PW3/B) does not mention any SIM
number. It merely mentions that the mobile phone, which
27 2024:HHC:16483
was disclosed to be belonging to Pradeep @ Goga and was
already with the police, was seized by the police. The
seizure memo (Ext.PW-3/B) was witnessed by HC Bhag
Singh (PW-3) and Constable Pawan Kumar.
20. HC Bhag Singh (PW-3) did not mention that the
personal search of accused Jasmer Singh was conducted in
his presence, and the mobile phone was found in his
possession. He has not mentioned any SIM number. He only
stated that he and Pawan Kumar were associated with the
Investigating Officer of the case on 15.09.2016, and accused
Jasmer Singh disclosed that the mobile phone handed over
by him at the Police Station during the personal search
belonged to Pradeep @ Goga. The mobile phone was taken
into possession after putting it in a cloth parcel. Pawan
Kumar was not examined as a witness; therefore, there is no
evidence that the mobile phone had the same SIM, which
was mentioned in the customer application form and the
call detail records. Thus, the recovery of the mobile phone is
not sufficient to connect Pradeep @ Goga with the
commission of crime.
28 2024:HHC:16483
21. The prosecution has also relied upon the
statements made by Trilok Chand (PW-6) and Vikas Kumar
(PW-8) to establish that all the accused went together to
Fun and Food Corner on 10.09.2016. Even if this evidence is
accepted as correct, it is not sufficient to connect the
accused Pradeep @ Goga with the abetment of possession of
the charas. The charas was recovered on 11.09.2016. There is
no evidence that all the accused were in possession of the
charas or they had purchased the charas on 10.09.2016;
hence,the mere association of Pradeep @ Goga with Sanjay
Kumar @ Sonu and Jasmer Singh on 10.09.2016 cannot lead
to an inference of abetment of possession of charas on
11.09.2016.
22. In any case, the evidence led by the prosecution
to establish the presence of the accused on 10.09.2016 at Fun
and Food Corner is not satisfactory. Vikas Kumar (PW-8)
stated that he did not know whether the accused were the
same persons who had visited his Dhaba. He could not
identify the accused persons. He was permitted to be cross-
examined. He stated in his cross-examination by the
learned Public Prosecutor that he did not know that one Car
29 2024:HHC:16483
having a Haryana registration number came into the
premises of his Dhaba on 10.09.2016. He volunteered to say
that he was also running a Dhaba at Patlikuhal and he might
be there on that day. He was not aware that three persons
had visited his Dhaba. He denied that he had seen those
three persons. He denied that one person was being called
Goga. He denied that the police had brought one of them to
his Dhaba during the investigation. He denied that Sanjay
Kumar was the person who was brought by the police. He
denied his previous statement recorded by the police.
23. It is apparent from his testimony that he has not
supported the prosecution case that three persons,
including Sanjay Kumar, had visited his Dhaba.
24. Trilok Chand (PW-6) stated that he was present
at the cash counter of the Dhaba, namely, Fun and Food
Corner Panarsa. On 10.09.2016, one car HR number stopped
in the parking of Dhaba between 11:30 a.m. and 12:00 noon.
Three persons came out of the vehicle and asked for a room.
Room was shown to them, but they did not hire it. They had
coffee in the Dhaba. They asked for lunch at 5-5:30 p.m. and
30 2024:HHC:16483
had took food in the Dhaba. He could not say that the
persons present in the Court were the same. They were
calling the person who had paid the bill as Goga. The police
visited the Dhaba on 16.09.2016 and brought one person
whose name was found to be Sanjay. He told the police that
Sanjay was amongst them, but Sanjay was not present in the
Court. He was permitted to be cross-examined. He stated in
cross-examination by the learned Public Prosecutor that he
could not say that Sanjay and the other accused, Pradeep @
Goga and Jasmer Singh, had visited the Dhaba. He stated in
his cross-examination by the defence that he could not say
how many persons had visited the Dhaba the day before the
deposition and the registration number of the vehicle in
which the people had visited the Dhaba.
25. The statement of this witness also does not assist
the prosecution case. He could not identify Sanjay Kumar in
the Court.
26. The prosecution relied upon the identification
made by this witness in the presence of the police; however,
such identification is inadmissible as it is hit by Section 162
31 2024:HHC:16483
of Cr.P.C. It was laid down in Chunthuram v. State of
Chhattisgarh(2020) 10 SCC 733that an identification made in
the police presence is hit by Section 162 of Cr.P.C. and
inadmissible in evidence. It was observed:-
“11. The infirmities in the conduct of the test
identification parade would next bear scrutiny. The
major flaw in the exercise here was the presence of
the police during the exercise. When the
identifications are held in police presence, the
resultant communications are tantamount to
statements made by the identifiers to a police officer
in the course of the investigation, and they fall within
the ban of Section 162 of the Code. (See Ramkishan
Mithanlal Sharma v. State of Bombay [Ramkishan
Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903:
AIR 1955 SC 104: 1955 Cri LJ 196].)”
27. Thus, no reliance can be placed upon the
identification made by him before the police.
28. The prosecution has also relied upon the
identification made by Pradeep Kumar @ Goga of Hotel Fun
and Food Corner. Rajinder Kumar (PW-18) stated that
Pradeep Kumar @ Goga revealed that Hotel Fun and Food
Corner was the same Hotel where he and his two friends,
Sanjay Kumar and Jasmer Singh, had taken their meal and
tea on 10.09.2016. He also identified hotel owner Vikas
Kumar (PW-8) and Cashier Trilok Chand (PW-6); however,
32 2024:HHC:16483
this evidence will not assist the prosecution case. It is an
admitted version that police had visited Hotel Fun and Food
Corner on 16.09.2016 with Sanjay; therefore, the police were
aware of the fact that the food was taken in Hotel Fun &
Food. The fact discovered by the police cannot be re-
discovered by taking recourse to Section 27 of the Indian
Evidence Act. It was laid down by the Hon’ble Supreme
Court in Thimma and Thimma Raju v. State of Mysore, (1970)
2 SCC 105: 1970 SCC (Cri) 320 that where the police had
discovered some fact from other sources, it cannot be re-
discovered at the instance of the accused. It was observed at
page 112:
“10. Reliance on behalf of the prosecution was also
placed on the information given by the appellant,
which led to the discovery of the dead body and other
articles found at the spot. It was contended that the
information received from him related distinctly to
the facts discovered and, therefore, the statement
conveying the information was admissible in
evidence under Section 27 of the Indian Evidence Act.
This information, it was argued, also lends support to
the appellant’s guilt. It appears to us that when PW 4
was suspected of complicity in this offence, he would,
in all probability, have disclosed to the police the
existence of the dead body and the other articles at the
place where they were actually found. Once a fact is
discovered from other sources, there can be no fresh
discovery even if relevant information is extracted from
33 2024:HHC:16483the accused, and courts have to be watchful against the
ingenuity of the investigating officer in this respect so
that the protection afforded by the wholesome provisions
of Sections 25 and 26 of the Indian Evidence Act is not
whittled down by mere manipulation of the record of
case diary. It would, in the circumstances, be
somewhat unsafe to rely on this information for
proving the appellant’s guilt. We are accordingly
disinclined to take into consideration this
statement.” (Emphasis supplied)
29. It was laid down by the Hon’ble Supreme Court in
Vijender v. State of Delhi, (1997) 6 SCC 171: 1997 SCC (Cri) 857
that where the fact was within the knowledge of the police,
it cannot be discovered at the instance of the accused. It was
observed at page 179:
“17. Another elementary statutory breach which we
notice in recording the evidence of the above
witnesses is that of Section 27 of the Evidence Act.
Evidence was led through the above three police
witnesses that, in consequence of information
received from the three appellants on 30-6-1992,
they discovered the place where the dead body of
Khurshid was thrown. As already noticed, the dead
body of Khurshid was recovered on 27-6-1992, and
therefore, the question of discovery of the place
where it was thrown thereafter could not arise. Under
Section 27 of the Evidence Act, if an information
given by the accused leads to the discovery of a fact
which is the direct outcome of such information,
then only it would be evidence, but when the fact has
already been discovered, as in the instant case —
evidence could not be led in respect thereof.”
34 2024:HHC:16483
30. A similar view was taken in Allarakha Habib
Memon Etc. v. State of Gujarat, 2024 SCC OnLine SC 1910,
wherein it was observed:
“41. We find that these so-called confessions are ex-
facie inadmissible in evidence for the simple reason
that the accused persons were presented at the
hospital by the police officers after having been
arrested in the present case. As such, the notings
made by the Medical Officer, Dr. Arvindbhai (PW-2),
in the injury reports of Mohmedfaruk @ Palak and
Amin @ Lalo would be clearly hit by Section 26 of
the Indian Evidence Act, 1872 (hereinafter being
referred to as ‘Evidence Act’). As a consequence, we
are not inclined to accept the said admissions of the
accused as incriminating pieces of evidence relevant
under Section 21 of the Evidence Act. The circumstance
regarding the identification of the place of incident at the
instance of the accused is also inadmissible because the
crime scene was already known to the police, and no
new fact was discovered in pursuance of the disclosure
statements.” (Emphasis supplied)
31. Therefore, the statements made by accused
Pradeep @ Goga pointing out the Hotel where he and other
accused had taken food will be inadmissible under Section
27 of the Indian Evidence Act.
32. Further, no fact was discovered pursuant to the
statement made by the accused, Pradeep @ Goga by
pointing to the Fund and Food Corner.It was laid down by
the Hon’ble Supreme Court in H.P. Admn. v. Om Prakash,
35 2024:HHC:16483
(1972) 1 SCC 249: 1972 SCC (Cri) 88 that pointing out the place
from where the accused had purchased the weapon of
offence does not amount to the fact discovered within the
meaning of Section 27 of the Indian Evidence Act. It was
observed:
“13. Thereafter, on the information furnished by the
accused that he had purchased the weapon from
Ganga Singh, PW 11 and that he would take them to
him, they went to the thari of PW 11, where the
accused pointed him out to them. It is contended that
the information given by the accused that he
purchased the dagger from PW 11, followed by his
leading the police to his thari and pointing him out, is
inadmissible under Section 27 of the Evidence Act. In
our view, there is force in this contention. A fact
discovered within the meaning of Section 27 must
refer to a material fact to which the information
directly relates. In order to render the information
admissible, the fact discovered must be relevant and
must have been such that it constitutes the
information through which the discovery was made.
What is the fact discovered in this case? Not the
dagger, but the dagger hid under the stone, which is
not known to the Police (See Pulukuri
Kotayya v. King-Emperor [AIR 1947 PC 67: 74 IA 65].)
But thereafter, can it be said that the information
furnished by the accused that he purchased the
dagger from PW 11 led to a fact discovered when the
accused took the police to the thari of PW 11 and
pointed him out? A single Bench of the Madras High
Court in Public Prosecutor v. India China Lingiah, [AIR
1954 Mad 433: 1953 MWN 918: 1954 Cri LJ 583] and
in Re Vallingiri, [AIR 1950 Mad 613 : (1950) 1 MLJ 467:
1950 MWN 297] seems to have taken the view that the
36 2024:HHC:16483
information by an accused leading to the discovery of
a witness to whom he had given stolen articles is a
discovery of a fact within the meaning of Section 27.
In Emperor v. Ramanuja Ayyangar, [AIR 1935 Mad 528:
1934 MWN 1479: 36 Cr LJ 1442: 42 MLW 124] a Full
Bench of three Judges by a majority held that the
statement of the accused “I purchased the mattress
from this shop and it was this woman (another
witness) that carried the mattress” as proved by the
witness who visited him with the police was
admissible because the word “fact” is not restricted
to something which can be exhibited as a material
object. This judgment was before the Pulukuri
Kotayya case when, as far as the Presidency of Madras
was concerned, the law laid down by the Full Bench
of that Court, in Re Athappe Goundan, [ILR 1937 Mad
695: AIR 1937 Mad 618] prevailed. It held that where
the accused’s statement connects the fact discovered
with the offence and makes it relevant, even though
the statement amounts to a confession of the
offence, it must be admitted because it is that that
has led directly to the discovery. This view was
overruled by the Privy Council in the Pulukuri Kotayya
case, and this Court had approved the Privy Council
case in Ramkishan Mithanlal Sharma v. State of
Bombay [AIR 1955 SC 104: (1955) 1 SCR 903].
14. In the Full Bench Judgment of Seven Judges
in Sukhan v. Crown [ILR (1929) 10 Lah 283] which was
approved by the Privy Council in Pulukuri Kotayya
case, Shadi Lal, C.J., as he then was speaking for the
majority pointed out that the expression “fact” as
defined by Section 3 of the Evidence Act includes not
only the physical fact which can be perceived by the
senses but also the psychological fact or mental
condition of which any person is conscious and that it
is in the former sense that the word used by the
Legislature refers to a material and not to a mental
fact. It is clear, therefore, that what should be
37 2024:HHC:16483
discovered is the material fact, and the information
that is admissible is that which has caused that
discovery so as to connect the information and the
fact with each other as the “cause and effect”. That
information which does not distinctly connect with
the fact discovered or that portion of the information
which merely explains the material thing discovered
is not admissible under Section 27 and cannot be
proved. As explained by this Court as well as by the
Privy Council, normally, Section 27 is brought into
operation where a person in police custody produces
from some place of concealment some object said to
be connected with the crime of which the informant
is the accused. The concealment of the fact which is
not known to the police is what is discovered by the
information and lends assurance that the
information was true. No witness with whom some
material fact, such as the weapon of murder, stolen
property or other incriminating article is not hidden,
sold or kept and which is unknown to the Police can
be said to be discovered as a consequence of the
information furnished by the accused. These
examples, however, are only by way of illustration
and are not exhaustive. What makes the information
leading to the discovery of the witness admissible is
the discovery from him of the thing sold to him or
hidden or kept with him, which the police did not
know until the information was furnished to them by
the accused. A witness cannot be said to be
discovered if nothing is to be found or recovered from
him as a consequence of the information furnished
by the accused, and the information which disclosed
the identity of the witness will not be admissible. But
even apart from the admissibility of the information
under Section 27, the evidence of the Investigating
Officer and the panchas that the accused had taken
them to PW 11 and pointed him out and as
corroborated by PW 11 himself would be admissible
38 2024:HHC:16483
under Section 8 of the Evidence Act as conduct of the
accused.”
33. Therefore, no advantage can be derived from the
pointing out of the place by accused Pradeep @ Goga.
34. There is no other evidence to connect accused
Pradeep @ Goga with the commission of a crime; therefore,
the learned Trial Court had taken a reasonable view by
acquitting the accused and no interference is required with
the same while deciding the appeal against the acquittal.
Hence, the present appeal fails, and the same is dismissed.
35. In view of the provisions of Section 437-A of the
Code of Criminal Procedure (now substituted by Section 481
of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent
Pradeep @ Goga is directed to furnish bail bonds in the sum
of ₹25,000/- with one surety in the like amount to the
satisfaction of the learned Trial Court 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 respondent/accused
on receipt of notice thereof, shall appear before the Hon’ble
Supreme Court.
39 2024:HHC:16483
Criminal appeal No. 137 of 2021 (Sanjay Kumar @ Sonu
&Another vs State of H.P.
36. Rajpal (PW-1) stated that he went to the temple
of Santoshi Mata, Kulah, on 11.09.2016. When he was
returning from the temple, he met Jaspal (PW-2) in his car
on the way. He (Rajpal) also boarded the car. When they
reached the BDO Office, Swarghat, on the Chandigarh-
Manali National Highway, he found that the police had set
up a Nakka. The police were checking the vehicles.
Tehsildar Jaspal (PW-2) got down from the vehicle to talk to
the police. He remained in the vehicle. He was called by the
police, and when he went near the police, the vehicle of the
accused was already surrounded by the police. The police
searched the vehicle and took out something, but he could
not say what was taken out. The vehicle, which was checked
by the police, was already present on the spot before he had
reached there. He did not remember the registration
number of the vehicle or the details of the occupants of the
vehicle. He also could not identify them. He was permitted
to be cross-examined. He stated in his cross-examination
by the learned Public Prosecutor that two persons were
40 2024:HHC:16483
present in the vehicle. The driver of the vehicle revealed his
name as Sanjay Kumar @ Sonu, a resident of Panipat. The
other person disclosed his name as Jasmer Singh; however,
he could not identify them in the Court. He admitted that
the police checked the vehicle in his presence and in
presence of Tehsildar Jaspal (PW-2). He admitted that five
polythene packets wrapped with blown-coloured (Khakhi)
plastic tape were found after lifting the lid. He admitted that
five transparent polythene packets were found in the
vehicle. He admitted that a candle-shaped black substance
was found in the poly wrappers after opening the packets.
He denied that the material recovered was Charas. He
volunteered to say that the police had informed him so. He
admitted that the contents of all the polythene packets were
put in one packet, and these were weighed with an electronic
scale. He did not remember whether the weight of the
substance was found to be 1 kg 394 grams. He admitted that
the remaining four empty polythene packets were separately
weighed, but he could not say that their weight was found to
be 35 grams. He admitted that the polythene packet
containing the substance was wrapped in a cloth parcel, and
41 2024:HHC:16483
a separate cloth parcel was prepared containing tape and the
remaining polythene packets. He admitted that both parcels
were sealed by the police with wax seals, but he did not
remember that the seal impression was ‘H’ or that six seals
were put on each parcel. He admitted that the police filled
the forms and handed over the seal to Tehsildar-Jaspal
(PW-2). He admitted that he and Tehsildar-Jaspal (PW-2)
signed parcels and cloth bearing the seal impression. He
admitted that the police took the photographs. He identified
the photographs Mark -A1 to Mark A-24 of the proceedings
conducted on the spot. He admitted that the accused were
visible in the photographs Mark-A9 and A10 with him, the
Tehsildar and members of the police party. He admitted
that the memo (Ext. PW-1/A) was prepared on the spot, and
he had signed the same. He identified the substance shown
to him in the Court as the same, which was recovered on the
spot. He stated in his cross-examination by learned counsel
for the defence that he had never seen charas or narcotic
substance prior to that day, and the substance shown to him
in the Court was seen by him for the first time. The cloth
parcels were not stitched in his presence, but he volunteered
42 2024:HHC:16483
to say that a seal was put on the parcels in his presence. The
vehicle of the accused was parked towards the left side of the
road. Some documents were signed at the Police Station. No
personal search of the accused was conducted. He remained
on the spot for 20-25 minutes and thereafter went to his
shop. He went to the Police Station after 30-45 minutes. He
did not know about the contents of the documents signed by
him. Tehsildar-Jaspal (PW-2) had also visited the Police
Station on that day. He, Jaspal and SHO Yograj (PW-14) are
known to each other. He denied that he had deep
acquaintance with the SHO. He remained in the vehicle of
Tehildar for about 10 minutes. Normally, if the vehicles are
stopped by the police, there is a big hold up of the traffic.
The police had also stopped other vehicles for checking. No
other vehicle was seen in the photographs (Mark A-1 to A-
24). No chairs or tables were available on the spot. He
volunteered to say that documentation was done by the
police on the bonnet of the vehicle. He admitted that many
people had gathered on the spot.
37. It is apparent from the cross-examination of this
witness by the learned Public Prosecutor that he has
43 2024:HHC:16483
admitted a substantial part of the prosecution case. He
admitted that police searched the vehicle, and Charas
(Ext.P-3) was recovered during the search. He also admitted
the presence of accused Sanjay Kumar and Jasmer Singh in
the vehicle. Therefore, the mere fact that he has been
declared hostile by the prosecution and was cross-examined
by the learned Public Prosecutor will not discredit his
testimony. It was laid down by the Hon’ble Supreme Court in
Selvamani v. State, 2024 SCC OnLine SC 837 that the
testimony of a hostile witness is not effaced from the record
and the version which is as per the prosecution evidence or
the defence version can be accepted if corroborated by other
evidence on record. It was observed:
“9. A 3-Judge Bench of this Court in the case of Khujji
@ Surendra Tiwari v. State of Madhya Pradesh (1991) 3
SCC 627: 1991 INSC 153, relying on the judgments of
this Court in the cases of Bhagwan Singh v. State of
Haryana (1976) 1 SCC 389: 1975 INSC 306, Sri Rabindra
Kuamr Dey v. State of Orissa (1976) 4 SCC 233: 1976
INSC 204, Syad Akbar v. State of Karnataka (1980) 1 SCC
30: 1979 INSC 126, has held that the evidence of a
prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile
and cross-examined him. It was further held that the
evidence of such witnesses cannot be treated as
effaced or washed off the record altogether, but the
44 2024:HHC:16483
same can be accepted to the extent their version is
found to be dependable on a careful scrutiny thereof.
10. This Court, in the case of C. Muniappan v. State of
Tamil Nadu (2010) 9 SCC 567: 2010 INSC 553, has
observed thus:
“81. It is a settled legal proposition that (Khujji
case, SCC p. 635, para 6)
‘6. … the evidence of a prosecution witness
cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and
cross-examined him. The evidence of such
witnesses cannot be treated as effaced or
washed off the record altogether, but the same
can be accepted to the extent their version is
found to be dependable on a careful scrutiny
thereof.’
82. In State of U.P. v. Ramesh Prasad Misra, (1996)
10 SCC 360], this Court held that (at SCC p. 363,
para 7) evidence of a hostile witness would not be
totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the
prosecution or defence can be relied upon. A
similar view has been reiterated by this Court
in Balu Sonba Shinde v. State of
Maharashtra, (2002) 7 SCC 543], Gagan
Kanojia v. State of Punjab, (2006) 13 SCC
516], Radha Mohan Singh v. State of U.P., (2006) 2
SCC 450], Sarvesh Narain Shukla v. Daroga
Singh, (2007) 13 SCC 360] and Subbu
Singh v. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect
that the evidence of a hostile witness cannot be
discarded as a whole, and relevant parts thereof,
which are admissible in law, can be used by the
prosecution or the defence.
45 2024:HHC:16483
84. In the instant case, some of the material
witnesses, i.e. B. Kamal (PW 86) and R. Maruthu
(PW 51), turned hostile. Their evidence has been
taken into consideration by the courts below
strictly in accordance with the law. Some
omissions and improvements in the evidence of
the PWs have been pointed out by the learned
counsel for the appellants, but we find them to be
very trivial in nature.
85. It is a settled proposition of law that even if
there are some omissions, contradictions and
discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution and
sifting through the evidence to separate truth
from untruth, exaggeration and improvements,
the court comes to a conclusion as to whether the
residuary evidence is sufficient to convict the
accused. Thus, undue importance should not be
attached to omissions, contradictions and
discrepancies which do not go to the heart of the
matter and shake the basic version of the
prosecution’s witness. As the mental abilities of a
human being cannot be expected to be attuned to
absorb all the details of the incident, minor
discrepancies are bound to occur in the
statements of witnesses. Vide Sohrab v. State of
M.P., (1972) 3 SCC 751, State of U.P. v. M.K.
Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State
of Rajasthan v. Om Prakash, (2007) 12 SCC
381, Prithu v. State of H.P., (2009) 11 SCC 588, State
of U.P. v. Santosh Kumar, (2009) 9 SCC
626 and State v. Saravanan, (2008) 17 SCC 587″
38. Jaspal (PW-2) stated that he was coming in his
official vehicle towards Swarghat on 11.09.2016. Rajpal met
46 2024:HHC:16483
him on the way, who was also going towards Swarghat.
Rajpal knew him; therefore, he took him in the car, and both
of them went towards Swarghat. When they reached the BDO
Office, they found that police were checking the vehicles. He
stopped the car.He and Rajpal came out of the car. He
remained on the spot with police. The police had checked
many vehicles. Two to three vehicles were already present
on the spot. A vehicle bearing registration No.HR10L-8800
was being checked by police. Two persons were present in
the vehicle. One of them disclosed his name as Sanjay, but he
did not remember the name of the other person. He
identified the accused persons present in the Court as the
same persons who were present in the vehicle. The police
detected some suspicious substances below the cover of the
box. He and Rajpal (PW-1) were also standing when police
found five plastic packets and took them out of the car. The
police opened the packets and found that they contained a
black coloured stick-like substance. The police checked the
substance and said that it might be charas. The police
weighed the substance and found its weight to be 1 kg and
200/300 grams. He did not remember the correct weight of
47 2024:HHC:16483
the substance. The substance was weighed with the
polythene envelops. He then corrected to say that the
substance, polythene bag and tape were weighed separately.
The substance weighed more than 1 kg 300 grams. The
weight of the polythene bags and tape was 35 grams. These
were put in separate cloth parcels. Charas was kept in a
cloth parcel, and the parcel was sealed with six seals of ‘H’.
The polythene packets and tape were also put in another
cloth parcel, and the parcel was sealed with six seals of ‘H”.
The seal impression was taken on a separate piece of cloth
(Ext.PW-1/D). The accused persons, he and Rajpal, signed
the sample seal. He identified his signatures on the sample
seal. NCB form was filled up, and the seal impression ‘H’
was put on the form. The police handed over the seal to him
after its use. The driver handed over the documents of the
vehicle and his driving licence. The police seized cloth
parcels and documents of the vehicle vide memo
(Ext.PW-1/A), which was signed by the accused, him, Rajpal
(PW-1) and the police. He identified his signatures on the
memo. The police took photographs of the spot(Mark A1 to
A24). The Investigating Officer prepared the spot map. He
48 2024:HHC:16483
identified his signatures on the parcels as well as the case
property. He stated in his cross-examination that he could
not tell the details of the documents prepared by the police
initially. His vehicle was not known to the police. He denied
that he was called by the police. He, Rajpal and other police
officials went to the Police Station at about 11:00 a.m. He
admitted that his signatures were obtained only on the white
cloth. He admitted that the plain white cloth shown in the
photograph did not bear any kind of seal. He remained in
the Police Station for 20-30 minutes. He admitted that he
had never seen Charas in his life, and the police told him
that the substance might be Charas. He admitted that he had
not brought the seal, which was handed over to him. He
denied that the sample seal was drawn in the Police Station
and he was not producing the seal deliberately. He had not
lodged any F.I.R. regarding the missing of the seal. Many
police officials were writing the documents, but he could not
tell which police official wrote which document. No written
notice regarding the search of the vehicle and the personal
search was issued by the police. He admitted that the
weighing scale was running on an electric connection, and it
49 2024:HHC:16483
was not shown to be connected to the electricity in the
photograph. No police official went to the Police Station in
his presence. The police had not placed any barricades to
stop the vehicles. The nakka was set up on the roadside. The
Excise barrier and the barrier of the forest department were
located within 100 meters. Three-four (3-4) vehicles were
already checked when he reached the spot. He remained on
the spot for about 25-30 minutes. The police told him that
they had suspicions regarding some contraband being
carried in the vehicle and had asked him to associate himself
with the search of the accused. The vehicle of the accused
was parked on the roadside. The documentation was done
by placing papers on the bonnet of the vehicle. The cloth
parcel was prepared by the police on the spot in his presence
from plain clothes. He denied that the parcels were stitched
with a swing machine. He did not remember whether the
mobile phone was seized by the police from the accused or
not. He admitted that many people had gathered on the spot
at the time of the incident. All the polythene packets were
transparent white Ext.P-5 to Ext. P-8 appeared to be clean
and transparent, whereas Ext.P-4 was soiled with some
50 2024:HHC:16483
substance. Ext. P-5 to Ext.P-8 were smelling neutral,
whereas Ext.P-4 had a pungent smell. He denied that no
proceedings were conducted on the spot and that entire
proceedings were conducted in the Police Station. He denied
that he was making false statement because he was a
government official.
39. It was submitted that this witness admitted in his
cross-examination that police had told him that they had a
suspicion of the presence of the contraband, and that is why
he was asked to be associated with the police. This shows
that the police had prior information regarding the
transportation of the charas, and it was bound to comply
with the requirement of Section 42 of the NDPS Act. This
submission is not acceptable. The provisions of Section 42
of the NDPS Act applies when the police had a reason to
believe from personal knowledge or information given by
any person that any narcotic drug, psychotropic substance,
or controlled substance is kept or concealed. There is a
distinction between vague suspicion and definite grounds of
belief. The police are required to comply with the
requirement of Section 42 of the NDPS Act when it has
51 2024:HHC:16483
definite information and not a vague suspicion. It was laid
down in Babubhai Odhavji Patel and others Versus State of
Gujarat 2005(8) SCC 425 that even when the Investigating
Officer admitted that DIG had instructed him about the
transportation of the intoxicant from the States of Rajasthan
and Uttar Pradesh through the vehicles passing in his
District, it was only general information. It was not required
to be reduced to writing. Only specific information is to be
recorded by the empowered officer. It was observed:
“As regards violation of Section 42 of the NDPS Act, it
was contended that PSI, L.U. Pandey had received
previous information before going for the search, but
he had not recorded this information anywhere, and
he had also not informed his superior officers about
the proposed seizure. In the present case, the officer
who conducted the search was examined as PW-2.
What he stated in the evidence was that the D.I.G. had
instructed him that intoxicant materials were being
transported illegally from the States of Rajasthan and
Uttar Pradesh, and the vehicles had been passing
through Banaskantha district. This was only general
information given by the D.I.G. to PW-2, and such
information is not bound to be recorded as a source
of information as contemplated under Section 42 of
the NDPS Act. Section 42 of the NDPS Act provides that
specific information alone needs to be recorded by the
officer empowered to conduct a search.Here, PW-2 and
the members of the patrol team were doing the usual
patrol duty, and they incidentally came across the tanker
lorry in question and, on search, recovered the
52 2024:HHC:16483
contraband substance from the vehicle. We do not think
that there is any violation of Section 42 of the NDPS Act.
5. The counsel for the appellant further contended
that the search was conducted at 5.30 A.M., that is,
before sunrise, and the PSI should have obtained a
warrant or authorisation for conducting the search of
the vehicle. This plea also is without any merit. The
contraband substance, namely opium, was recovered
from the tanker when the usual search of suspected
vehicles carrying such contraband was being conducted
by the police officials. The police party had no previous
information that any contraband substance was being
concealed in any building, conveyance or enclosed space,
and they had to conduct a search pursuant to such
information. Then, only they would require a warrant or
authorisation as contemplated under Section 42 of the
NDPS Act. If it is a chance recovery, the procedure
contemplated under Section 42 cannot be complied with,
and the evidence of PW-2 would clearly show that it was
a chance recovery.” (Emphasis supplied)
40. Similarly, it was held in Subhas Chandra Jana
Versus Ajibar Mirdha 2011 Cri. L.J. 257 that section 42 of the
NDPS Act is applicable only when the police have specific
information. When the police had received secret
information, which was not specific but vague or non-
provable information, there was no requirement to reduce it
to writing. It was observed:
“The compliance of Section 42(1) of the NDPS Act,
1985 is mandatory. From the facts of the present
case, it is very clear that the NCB Officers raided the
house of the accused, receiving prior information.
But, as per the above-mentioned section, Officers
53 2024:HHC:16483receiving prior information should reduce the same
in writing and also record the reasons for the belief.
According to the Prosecution, they did not go on the
basis of any information but only to work out an
intelligence, whereas PW 2, during cross-
examination, said that they raided on the basis of
secret information. So, according to the defence,
non-compliance of the mandatory provision of
Section 42(1) vitiated the trial. In the case, Babulal v.
State, 1995 Cri LJ 4105 Bombay High Court observed
that no vague information is required to be reduced
to writing. Thus, where the information received by
the Police Officer was that some persons had arrived
at a particular place with a large quantity of brown
sugar and they were in search of customers, the
information so received was not specific, which
required the police to reduce it to writing. This was
not information as contemplated under Sections 41
and 42 of the NDPS Act, 1985.
This view was approved by the Apex Court in the case
of State of Punjab v. Balbir Singh, 1994 Cal CLR (SC) 121
: (AIR 1994 SC 1872: 1994 Cri LJ 3702). Paragraph 22 of
the said decision is quoted below:–
“We have also already noted that the searches
under the NDPS Act by virtue of Section 51 have
to be carried under the provisions of Cr. P. C.,
particularly Sections 100 and 165. The
irregularities, if any, committed, like
independent witnesses not being associated or
the witnesses not from the locality while
carrying out the searches, etc., under sections
100 and 165, Cr. P. C. would not, as discussed
above, vitiate the trial. But a question may still
arise: when an empowered officer acting under
Sections 41 and 42 of the Act carries out a
search under Section 165, Cr. P. C., without
recording the grounds of his belief as provided
under Section 165, whether such failure also
54 2024:HHC:16483would vitiate the trial, particularly in view of
the fact that such a search is connected with
offences under the NDPS Act. Neither Section
41(2) nor Section 42( 1) mandates such
empowered officers to record the grounds of
their beliefs. It is the only proviso to Section 42
(1) read with Section 42(2), which makes it
obligatory to record grounds for his belief. To
that extent, we have already held the
provisions being mandatory. A fortiori, the
empowered officer, though is expected to
record reasons of belief as required under
Section 165, failure to do so cannot vitiate the
trial, particularly when Section 41 or 42 do not
mandate to record reasons while making a
search. Section 165 in the context has to be read
along with Sections 41(2) and 42(1)
whereunder he is not required to record his
reasons.”
In the present case, the NCB officials raided the
house of the accused not on any specific information
but on vague, uncertain and probable information.
The term “Secret” nowhere indicates that the
information was reliable. So, on the basis of the
above-mentioned judgment, there was no
requirement to reduce it to writing as there was no
formal or definite complaint as such.
Assuming that the NCB Officials had definite
information about the Accused, then also the trial
cannot be vitiated on this ground. The Apex Court in
H. N. Rishbud v. State of Del. AIR 1955 SC 196 : (1955 Cri
LJ 526) held that a defect or illegality in the
investigation, however serious, has no bearing on the
competence of the procedure relating to cognisance
or trial.
Drug trafficking is equally, if not more, dangerous, as
it allures and has allured, a generation of young
Indians from Manipur to Gujarat, from Kashmir to
55 2024:HHC:16483
Kanya Kumari who is crippled by these drugs and
psychotropic substances, whose senses are
atrophied, to whom illusion has become a reality,
who are beating their marches slowly and painfully
Farid Ali v. State, 1994 Cal Cr LR 189. In the present
case, the accused himself voluntarily made a
confessional statement stating that he dealt with
Heroin for the livelihood of his family. So, after the
voluntary admission by the Accused, there remains
no scope to acquit the accused on the grounds of
mere irregularity of procedural compliance by the
prosecution in the interest of justice. It was held in
the case In Re: Md. Farid Ali v. State (1994 Cal Cri LR
189) that Recovery of Narcotics from an accused
cannot impede the course of justice merely on the
ground of procedural lapses when the contraband
goods on ultimate analysis are found to be Narcotic
by the expert. It, therefore, excludes the plea of
technicality, which cannot make any triumph over
social legislation. ”
41. Further, the statement that the police had a
suspicion about contraband is not equivalent to the
suspicion of Narcotic Drugs or Psychotropic Substances. The
term ‘Contraband’, according to Merriam-Webster
Dictionary, means goods or merchandise exportation or
possession of which is forbidden. According to the
Cambridge Dictionary, contraband means goods that are
brought into or taken out of the country secretly and
illegally. According to the Collins English Dictionary,
contraband refers to goods that are taken into or out of the
56 2024:HHC:16483
country illegally. According to the Oxford Learner
Dictionary,contraband means goods that are illegally taken
into or out of the country. Therefore, all the standard
dictionaries do not refer to contraband as Narcotic Drugs or
Psychotropic Substances, but to illegal goods. Hence, they
include many other things besides narcotics or psychotropic
substances. Thus, not much advantage can be derived from
the admission made by this witness that police had told him
about suspicion of the presence of the contraband in the
vehicle.
42. HC Bhag Singh (PW-3) supported the
prosecution case in his examination-in-chief. He stated in
his cross-examination by learned counsel for the defence
that his statement was recorded by the Investigating Officer
after he reached the spot after 1:00 p.m. The police party
departed from the police station at 4:57 a.m. The nakka was
laid near the BDO office, and no barricade was fixed. The
police checked many vehicles and also challaned many
vehicles under the Motor Vehicles Act. They took about 3-4
minutes to check the vehicles. No personal search of the
accused Sanjay and Jasmer was carried out by the
57 2024:HHC:16483
Investigating Officer. Bazar was within walking distance.
They had no Drug Detection Kit with them on the relevant
day. Only an expert can tell about the substance being
charas. He volunteered to say that training of the
identification was also imparted during training. He denied
that the vehicle was detained by the police at the Police
Station on 10.09.2016. He denied that the accused were
falsely implicated to save the real persons. The mobile
phone was already in the possession of the police, and he
had seen it during the proceedings on 15.09.2016. The nakka
was laid approximately 500 meters from the Police Station.
Buildings of the BDO Office, Tehsil and SDM Office are
located adjacent to each other. Many visitors used to visit
these offices regularly. Nakka was laid on NH 205, which
was earlier NH-21. He admitted that vehicular traffic at the
Cement Factory is plying on the road. He admitted that
there was a long queue of vehicles at the barrier. They were
present on the spot from 5:00 a.m. till the completion of the
proceedings at about 5:00-6:00 p.m. The vehicle was
nabbed by the police at about 10:15 a.m. If each vehicle was
stopped for 3-4 minutes, it would lead to a traffic jam. He
58 2024:HHC:16483
volunteered to say that it would not be so when the vehicle
was separately checked on the roadside. Tehsildar was
passing through the spot, per chance. Rajpal (PW-1) used to
be President of some Temple Committee. Rajpal (PW-1)
never visited the Police Station in his presence. Tehsildar
reached the spot before the vehicle was signalled to stop.
The SHO stopped the vehicle when he was talking to Jaspal.
Tehsildar was not called to check the vehicle; rather, he was
present while the checking of the vehicle was being carried
out. All the police officials went to the vehicle to check it.
Tehsildar had not carried out the checking of the vehicle. He
remained on the spot till 4:00 p.m. Witnesses had not left
the spot till the completion of the proceedings. There was no
electricity connection available on the spot. There were pine
trees adjacent to the spot. The Police Station had eucalyptus
trees in its yard. Tehsildar and Rajpal were not called to the
Police Station after the completion of the formalities. It took
about 1 hour and 20 minutes for arrival and departure from
the spot to the Police Station. The accused were arrested at
about 4:00 p.m. The accused were searched before putting
them in police lock up. He did not remember whether any
59 2024:HHC:16483
memo was prepared regarding the search of the accused or
not. He denied that all the proceedings were falsely
conducted.
43. SI/SHO Yograj (PW-14) also supported the
prosecution case in his examination-in-chief. He stated in
his cross-examination by learned defence counsel that
Nakka was set up at about 5:00 a.m. He did not count the
number of vehicles checked by the police from 5:00 a.m. to
10:15 a.m. He had checked many vehicles during the
checking but did not remember whether he had challaned
any vehicle or not for violation of Traffic Rules. There were
five (5) other police officials besides him. Tehsildar was
already present with the police party before the vehicle of
the accused was intercepted. Rajpal (PW-1) was also
present on the spot before the arrival of the car of the
accused. Tehildar was coming from Bilaspur towards
Swarghat. Tehsil Office and B.D.O. office are located adjacent
to each other. Tehsildar was going for his own work. He had
not talked much with Tehsildar before the car of the accused
came. Tehsildar stopped his car on the roadside and came
towards the police party. He had stopped the car at about 7-
60 2024:HHC:16483
8 meters from him. Every car was not searched. A personal
search of the accused was not conducted on suspicion. The
police party remained on the spot till 4:30 p.m. Tehsildar
and Rajpal (PW-1) remained on the spot till 4:30 p.m.
Tehsildar and Rajpal (PW-1) did not accompany the police to
the Police Station. Four polythene packets were opened by
him on the spot,and the contents of four polythene packets
were put in the 5th polythene packet, which also had
contraband. The contraband was taken out of the car by
him. The witnesses were present when the car was being
searched. HC Bhag Singh (PW-3) was standing beside him.
He signalled the vehicle to stop. The weighing machine was
with the police party. The photographs (Ext. PN-1 to
Ext.PN-24) were taken by one of the police officials, but he
did not remember his name. No electric point was available
on the spot. People did not gather near the police party. He
denied that the photographs were taken at some other place.
He admitted that no photograph of the sealing of the case
property was taken. The charas was also wrapped with very
thin polythene. He admitted that there were eucalyptus
trees near the Police Station. He volunteered to say that
61 2024:HHC:16483
eucalyptus trees also existed on the spot. He admitted that
no documents regarding the personal search of the accused
were placed on the Court file. The accused were arrested at
4:00 p.m. on 11.09.2016. The personal search of the accused
was conducted in the Police Station. The description of the
mobile phone was not given. The mobile phone was
recovered from Jasmer Singh. He denied that police falsely
implicated the accused, and nothing was recovered by the
police.
44. The testimony of the prosecution witnesses
corroborated each other in material particulars. Jaspal
Singh-Tehsildar (PW-2) is an independent and respectable
person. He had no reason to support the police.
45. It was submitted that Rajpal (PW-1) and Jaspal
(PW-2) stated that they had visited the Police Station and
had signed some of the documents in the Police Station.
This is contrary to the statements of the police officials, who
denied that Jaspal (PW-2) and witness Rajpal (PW-1) had
visited the Police Station on the day of the incident. There is
indeed a discrepancy in the statements of the witnesses
62 2024:HHC:16483
regarding the visit of Rajpal (PW-1) and Jaspal (PW-2) to
the Police Station. However, it is merely a discrepancy
regarding the details surrounding the incident and does not
affect the core of the prosecution case. Further, it is to be
noted that the incident took place on 11.09.2016, whereas
the statement of Rajapal (PW-1) was recorded on 13.12.2017,
the statement of Jaspal (PW-2) was recorded on 08.08.2018,
the statement of Bhag Singh (PW-3) was recorded on
06.11.2018, and the statement of SHO/SI Yog Raj (PW-14)
was recorded on 18.02.2021. Therefore, sufficient time had
elapsed between the incident and the date of the recording
of the statements of the witnesses. The contradictions were
bound to come with time because of the failure of the
memory with time. The principles of appreciation of ocular
evidence were explained by the Hon’ble Supreme Court in
Balu Sudam Khalde v. State of Maharashtra 2023 SCC OnLine
SC 355, as under:-
“25. The appreciation of ocular evidence is a hard
task. There is no fixed or straightjacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence
in a criminal case can be enumerated as under:
“I. While appreciating the evidence of a
63 2024:HHC:16483witness, the approach must be whether the
evidence of the witness read as a whole appears
to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the
Court to scrutinize the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find
out whether it is against the general tenor of
the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken
as to render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the
opinion about the general tenor of evidence
given by the witness, the appellate court which
did not have this benefit will have to attach due
weight to the appreciation of evidence by the
trial court and unless there are reasons weighty
and formidable it would not be proper to reject
the evidence on the ground of minor variations
or infirmities in the matter of trivial details.
III. When an eyewitness is examined at length
it is quite possible for him to make some
discrepancies. But courts should bear in mind
that it is only when discrepancies in the
evidence of a witness are so incompatible with
the credibility of his version that the court is
justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper-technical
approach by taking sentences torn out of
context here or there from the evidence,
attaching importance to some technical error
committed by the investigating officer not
going to the root of the matter would not
ordinarily permit rejection of the evidence as a
whole.
64 2024:HHC:16483
V. Too serious a view to be adopted on mere
variations falling in the narration of an
incident (either as between the evidence of two
witnesses or as between two statements of the
same witness) is an unrealistic approach for
judicial scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall
the details of an incident. It is not as if a video
tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not
have anticipated the occurrence, which so
often has an element of surprise. The mental
faculties therefore cannot be expected to be
attuned to absorb the details.
VIII. The powers of observation differ from
person to person. What one may notice,
another may not. An object or movement might
emboss its image on one person’s mind
whereas it might go unnoticed on the part of
another.
IX. By and large people cannot accurately recall
a conversation and reproduce the very words
used by them or heard by them. They can only
recall the main purport of the conversation. It
is unrealistic to expect a witness to be a human
tape recorder.
X. In regard to the exact time of an incident, or
the time duration of an occurrence, usually,
people make their estimates by guesswork on
the spur of the moment at the time of
interrogation. And one cannot expect people to
make very precise or reliable estimates in such
matters. Again, it depends on the time sense of
individuals which varies from person to
person.
65 2024:HHC:16483
XI. Ordinarily a witness cannot be expected to
recall accurately the sequence of events, which
take place in rapid succession or in a short time
span. A witness is liable to get confused, or
mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable
to be overawed by the court atmosphere and
the piercing cross-examination by counsel and
out of nervousness mix up facts, get confused
regarding the sequence of events, or fill up
details from imagination on the spur of the
moment. The subconscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being disbelieved
though the witness is giving a truthful and
honest account of the occurrence witnessed by
him.
XIII. A former statement though seemingly
inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement has
the potency to discredit the latter statement,
even if the latter statement is at variance with
the former to some extent it would not be
helpful to contradict that witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, 1983 Cri LJ 1096: ((1983) 3 SCC 217: AIR
1983 SC 753) Leela Ram v. State of Haryana,
(1999) 9 SCC 525: AIR 1999 SC 3717 and Tahsildar
Singh v. State of UP (AIR 1959 SC 1012)]
46. It was laid down by the Hon’ble Supreme Court in
Karan Singh v. State of U.P., (2022) 6 SCC 52 : (2022) 2 SCC
(Cri) 479: 2022 SCC OnLine SC 253 , that the Court has to
examine the evidence of the witnesses to find out whether it
66 2024:HHC:16483
has a ring of truth or not. The Court should not give undue
importance to omission, contradictions and discrepancies
which do not go to the heart of the matter. It was observed
at page 60:-
“38. From the evidence of Mahender Singh, PW 4, it
appears that no specific question was put to him as to
whether the appellant was present at the place of
occurrence or not. This Court in Rohtash
Kumar v. State of Haryana [Rohtash Kumar v. State of
Haryana, (2013) 14 SCC 434 : (2014) 4 SCC (Cri)
238]held : (SCC p. 446, para 24)
“24. … The court has to examine whether evidence
read as a whole appears to have a ring of truth.
Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence
more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out
whether it is against the general tenor of the
evidence given by the witnesses and whether the
earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go
to the heart of the matter, and shake the basic
version of the prosecution witness.”
39. Referring to Narayan Chetanram
Chaudhary v. State of Maharashtra [Narayan
Chetanram Chaudhary v. State of Maharashtra, (2000)
8 SCC 457: 2000 SCC (Cri) 1546], Mr Tyagi argued that
minor discrepancies caused by lapses in memory
were acceptable, contradictions were not. In this
case, there was no contradiction, only minor
discrepancies.
67 2024:HHC:16483
40. In Kuriya v. State of Rajasthan [Kuriya v. State of
Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202],
this Court held: (SCC pp. 447-48, paras 30-32)
“30. This Court has repeatedly taken the view that
the discrepancies or improvements which do not
materially affect the case of the prosecution and
are insignificant cannot be made the basis for
doubting the case of the prosecution. The courts
may not concentrate too much on such
discrepancies or improvements. The purpose is to
primarily and clearly sift the chaff from the grain
and find out the truth from the testimony of the
witnesses. Where it does not affect the core of the
prosecution case, such discrepancy should not be
attached undue significance. The normal course of
human conduct would be that while narrating a
particular incident, there may occur minor
discrepancies. Such discrepancies may even, in
law, render credentials to the depositions. The
improvements or variations must essentially
relate to the material particulars of the
prosecution case. The alleged improvements and
variations must be shown with respect to
the material particulars of the case and the
occurrence. Every such improvement, not directly
related to the occurrence, is not a ground to doubt
the testimony of a witness. The credibility of a
definite circumstance of the prosecution case
cannot be weakened with reference to such minor
or insignificant improvements. Reference in this
regard can be made to the judgments of this Court
in Kathi Bharat Vajsur v. State of Gujarat [Kathi
Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 :
(2012) 2 SCC (Cri) 740], Narayan Chetanram
Chaudhary v. State of Maharashtra [Narayan
Chetanram Chaudhary v. State of Maharashtra,
(2000) 8 SCC 457: 2000 SCC (Cri) 1546], Gura
Singh v. State of Rajasthan [Gura Singh v. State of
68 2024:HHC:16483Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323]
and Sukhchain Singh v. State of Haryana [Sukhchain
Singh v. State of Haryana, (2002) 5 SCC 100: 2002
SCC (Cri) 961].
31. What is to be seen next is whether the version
presented in the Court was substantially similar to
what was said during the investigation. It is only
when exaggeration fundamentally changes the
nature of the case the Court has to consider
whether the witness was stating the truth or not.
[Ref. Sunil Kumar v. State (NCT of Delhi) [Sunil
Kumar v. State (NCT of Delhi), (2003) 11 SCC 367:
2004 SCC (Cri) 1055] ].
32. These are variations which would not amount
to any serious consequences. The Court has to
accept the normal conduct of a person. The
witness who is watching the murder of a person
being brutally beaten by 15 persons can hardly be
expected to state a minute-by-minute description
of the event. Everybody, and more particularly a
person who is known to or is related to the
deceased, would give all his attention to take steps
to prevent the assault on the victim and then to
make every effort to provide him with medical aid
and inform the police. The statements which are
recorded immediately upon the incident would
have to be given a little leeway with regard to the
statements being made and recorded with utmost
exactitude. It is a settled principle of law that
every improvement or variation cannot be treated
as an attempt to falsely implicate the accused by
the witness. The approach of the court has to be
reasonable and practicable. Reference in this
regard can be made to Ashok Kumar v. State of
Haryana [Ashok Kumar v. State of Haryana, (2010)
12 SCC 350: (2011) 1 SCC (Cri) 266]
and Shivlal v. State of Chhattisgarh [Shivlal v. State
69 2024:HHC:16483
of Chhattisgarh, (2011) 9 SCC 561 : (2011) 3 SCC (Cri)
777] .”
41. In Shyamal Ghosh v. State of W.B. [Shyamal
Ghosh v. State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC
(Cri) 685], this Court held : (SCC pp. 666-67, paras 46
& 49)
“46. Then, it was argued that there are certain
discrepancies and contradictions in the statement
of the prosecution witnesses inasmuch as these
witnesses have given different timing as to when
they had seen the scuffling and strangulation of
the deceased by the accused. … Undoubtedly, some
minor discrepancies or variations are traceable in
the statements of these witnesses. But what the
Court has to see is whether these variations are
material and affect the case of the prosecution
substantially. Every variation may not be enough
to adversely affect the case of the prosecution.
***
49. It is a settled principle of law that the court
should examine the statement of a witness in its
entirety and read the said statement along with
the statement of other witnesses in order to arrive
at a rational conclusion. No statement of a witness
can be read in part and/or in isolation. We are
unable to see any material or serious contradiction
in the statement of these witnesses which may
give any advantage to the accused.”
42. In Rohtash Kumar v. State of Haryana [Rohtash
Kumar v. State of Haryana, (2013) 14 SCC 434 : (2014) 4
SCC (Cri) 238], this Court held : (SCC p. 446, para 24)
“24. … The court has to examine whether
the evidence read as a whole appears to have a
ring of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinise
the evidence more, particularly keeping in view
the deficiencies, drawbacks, and infirmities
70 2024:HHC:16483
pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
general tenor of the evidence given by the
witnesses and whether the earlier evaluation of
the evidence is shaken, as to render it unworthy of
belief. Thus, the court is not supposed to give
undue importance to omissions, contradictions
and discrepancies which do not go to the heart of
the matter and shake the basic version of the
prosecution witness.”
47. Similar is the judgment in Anuj Singh v. State of
Bihar, 2022 SCC OnLine SC 497: AIR 2022 SC 2817, wherein it
was observed:-
“[17] It is not disputed that there are minor
contradictions with respect to the time of the
occurrence or injuries attributed on hand or foot, but
the constant narrative of the witnesses is that the
appellants were present at the place of occurrence
armed with guns and they caused the injury on
informant PW-6. However, the testimony of a
witness in a criminal trial cannot be discarded merely
because of minor contradictions or omissions, as
observed by this court in Narayan Chetanram
Chaudhary & Anr. Vs. State of Maharashtra, 2000 8 SCC
457. This Court, while considering the issue of
contradictions in the testimony while appreciating
the evidence in a criminal trial, held that only
contradictions in material particulars and not minor
contradictions can be ground to discredit the
testimony of the witnesses. The relevant portion of
para 42 of the judgment reads as under:
“42. Only such omissions which amount to a
contradiction in material particulars can be
used to discredit the testimony of the witness.
The omission in the police statement by itself
71 2024:HHC:16483would not necessarily render the testimony of
the witness unreliable. When the version given
by the witness in the court is different in
material particulars from that disclosed in his
earlier statements, the case of the prosecution
becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false, and the sense of
observation differs from person to person. The
omissions in the earlier statement, if found to
be of trivial details, as in the present case, the
same would not cause any dent in the
testimony of PW 2. Even if there is a
contradiction of statement of a witness on any
material point, that is no ground to reject the
whole of the testimony of such witness.”
48. Therefore, in view of the binding precedents of
the Hon’ble Supreme Court, the statements of the witnesses
cannot be discarded due to omissions, contradictions or
discrepancies. The Court has to see whether the
discrepancies affect the prosecution case adversely or not
and whether they are related to the core of the prosecution
case or the details. In the present case, the contradiction
does not go to the core of the prosecution case, and it cannot
be used to discard the prosecution version.
49. It was further submitted that witnesses admitted
that the weighing machine is shown to be electricity-
72 2024:HHC:16483
operated in the photographs, and there was no electricity on
the spot. This submission is not acceptable. It is apparent
from the photographs (Ext.PN-4 and Ext.P-5) that the
electric cord is wrapped around the weighing machine;still,
the reading of the machine is visible in it, which shows that
the weighing machine is not only operable with electricity
alone but can operate without electricity as well. Thus, the
mere fact that there was no electricity connection available
on the spot will not make the prosecution case suspect.
50. It was submitted that the police official admitted
that a search of the accused was conducted before they were
put in the judicial lockup. Therefore, it was necessary to
comply with the requirement of Section 50 of the NDPS Act.
Since the police have not complied with the requirement of
Section 50 of the NDPS Act, therefore, the prosecution case
is to be discarded. This submission is also not acceptable. It
was laid down by Hon’ble Supreme Court on Ranjan Kumar
Chadha vs State of H.P. 2023 SCC Online SC 1262; AIR 2023 SC
5164 that even if the personal search of the accused is
conducted,but no recovery was effected from the personal
search, there is need to comply with Section 50 of NDPS Act,
73 2024:HHC:16483
and the accused cannot be acquitted merely because the
personal search of the accused was also conducted.
51. Moreover, Section 51 of the Code of Criminal
Procedure, 1973, provides that whenever a person is arrested
by a Police Officer without a warrant, the Officer making the
arrest may search such person and place all articles other
than necessary wearing apparel found upon the accused in
safe custody and provide a receipt of the articles found in
possession of the person. Thus, the Code of Criminal
Procedure contemplates the search of the person who has to
be arrested by the police. Hence, the search of the accused
person before they were put in the judicial lockup was
pursuant to the mandate provided in Section 51 of Cr.P.C.,
which does not contemplate the giving of option under
Section 50 of NDPS Act before carrying out the search and,
no advantage can be derived from the fact that accused were
searched before they were put in judicial lock up.
52. It was submitted that Constable Krishan Baldev,
HHG Inder Pal, HHG Banta Singh and Driver HHC Sanjeev
Kumar were not examined, and this caused a serious dent in
74 2024:HHC:16483
the prosecution case. This submission is also not acceptable.
It was laid down by the Hon’ble Supreme Court in Pohlu v.
State of Haryana (2005) 10 SCC 196 that the intrinsic worth of
the testimony of witnesses has to be assessed by the Court,
and if the testimony of the witnesses appears to be truthful,
the non-examination of other witnesses will not make the
testimony doubtful. It was observed: –
“[10] It was then submitted that some of the material
witnesses were not examined and, in this connection,
it was argued that two of the eye-witnesses named in
the FIR, namely, Chander and Sita Ram, were not
examined by the prosecution. Dharamvir, son of
Sukhdei, was also not examined by the prosecution,
though he was a material witness, being an injured
eyewitness, having witnessed the assault that took
place in the house of Sukhdei PW 2. It is true that it is
not necessary for the prosecution to multiply
witnesses if it prefers to rely upon the evidence of
eyewitnesses examined by it, which it considers
sufficient to prove the case of the prosecution.
However, the intrinsic worth of the testimony of the
witnesses examined by the prosecution has to be
assessed by the Court. If their evidence appears to be
truthful, reliable and acceptable, the mere fact that
some other witnesses have not been examined will
not adversely affect the case of the prosecution. We
have, therefore, to examine the evidence of the two
eyewitnesses, namely, PW 1 and PW 2, and to find
whether their evidence is true, on the basis of which
the conviction of the appellants can be sustained. ”
75 2024:HHC:16483
53. This position was reiterated in Rohtash vs State of
Haryana 2013 (14) SCC 434, and it was held that the
prosecution is not bound to examine all the cited witnesses,
and it can drop witnesses to avoid multiplicity or plurality of
witnesses. It was observed:
14. A common issue that may arise in such cases
where some of the witnesses have not been
examined, though the same may be material
witnesses, is whether the prosecution is bound to
examine all the listed/cited witnesses. This Court, in
Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954
SC 31, has examined the aforesaid issue and held that
as a general rule, all witnesses must be called upon to
testify in the course of the hearing of the prosecution,
but that there is no obligation compelling the public
prosecutor to call upon all the witnesses available
who can depose regarding the facts that the
prosecution desires to prove. Ultimately, it is a matter
left to the discretion of the public prosecutor, and
though a court ought to and no doubt would take into
consideration the absence of witnesses whose
testimony would reasonably be expected, it must
adjudge the evidence as a whole and arrive at its
conclusion accordingly, taking into consideration the
persuasiveness of the testimony given in the light of
such criticism, as may be levelled at the absence of
possible material witnesses.
15. In Sardul Singh v. State of Bombay, AIR 1957 SC 747,
a similar view has been reiterated, observing that a
court cannot normally compel the prosecution to
examine a witness which the prosecution does not
choose to examine and that the duty of a fair
prosecutor extends only to the extent of examination
of such witnesses, who are necessary for the purpose
76 2024:HHC:16483of disclosing the story of the prosecution with all its
essentials.
16. In Masalti v. the State of U.P., AIR 1965 SC 202, this
Court held that it would be unsound to lay down as a
general rule, that every witness must be examined,
even though the evidence provided by such witness
may not be very material, or even if it is a known fact
that the said witness has either been won over or
terrorised.
In such cases, it is always open to the defence to
examine such witnesses as their own witnesses,
and the court itself may also call upon such a
witness in the interests of justice under Section
540 Cr.P.C.
(See also: Bir Singh & Ors. vs. State of U.P., (1977 (4)
SCC 420)
17. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC
328, this Court reiterated a similar view and held that
if the eye-witness(s) is deliberately kept back, the
Court may draw an inference against the prosecution
and may, in a proper case, regard the failure of the
prosecutor to examine the said witnesses as
constituting a serious infirmity in the proof of the
prosecution case.
18. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156,
this Court held as under:
“10. … Material witnesses considered necessary
by the prosecution for unfolding the
prosecution story alone need to be produced
without unnecessary and redundant
multiplication of witnesses. The appellant’s
counsel has not shown how the prosecution
story is rendered less trustworthy as a result of
the non-production of the witnesses
mentioned by him. No material and important
witness was deliberately kept back by the
prosecution. Incidentally, we may point out
77 2024:HHC:16483that the accused, too, have not considered it
proper to produce those persons as witnesses
for controverting the prosecution version…..”
19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997
SC 2914], this Court reiterated a similar view and
further observed:
“24. … Illustration (g) in Section 114 of the
Evidence Act is only a permissible inference
and not a necessary inference. Unless there are
other circumstances also to facilitate the
drawing of an adverse inference, it should not
be a mechanical process to draw the adverse
inference merely on the strength of non-
examination of a witness even if it is a material
witness…..”
20. In Mohanlal Shamji Soni v. Union of India &Anr.,
AIR 1991 SC 1346, this Court held:
“10. It is a cardinal rule in the law of evidence
that the best available evidence should be
brought before the Court to prove a fact or the
points in issue. But it is left either for the
prosecution or for the defence to establish its
respective case by adducing the best available
evidence and the Court is not empowered under
the provisions of the Code to compel either the
prosecution or the defence to examine any
particular witness or witnesses on their sides.
Nonetheless, if either of the parties withholds
any evidence which could be produced and
which, if produced, be unfavourable to the
party withholding such evidence, the Court can
draw a presumption under illustration (g) to
Section 114 of the Evidence Act.
.. In order to enable the Court to find out the
truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section
311 of the new Code) are enacted whereunder
78 2024:HHC:16483any Court by exercising its discretionary
authority at any stage of enquiry, trial or
another proceeding can summon any person as
a witness or examine any person in attendance
though not summoned as a witness or recall or
re-examine any person in attendance though
not summoned as a witness or recall and re-
examine any person already examined who are
expected to be able to throw light upon the
matter in dispute; because if judgments happen
to be rendered on inchoate, inconclusive and
speculative presentation of facts, the ends of
justice would be defeated.”
21. In Banti @ Guddu v. State of M.P. AIR 2004 SC 261,
this Court held:
“12. In trials before a Court of Session, the
prosecution “shall be conducted by a Public
Prosecutor”. Section 226 of the Code of
Criminal Procedure, 1973 enjoins him to open
up his case by describing the charge brought
against the accused. He has to state what
evidence he proposes to adduce for proving the
guilt of the accused…….If that version is not in
support of the prosecution case, it would be
unreasonable to insist on the Public Prosecutor
to examine those persons as witnesses for the
prosecution.
13. When the case reaches the stage envisaged
in Section 231 of the Code, the Sessions Judge is
obliged “to take all such evidence as may be
produced in support of the prosecution”. It is
clear from the said section that the Public
Prosecutor is expected to produce evidence “in
support of the prosecution” and not in
derogation of the prosecution case. At the said
stage, the Public Prosecutor would be in a
position to take a decision as to which among
the presences cited are to be examined. If there
79 2024:HHC:16483are too many witnesses on the same point, the
Public Prosecutor is at liberty to choose two or
some among them alone so that the time of the
Court can be saved from repetitious depositions
on the same factual aspects…….This will help
not only the prosecution in relieving itself of
the strain of adducing repetitive evidence on
the same point but also help the Court
considerably in lessening the workload. The
time has come to make every effort possible to
lessen the workload, particularly those courts
crammed with cases, but without impairing the
cause of justice.
14. It is open to the defence to cite him and
examine him as a defence witness.”
22. The said issue was also considered by this Court in
R. Shaji (supra), and the Court, after placing reliance
upon its judgments in Vadivelu Thevar v. State of
Madras; AIR 1957 SC 614; and Kishan Chand v. State of
Haryana JT 2013 (1) SC 222, held as under:
“22. In the matter of appreciation of evidence
of witnesses, it is not the number of witnesses
but the quality of their evidence that is
important, as there is no requirement in the
law of evidence stating that a particular
number of witnesses must be examined to
prove/disprove a fact. It is a time-honoured
principle that evidence must be weighed and
not counted. The test is whether the evidence
has a ring of truth, is cogent, credible,
trustworthy, or otherwise. The legal system has
laid emphasis on the value provided by each
witness, as opposed to the multiplicity or
plurality of witnesses. It is, thus, the quality
and not quantity which determines the
adequacy of evidence, as has been provided by
Section 134 of the Evidence Act. Where the law
requires the examination of at least one
80 2024:HHC:16483attesting witness, it has been held that the
number of witnesses produced over and above
this does not carry any weight.”
23. Thus, the prosecution is not bound to examine all
the cited witnesses, and it can drop witnesses to
avoid multiplicity or plurality of witnesses. The
accused can also examine the cited, but not
examined, witnesses, if he so desires, in his defence.
It is the discretion of the prosecutor to tender the
witnesses to prove the case of the prosecution, and
“the court will not interfere with the exercise of that
discretion unless, perhaps, it can be shown that the
prosecution has been influenced by some oblique
motive.” In an extraordinary situation, if the court
comes to the conclusion that a material witness has
been withheld, it can draw an adverse inference
against the prosecution, as has been provided under
Section 114 of the Evidence Act. Undoubtedly, the
public prosecutor must not take the liberty to “pick
and choose” his witnesses, as he must be fair to the
court and, therefore, to the truth. In a given case, the
Court can always examine a witness as a court
witness if it is so warranted in the interests of justice.
The evidence of the witnesses must be tested on the
touchstone of reliability, credibility and
trustworthiness. If the court finds the same to be
untruthful, there is no legal bar for it to discard the
same.
54. This position was reiterated in Rajesh Yadav v.
State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150,
wherein it was observed at page 224: –
Non-examination of witness
34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the
81 2024:HHC:16483witnesses and their importance. If the court is
satisfied with the explanation given by the
prosecution, along with the adequacy of the
materials sufficient enough to proceed with the trial
and convict the accused, there cannot be any
prejudice. Similarly, if the court is of the view that the
evidence is not screened and could well be produced
by the other side in support of its case, no adverse
inference can be drawn. The onus is on the part of the
party who alleges that a witness has not been
produced deliberately to prove it.
35. The aforesaid settled principle of law has been
laid down in Sarwan Singh v. State of Punjab [Sarwan
Singh v. State of Punjab, (1976) 4 SCC 369: 1976 SCC
(Cri) 646]: (SCC pp. 377-78, para 13)
“13. Another circumstance which appears to have
weighed heavily with the Additional Sessions
Judge was that no independent witness of
Salabatpura had been examined by the
prosecution to prove the prosecution case of
assault on the deceased, although the evidence
shows that there were some persons living in that
locality like the “pakodewalla”, hotelwalla,
shopkeeper and some of the passengers who had
alighted at Salabatpura with the deceased. The
Additional Sessions Judge has drawn an adverse
inference against the prosecution for its failure to
examine any of those witnesses. Mr Hardy has
adopted this argument. In our opinion, the
comments of the Additional Sessions Judge are
based on a serious misconception of the correct
legal position. The onus of proving the prosecution
case rests entirely on the prosecution, and it follows
as a logical corollary that the prosecution has
complete liberty to choose its witnesses if it is to prove
its case. The court cannot compel the prosecution to
examine one witness or the other as its witness. At the
most, if a material witness is withheld, the court may
82 2024:HHC:16483draw an adverse inference against the prosecution.
But it is not the law that the omission to examine any
and every witness, even on minor points, would
undoubtedly lead to rejection of the prosecution case
or drawing of an adverse inference against the
prosecution. The law is well-settled that the
prosecution is bound to produce only such witnesses
as are essential for the unfolding of the prosecution
narrative. In other words, before an adverse inference
against the prosecution can be drawn, it must be
proved to the satisfaction of the court that the
witnesses who had been withheld were eyewitnesses
who had actually seen the occurrence and were,
therefore, material to prove the case. It is not
necessary for the prosecution to multiply witness after
witness on the same point; it is the quality rather
than the quantity of the evidence that matters. In the
instant case, the evidence of the eyewitnesses
does not suffer from any infirmity or any manifest
defect on its intrinsic merit. Secondly, there is
nothing to show that at the time when the
deceased was assaulted, a large crowd had
gathered, and some of the members of the crowd
had actually seen the occurrence and were cited as
witnesses for the prosecution and then withheld.
We must not forget that in our country; there is a
general tendency amongst the witnesses in
mofussil to shun giving evidence in courts because
of the cumbersome and dilatory procedure of our
courts, the harassment to which they are
subjected by the police and the searching cross-
examination which they have to face before the
courts. Therefore, nobody wants to be a witness in
a murder or any serious offence if he can avoid it.
Although the evidence does show that four or five
persons had alighted from the bus at the time
when the deceased and his companions got down
from the bus, there is no suggestion that any of
those persons stayed on to witness the occurrence.
83 2024:HHC:16483
They may have proceeded to their village
homes.”(emphasis supplied)
36. This Court has reiterated the aforesaid principle
in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State
of Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195]: (SCC
pp. 410-11, para 19)
“19. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses but
the quality of their evidence which is important,
as there is no requirement under the Law of
Evidence that any particular number of witnesses
is to be examined to prove/disprove a fact. It is a
time-honoured principle that evidence must be
weighed and not counted. The test is whether the
evidence has a ring of truth, is cogent, credible,
trustworthy or otherwise. The legal system has
laid emphasis on the value provided by each
witness rather than the multiplicity or plurality of
witnesses. It is quality and not quantity, which
determines the adequacy of evidence, as has been
provided by Section 134 of the Evidence Act. Even
in probate cases, where the law requires the
examination of at least one attesting witness, it
has been held that the production of more
witnesses does not carry any weight. Thus, a
conviction can even be based on the testimony of a
sole eyewitness if the same inspires confidence.
(Vide Vadivelu Thevar v. State of Madras [Vadivelu
Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC
614], Kunju v. State of T.N. [Kunju v. State of T.N.,
(2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin
Kumar Mondal v. State of W.B. [Bipin Kumar
Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2
SCC (Cri) 150], Mahesh v. State of
M.P. [Mahesh v. State of M.P., (2011) 9 SCC 626 :
(2011) 3 SCC (Cri) 783], Prithipal Singh v. State of
Punjab [Prithipal Singh v. State of Punjab, (2012) 1
SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan
84 2024:HHC:16483Chand v. State of Haryana [Kishan Chand v. State of
Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri)
807].)”
55. Thus, no adverse inference can be drawn for not
examining all the prosecution witnesses.
56. In the present case, the prosecution had
examined two independent witnesses, Rajpal (PW-1) and
Jaspal (PW-2) and two official witnesses, HC Bhag Singh
(PW-3) and SI/SHO Yog Raj (PW-14). Their evidence was
credible. The other witnesses would have repeated what was
told by the witnesses who were examined in the Court, and
their examination would not have added to anything. Thus,
the prosecution cannot be discarded because other witnesses
were not examined by the prosecution.
57. It was submitted that a huge traffic jam would
have resulted if the vehicles were stopped on the National
Highway. There was no traffic jam; therefore, the
prosecution’s case that the police had intercepted the
vehicle of the accused and carried out the search is not
acceptable. This submission is not acceptable. HC Bhag
Singh (PW-3) stated in his cross-examination that if each
vehicle was stopped on the highway for 3-4 minutes, there
85 2024:HHC:16483would be a traffic jam, but he clarified that it would not
happen if vehicles were separately checked on the roadside.
His statement shows that it was possible to search the
vehicle on the roadside without causing a traffic jam. Jaspal
(PW-2) stated that the vehicle was checked on the roadside.
Thus, there would have been no traffic jam and the
submission that since there was no traffic jam, the
prosecution case is suspect cannot be accepted.
58. It was submitted that the defence version is made
probable by the photographs in which eucalyptus trees are
visible. The police officials admitted that eucalyptus trees
exist on the compound of the Police Station. This shows that
the investigation was not conducted on the spot but on the
compound of the Police Station. This submission is not
acceptable. This Court is not an expert in determining the
descriptions of trees, but it appears from the photographs
available on record that the pine trees are visible in them.
Further, even if the eucalyptus trees are visible, Yog Raj
(PW-14) stated in his cross-examination that eucalyptus
trees also existed on the spot. Hence, the photographs do
not falsify the prosecution’s version that the vehicle was
86 2024:HHC:16483apprehended on the spot or the investigation was conducted
on the spot.
59. It was submitted that the photographs that were
taken on record are inadmissible because a Certificate under
Section 65B of the Indian Evidence Act was not placed on
record. This submission will not help the defence. The
defence itself is referring to the photograph to cast doubt on
the prosecution’s case, and it is difficult to see how the
defence can raise the argument that photographs are
inadmissible and, at the same time, that the photographs
demolish the prosecution’s case. If the photographs are
inadmissible, they cannot be looked into on behalf of the
prosecution or on behalf of the defence as well. Thus, this
argument will not help the accused.
60. It was submitted that Tehsildar was a
government officer who was interested in the success of the
case. This submission cannot be accepted. Tehsildar is an
Executive Magistrate and an independent person. Nothing
has been brought out in the cross-examination to show that
he has an interest in supporting the prosecution case or
87 2024:HHC:16483deposing against the defence. Hence, this submission that
he is an interested person is not acceptable.
61. It was submitted that call detail records of the
accused person’s tower location of their mobile phone were
not brought on record to establish the prosecution case.
Tower location would have been corroborative evidence, but
when the testimonies of prosecution witnesses are found to
be credible and corroborating each other in material
particulars, the absence of the call detail records and tower
location will not make the prosecution case suspect.
62. It was submitted that the four polythene packets
were smelling neutral, whereas one had a pungent smell.
This casts doubt on the prosecution’s case. This submission
is not acceptable. The witnesses stated that the contents of
four polythene packets were transferred to the fifth. Hence,
only the fifth packet would smell of the charas, and the
remaining four packets would lose the smell with time.
Thus, nothing much can be made of this fact.
63. The testimonies of prosecution witnesses
corroborated each other. The statement of Rajpal, who had
88 2024:HHC:16483tried to support the defence by resiling from his earlier
statement, also admitted the prosecution case. The
prosecution witnesses categorically denied the defence of
the accused that the accused were apprehended on the
previous night. The accused claimed that a false case was
made against them to shield the real culprits; however, no
reason was assigned as to why the police official would
conspire with the Tehsildar and Rajpal (PW-1) to make a
false case against the accused. Nothing was suggested to
them in their cross-examination, and no such explanation
was provided in their statement recorded under Section 313
of Cr.P.C. Therefore, the learned Trial Court had rightly
discarded the defence version and accepted the prosecution
version that the police had stopped the vehicle bearing
registration No.HR10L-8800, in which accused Sanjay
Kumar @ Sonu and Jasmer Singh were travelling, and from
which 1 kg 394 grams of black sticks were recovered. Both
the accused were travelling in the same vehicle and,
therefore, they would be deemed to be in possession. In
Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri)
1664: 2003 SCC OnLineSC 874, the contraband was recovered
89 2024:HHC:16483from a vehicle, and it was held that all the occupants of the
vehicle would be in conscious possession of the contraband.
It was observed:
“19. Whether there was conscious possession has to
be determined with reference to the factual backdrop.
The facts which can be culled out from the evidence
on record are that all the accused persons were
travelling in a vehicle, and as noted by the trial court,
they were known to each other, and it has not been
explained or shown as to how they travelled together
from the same destination in a vehicle which was not
a public vehicle.
20. Section 20(b) makes possession of contraband
articles an offence. Section 20 appears in Chapter IV
of the Act, which relates to offences for possession of
such articles. It is submitted that in order to make the
possession illicit, there must be conscious
possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element, i.e.
conscious possession and not mere custody without
awareness of the nature of such possession, Section
20 is not attracted.
22. The expression “possession” is a polymorphous
term which assumes different colours in different
contexts. It may carry different meanings in
contextually different backgrounds. It is impossible,
as was observed in Supdt. & Remembrancer of Legal
Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274:
1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a
completely logical and precise definition of
“possession” uniformly applicable to all situations in
the context of all statutes.
90 2024:HHC:16483
23. The word “conscious” means awareness about a
particular fact. It is a state of mind which is
deliberate or intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2
SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756],
possession in a given case need not be physical
possession but can be constructive, having power and
control over the article in the case in question, while
the person to whom physical possession is given
holds it subject to that power or control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561:
1973 AC 498 : (1972) 2 WLR 1306 (HL)] ). In an
interesting case, it was observed that where a person
keeps his firearm in his mother’s flat, which is safer
than his own home, he must be considered to be in
possession of the same. (See Sullivan v. Earl of
Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2
WLR 361 (QBD)] .)
26. Once possession is established, the person who
claims that it was not a conscious possession has to
establish it because how he came to be in possession
is within his special knowledge. Section 35 of the Act
gives a statutory recognition of this position because
of the presumption available in law. Similar is the
position in terms of Section 54, where also
presumption is available to be drawn from
possession of illicit articles.
27. In the factual scenario of the present case, not
only possession but conscious possession has been
established. It has not been shown by the accused-
appellants that the possession was not conscious in
the logical background of Sections 35 and 54 of the
Act.”
64. It was laid down by the Hon’ble Supreme Court in
Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100:
91 2024:HHC:16483
(2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 that a person
is in possession if he is in a position to exercise control over
the article. It was observed on page 111:
“25. We shall deal with each of these circumstances
in turn. The respondent has been accused of an
offence under Section 8 of the NDPS Act, which is
punishable under Sections 21, 27-A, 29, 60(3) of the
said Act. Section 8 of the Act prohibits a person from
possessing any narcotic drug or psychotropic
substance. The concept of possession recurs in
Sections 20 to 22, which provide for punishment for
offences under the Act. In Madan Lal v. State of
H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003
SCC (Cri) 1664] this Court held that: (SCC p. 472, paras
19-23 & 26)“19. Whether there was conscious possession has
to be determined with reference to the factual
backdrop. The facts which can be culled out from
the evidence on record are that all the accused
persons were travelling in a vehicle, and as noted
by the trial court, they were known to each other,
and it has not been explained or shown as to how
they travelled together from the same destination
in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband
articles an offence. Section 20 appears in Chapter
IV of the Act, which relates to offences for
possession of such articles. It is submitted that in
order to make the possession illicit, there must be
a conscious possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element, i.e.
conscious possession and not mere custody
92 2024:HHC:16483without awareness of the nature of such
possession, Section 20 is not attracted.
22. The expression “possession” is a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. It is impossible, as was observed
in Supt. & Remembrancer of Legal Affairs,
W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer
of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4
SCC 274: 1979 SCC (Cri) 1038] to work out a
completely logical and precise definition of
“possession” uniform[ly] applicable to all
situations in the context of all statutes.
23. The word “conscious” means awareness about
a particular fact. It is a state of mind which is
deliberate or intended.
***
26. Once possession is established, the person who
claims that it was not a conscious possession has
to establish it because how he came to be in
possession is within his special knowledge.
Section 35 of the Act gives a statutory recognition
of this position because of the presumption
available in law. Similar is the position in terms of
Section 54 where also presumption is available to
be drawn from possession of illicit articles.”
26. What amounts to “conscious possession” was
also considered in Dharampal Singh v. State of Punjab
[Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :
(2010) 3 SCC (Cri) 1431], where it was held that the
knowledge of possession of contraband has to be
gleaned from the facts and circumstances of a case.
The standard of conscious possession would be
different in the case of a public transport vehicle with
several persons as opposed to a private vehicle with a
93 2024:HHC:16483
few persons known to one another. In Mohan Lal v.
State of Rajasthan [Mohan Lal v. State of Rajasthan,
(2015) 6 SCC 222: (2015) 3 SCC (Cri) 881], this Court
also observed that the term “possession” could mean
physical possession with animus; custody over the
prohibited substances with animus; exercise of
dominion and control as a result of concealment; or
personal knowledge as to the existence of the
contraband and the intention based on this
knowledge.”
65. In the present case, the accused did not lead any
evidence to show that their possession was not conscious,
and the learned Trial Court was justified in holding that the
possession of the accused was duly proved.
66. The case property was deposited with HC Ram
Pal (PW-5), who was officiating as MHC in the absence of
regular MHC Naginder Singh (PW-9). He and Naginder
Singh stated that the case property remained intact till it
remained in their custody. Their version is duly
corroborated by the certificate issued by the Judicial
Magistrate, First Class, Bilaspur, H.P., certifying the
correctness of the inventory(Ext.PW-11/A). The Magistrate
resealed the parcels with seven seals of seal impression
JMIC, Bilaspur and the remaining 1.322 Kg with three seal
94 2024:HHC:16483
impressions of seal JMIC-Bilaspur. The result of analysis
(Ext. PW-9/A) mentions that the parcel was sealed with six
seal impressions of seal “H” and three seal impressions of
seal JMIC Bilaspur (H.P.), and one cloth parcel (Mark- A)
was sealed with seven seal impressions of JMIC-Bilapsur,
(H.P.) The seals were intact and tallied with specimen seals
sent by the forwarding authority and seal impression of “H”
impressed on forms NCB-I. This report shows that the case
property was intact, and there was no tampering with the
seals. It was held in Baljit Sharma vs. State of H.P 2007 HLJ
707, that where the report of analysis shows that the seals
were intact, the case of the prosecution that the case
property remained intact is to be accepted as correct. It was
observed:
“A perusal of the report of the expert Ex.PW8/A
shows that the samples were received by the expert
in a safe manner, and the sample seal separately
sent tallied with the specimen impression of a seal
taken separately. Thus, there was no tampering with
the seal, and the seal impressions were separately
taken and sent to the expert also.”
67. Similar is the judgment in Hardeep Singh vs State
of Punjab 2008(8) SCC 557, wherein it was held:
95 2024:HHC:16483
“It has also come on evidence that till the date the
parcels of the sample were received by the Chemical
Examiner, the seal put on the said parcels was intact.
That itself proves and establishes that there was no
tampering with the previously mentioned seal in the
sample at any stage, and the sample received by the
analyst for chemical examination contained the
same opium, which was recovered from the
possession of the appellant. In that view of the
matter, a delay of about 40 days in sending the
samples did not and could not have caused any
prejudice to the appellant.”
68. In State of Punjab vs Lakhwinder Singh 2010 (4)
SCC 402, the High Court had concluded that there could have
been tampering with the case property since there was a
delay of seven days in sending the report to FSL. It was laid
down by the Hon’ble Supreme Court that case property was
produced in the Court, and there was no evidence of
tampering. Seals were found to be intact, which would rule
out the possibility of tampering. It was observed:
“The prosecution has been able to establish and
prove that the aforesaid bags, which were 35 in
number, contained poppy husk, and accordingly, the
same were seized after taking samples therefrom
which were properly sealed. The defence has not been
able to prove that the aforesaid seizure and seal put in
the samples were in any manner tampered with
before it was examined by the Chemical Examiner.
There was merely a delay of about seven days in
sending the samples to the Forensic Examiner, and it
is not proved as to how the aforesaid delay of seven
96 2024:HHC:16483days has affected the said examination when it could
not be proved that the seal of the sample was in any
manner tampered with. The seal having been found
intact at the time of the examination by the Chemical
Examiner and the said fact having been recorded in
his report, a mere observation by the High Court that
the case property might have been tampered with, in
our opinion, is based on surmises and conjectures
and cannot take the place of proof.
17. We may at this stage refer to a decision of this
Court in Hardip Singh v. State of Punjab reported in
(2008) 8 SCC 557 in which there was a delay of about
40 days in sending the sample to the laboratory after
the same was seized. In the said decision, it was held
that in view of cogent and reliable evidence that the
opium was seized and sealed and that the samples
were intact till they were handed over to the Chemical
Examiner, the delay itself was held to be not fatal to
the prosecution case. In our considered opinion, the
ratio of the aforesaid decision squarely applies to the
facts of the present case in this regard.
18. The case property was produced in the Court, and
there is no evidence to show that the same was ever
tampered with.”
69. Similar is the judgment of the Hon’ble Supreme
Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563,
wherein it was held:-
10. According to learned senior counsel for the
appellant, Joginder Singh, ASI, to whom Yogi Raj,
SHO (PW-3) handed over the case property for
producing the same before the Illaqa Magistrate and
who returned the same to him after such production
was not examined, as such, link evidence was
incomplete. In this regard, it is to be noticed that Yogi
Raj SHO handed over the case property to Joginder
97 2024:HHC:16483Singh, ASI, for production before the Court. After
producing the case property before the Court, he
returned the case property to Yogi Raj, SHO (PW-3),
with the seals intact. It is also to be noticed that
Joginder Singh, ASI, was not in possession of the
seals of either the investigating officer or Yogi Raj,
SHO. He produced the case property before the Court
on 13.09.1996 vide application Ex.P-13, the concerned
Judicial Magistrate of First Class, after verifying the
seals on the case property, passed the order Ex.P-14
to the effect that since there was no judicial malkhana
at Abohar, the case property was ordered to be kept in
safe custody, in Police Station Khuian Sarwar till
further orders. Since Joginder Singh, ASI, was not in
possession of the seals of either the SHO or the
Investigating Officer, the question of tampering with
the case property by him did not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate,
with the seals intact, to Yogi Raj, SHO. In that view of
the matter, the Trial Court and the High Court have
rightly held that the non-examination of Joginder
Singh did not, in any way, affect the case of the
prosecution. Further, it is evident from the report of the
Chemical Examiner, Ex.P-10, that the sample was
received with seals intact and that the seals on the
sample tallied with the sample seals. In that view of the
matter, the chain of evidence was complete.” (Emphasis
supplied)
70. Therefore, the prosecution version is to be
accepted as correct that the case property remained intact
till its analysis at FSL, Junga.
71. It was submitted that Tehsildar Jaspal (PW-2)
had not produced the seal before the Court, and the same is
98 2024:HHC:16483
fatal to the prosecution case. This submission is not
acceptable. It is not necessary for a witness to produce the
seal before the Court as sample seal impression “H”
(Ext.PW-1/D), seal impression “H” on NCB Form
(Ext.PW-2/A) were available on record for comparison. It
was laid down by the Hon’ble Supreme Court in Varinder
Kumar Versus State of H.P. 2019 (3) SCALE 50 that failure to
produce the seal in the Court is not fatal. It was observed:-
“6. We have considered the respective submissions.
PW10 is stated to have received secret information at
2.45 P.M. on 31.03.1995. He immediately reduced it
into writing and sent the same to PW8, Shri Jaipal
Singh, Dy.S.P., C.I.D., Shimla. At 3.05 P.M. PW7, Head
Constable Surender Kumar stopped PW5, Naresh
Kumar and another independent witness, Jeevan
Kumar, travelling together, whereafter the appellant
was apprehended at 3.30 P.M. with two Gunny Bags
on his Scooter, which contained varying quantities of
‘charas’. PW8, Shri Jaipal Singh, Dy.S.P., C.I.D.,
Shimla, who had arrived by then, gave notice to the
appellant and obtained his consent for carrying out
the search. Two samples of 25 gms. Each were taken
from the two Gunny Bags and sealed with the seal ‘S’
and given to PW5. PW2, Jaswinder Singh, the
Malkhana Head Constable, resealed it with the seal
‘P’. The conclusion of the Trial Court that the seal had
not been produced in the Court is, therefore, perverse
in view of the two specimen seal impressions having
been marked as Exhibits PH and PK. It is not the case
of the appellant that the seals were found tampered
with in any manner.”
99 2024:HHC:16483
72. It was specifically held in Virender Kumar (supra)
that when the sample seals were produced before the Court,
the conclusion of the Trial Court that seals were produced
before the Court was perverse.
73. The learned Trial Court noticed while examining
Rajpal (PW-1) that seals were intact on the parcels. Thus,
the learned Trial Court had satisfied itself with the
correctness and integrity of the seal. Hence, the submission
of the learned defence counsel that the seal was not
produced before the learned Trial Court and the prosecution
case is to be discarded is not acceptable.
74. It was submitted that Yog Raj (PW-14) did not
comply with the requirement of Section 55 of the NDPS Act
because the case property was not resealed in the present
case. This is fatal to the prosecution case. This submission is
not acceptable. It was laid down by this Court in Prem
Bahadur Vs State of H.P., 2009 (1) Shim. L.C. 65, that the
provisions of Sections 52 and 55 are not mandatory and
directory. When the investigating officer was the SHO and he
had not resealed the case property, believing that since he
100 2024:HHC:16483
was SHO and there was no such requirement, it was not
sufficient to acquit the accused. It was observed:-
“12. From a perusal of the aforesaid two judgments, it
is apparent that the provisions of Sections 52 and 55
are not mandatory but only directory. If there is
substantial compliance with the same, the accused
cannot be acquitted. If there are sufficient reasons for
non-compliance of the Sections, then also the
accused cannot claim the benefit of acquittal under
these provisions. At best, the Court may have to
scrutinise the prosecution evidence with greater care
and caution.
13. In the present case, the recovery of the Charas has
been proved beyond a reasonable doubt. We cannot
lose sight of the fact that the investigating officer,
PW6, was also the SHO of the Police Station, Manali.
He presumed that he was the in-charge of the police
station and, therefore, provisions of Sections 52 and
55 were not applicable to him. At best, it can be
presumed that when he was the investigating officer,
some other police officer must be deemed to be in
charge of the police station. At best, we can presume
that MHC Khem Chand (PW 2) was the in-charge of
the police station. However, even if we presume that
MHC Khem Chand (PW 2) was the in-charge of the
police station, then the mere non-compliance of
Sections 52 and 55 by not putting the seal on the
sample would not by itself be a ground to acquit the
accused.”
75. The prosecution has also complied with the
requirement of Section 57 of the NDPS Act ina much as the
Special Report (Ext.PW-7/A) was sent to Dy. S.P. Baldev
Dutt,who handed it over to his reader Kuldeep Singh (PW-7)
101 2024:HHC:16483
on 13.09.2016. The statement of Kuldeep Singh (PW-7) is
duly corroborated by the entry made in the register
(Ext.PW-7/B), and there is nothing in the cross-
examination of Kuldeep Singh to doubt his testimony.
76. Thus, the learned Trial Court had rightly held
that the prosecution version proved beyond reasonable
doubt that the accused, Sanjay Kumar @ Sonu and Jasmer
Singh, were found in possession of 1 kg and 394 grams of
Charas. They failed to produce any document authorising
their possession, and they were righty held guilty for the
commission of an offence punishable under Section
20(b)(ii)(C) of the NDPS Act.
77. The learned Trial Court sentenced each of the
accused to undergo rigorous imprisonment for 10 years and
was directed to pay a fine of ₹1,00,000/- each, which is a
minimum sentence and no interference is required with it.
78. No other point was urged.
79. In view of the above, the present appeal fails, and
the same is dismissed.
102 2024:HHC:16483
80. A copy of this judgment along with the record of
the learned Trial Court be sent back forthwith. Pending
applications, if any, also stand disposed of.
(Vivek Singh Thakur)
(Judge)
(Rakesh Kainthla)
Judge
30th December, 2024
(ravinder)