Himachal Pradesh High Court
State Of Himachal Pradesh vs Raju Ram on 14 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:11339-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 196 of 2015
Reserved on: 05.11.2024
Date of Decision: 14.11.2024
State of Himachal Pradesh …Appellant.
Versus
Raju Ram ...Respondent.
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant/State: Mr. Varun Chandel, Additional
Advocate General.
For the Respondent : Mr Ritta Goswami, Senior Advocate
with Ms Komal Chaudhary, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 05.12.2014 passed by learned Special Judge, Kinnaur,
Sessions Division at Rampur Bushahr (learned Trial Court), vide
which the respondent (accused before learned Trial Court) was
acquitted of the commission of an offence punishable under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act
(in short ‘ND&PS Act’). (Parties shall hereinafter be referred to in the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
Neutral Citation No. ( 2024:HHC:11339-DB )
same manner as they were arrayed before the learned Trial Court for
convenience).
2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan against the accused before
the learned Trial Court for the commission of an offence
punishable under Section 20 of the ND&PS Act. It was asserted that
SI Raj Kumar (PW9), HC Mohinder Singh (PW2), HHC Lachman
Dass, and Constable Jai Singh (PW1) were present at Shamshar
Chowk in the official vehicle bearing registration No. HP34A-3830
being driven by Constable Mukesh Kumar on 02.07.2013. The
accused came towards Shamshar Chowk at 4 am. He returned after
seeing the police and tried to run away. SI Raj Kumar (PW9)
apprehended the accused based on suspicion. The accused revealed
his name as Raju Ram on enquiry. The accused was carrying a
backpack (Ext. P2). The place was lonely and deserted. The police
waited for the independent witnesses but none came. Hence, the
police officials were associated as witnesses. SI Raj Kumar (PW9)
informed the accused that he had a legal right to be searched
before a Magistrate or the Gazetted Officer. The accused consented
to be searched by the police. A consent memo (Ext.PW-1/A) was
prepared. SI Raj Kumar (PW9) gave his personal search to the
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Neutral Citation No. ( 2024:HHC:11339-DB )
accused, nothing incriminating was found in his possession. Memo
(Ext. PW-1/B) was prepared. The police checked the backpack and
found black spheres in it. The accused revealed that spheres
(Ext.P3) were charas. SI Raj Kumar (PW9) also checked the spheres
and found them to be charas. The weight of charas was found to be
1 kg 700 grams. The charas was put in the backpack. The backpack
was put in a cloth parcel (Ext.P1) and the parcel was sealed with six
impressions of seal ‘O’. The seal impression (Ext. PW-1/C) was
taken on a separate piece of cloth. NCB-1 Form (Ext. PW-7/C) was
filled in triplicate. A seal impression was put on the NCB-1 Form.
The seal was handed over to Constable Jai Singh (PW-1) after the
use. The charas was seized vide memo (Ext.PW-1/D). SI Raj Kumar
(PW9) prepared a rukka (Ext. PW-9/A) and handed it over to
Constable Jai Singh (PW1) with the directions to carry it to the
Police Station. Constable Jai Singh (PW1) handed over the rukka to
HC Lokender (PW7) who recorded the FIR (Ext. PW-7/F). SI Raj
Kumar (PW9) conducted the investigation on the spot. He prepared
the site plan (Ext. PW-9/B) and recorded the statements of
witnesses as per their version. He arrested the accused. The case
property was deposited with HC Lokinder Singh (PW7) who made
an entry at Sl. No. 332 of Malkhana Register (Ext. PW-7/A) and
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Neutral Citation No. ( 2024:HHC:11339-DB )
deposited the case property in Malkhana. He handed over the case
property, sample seal, and NCB-1 Form to Constable Pritam Singh
(PW3) with the direction to carry them to SFSL Junga, vide R.C. No.
45 of 2013 (Ext. PW-7/B). Constable Pritam Singh (PW3) deposited
all the articles at SFSL Junga and handed over the receipt to HC
Lokinder Singh (PW-7) on his return. SI Raj Kumar (PW9)
prepared the special report (Ext. PW-5/A) and handed it over to
HHC Chande Ram (PW4) with the directions to carry it to SDPO Ani.
HHC Chande Ram (PW-4) handed over the special report on
03.07.2013 to SDPO. SDPO made the endorsement on the special
report and handed it over to his Reader. LHC Bhuvneshwari (PW5)
made the entry in the register (Ext. PW-5/B) and retained the
special report on record. The result of the analysis (Ext. PW-8/A)
was issued in which it was mentioned that the exhibit was an
extract of cannabis and a sample of charas. Statements of the
remaining witnesses were recorded as per their version and after
the completion of investigation, the challan was prepared and
presented before the learned Trial Court.
3. The learned Trial Court charged the accused with the
commission of an offence punishable under Section 20 of the
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Neutral Citation No. ( 2024:HHC:11339-DB )
ND&PS Act, to which the accused pleaded not guilty and claimed to
be tried.
4. The prosecution examined nine witnesses to prove its
case. Constable Jai Singh (PW1), and HC Mohinder Singh (PW2) are
the official witnesses to the recovery. Constable Pritam Singh
(PW3) carried the case property to SFSL, Junga. HHC Chande Ram
(PW4) carried the special report to SDPO Ani. LHC Bhuvneshwari
(PW5) was posted as Reader to SDPO to whom the special report
was handed over. HHC Santosh Kumar (PW6) brought the case
property and the result of analysis from SFSL, Junga. HC Lokinder
Singh (PW7) was posted as MHC to whom the rukka and the case
property were handed over. SHO Rohit Mrigpuri (PW8) conducted
the partial investigation and prepared the chargesheet. SI Raj
Kumar (PW9) effected the recovery and conducted the
investigation.
5. The accused in his statement recorded under Section
313 of Cr.P.C. denied the prosecution case in its entirety. He stated
that he was taken from his home by the police after threatening
him with a revolver. He was innocent. The statement of Chaman
Lal (DW-1) was recorded in defence.
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Neutral Citation No. ( 2024:HHC:11339-DB )
6. The learned Trial Court held that the testimonies of
police officials did not inspire confidence. There were
discrepancies in the statements of the prosecution witnesses due
to which it was difficult to rely upon them. The independent
witnesses were not associated and the contradictions became
significant in their absence. The seal was not produced before the
Court which would further cast doubt upon the prosecution case.
The defence version that the accused was arrested from his home
and brought to the police station was probable, therefore, the
accused was acquitted.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the State has filed the present appeal asserting
that the learned Trial Court failed to properly appreciate the
evidence led before it. The official witnesses had supported the
prosecution case and learned Trial Court erred in ignoring the
testimonies of the official witnesses. Minor contradictions were
blown out of proportion and these were not sufficient to discredit
the statements of the prosecution witnesses. The non-production
of the seal before the Court was not fatal. The accused was
apprehended at a secluded place and no independent witnesses
could have been joined. Therefore, it was prayed that the present
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Neutral Citation No. ( 2024:HHC:11339-DB )
appeal be allowed and the judgment passed by the learned Trial
Court be set aside.
8. We have heard Mr Varun Chandel, learned Additional
Advocate General for the appellant/State and Ms Ritta Goswami,
learned Senior Advocate assisted by Ms Komal Chaudhary, learned
counsel for the respondent/accused.
9. Mr Varun Chandel, learned Additional Advocate General
for the appellant/State submitted that the learned Trial Court erred
in acquitting the accused. The accused was apprehended at 4 AM at
a lonely place and there was no possibility of the association of
independent witnesses. The minor contradictions in the
statements of the official witnesses were not sufficient to discredit
them as the contradictions are bound to come with time. The
non-production of the seal before the Court is not fatal and the
learned Trial Court erred in acquitting the accused on the ground of
non-production of the seal. Hence, he prayed that the present
appeal be allowed. He relied upon the judgments of Sathyan versus
State of Kerala SLP (Crl.) No. 9710/2023 and Sohan Lal vs. State of
Himachal Pradesh Criminal Appeal No. 305 of 2014 decided on
02.11.2016 in support of his submission.
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Neutral Citation No. ( 2024:HHC:11339-DB )
10. Ms Ritta Goswami, learned Senior Advocate for the
respondent/accused supported the judgment passed by the learned
Trial Court. She submitted that the non-association of
independent witnesses is fatal to the prosecution case. There was
non-compliance with the provisions of Section 55 of the ND&PS
Act because the case property was not resealed by the SHO. There is
a discrepancy in the case property stated to be recovered on the
spot and the case property analyzed in the laboratory which
becomes significant in the absence of the seal. The contradictions
were rightly held to be sufficient to discredit the prosecution’s
version. Therefore, she prayed that the present appeal be
dismissed.
11. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. 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
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Neutral Citation No. ( 2024:HHC:11339-DB )
taken by the Trial Court was a possible view, which could 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.
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
10
Neutral Citation No. ( 2024:HHC:11339-DB )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)
‘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 appeals 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
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Neutral Citation No. ( 2024:HHC:11339-DB )
view taken by the learned trial court was a reasonable
view and even if by any stretch of 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] ).
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]).”
13. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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Neutral Citation No. ( 2024:HHC:11339-DB )
14. Constable Jai Singh (PW1), HC Mohinder Singh (PW2)
and SI Raj Kumar (PW9) consistently stated that the police party
was on a patrolling duty at Shamshar Chowk. The accused came
from Gugra towards Shamshar Chowk. He returned after seeing the
police party and tried to run away. Police apprehended him and the
accused was found in possession of the backpack. Thus, it was a
case of chance recovery and the police did not have any prior
information regarding the transportation of charas. While dealing
with a similar case of a chance recovery, it was laid down by the
Hon’ble Supreme Court in Kashmira Singh Versus State of Punjab
1999 (1) SCC 130 that the police party is under no obligation to join
independent witnesses while going on patrolling duty and the
association of any person after effecting the recovery would be
meaningless. It was observed:
“3. Learned counsel for the appellant has taken us through
the evidence recorded by the prosecution as also the
judgment under appeal. Except for the comment that the
prosecution is supported by two police officials and not by
any independent witness, no other comment against the
prosecution is otherwise offered. This comment is not of any
value since the police party was on patrolling duty and they
were not required to take along independent witnesses to
support recovery if and when made. It has come in the
evidence of ASI Jangir Singh that after the recovery had been
effected, some people had passed by. Even so, obtaining
their counter-signatures on the documents already prepared
13
Neutral Citation No. ( 2024:HHC:11339-DB )would not have lent any further credence to the prosecution
version.”
15. In similar circumstances, it was laid down by this Court
in Chet Ram Vs State Criminal Appeal no. 151/2006 decided on
25.7.2018 that when the accused was apprehended after he tried to
flee on seeing the police, there was no necessity to associate any
person from the nearby village. It was observed:-
“(A)appellant was intercepted and search of his bag was
conducted on suspicion, when he turned back and tried to
flee, on seeing the police. Police officials did not have any
prior information nor did they have any reason to believe
that he was carrying any contraband. They overpowered
him when he tried to run away and suspected that he might
be carrying some contraband in his bag. Therefore, the bag
was searched and charas was recovered. After the recovery of
Charas, there was hardly any need to associate any person from
the nearby village, because there remained nothing to be
witnessed.
It is by now well settled that non-association of independent
witnesses or non-supporting of the prosecution version, by
independent witnesses where they are associated, by itself is
not a ground to acquit an accused. It is also well-settled
that the testimony of official witnesses, including police
officials, carries the same evidentiary value as the testimony
of any other person. The only difference is that Courts have
to be more circumspect while appreciating the evidence of
official witnesses to rule out the possibility of false
implication of the accused, especially when such a plea is
specifically raised by the defence. Therefore, while
scrutinizing the evidence of official witnesses, in a case
where independent witnesses are not associated,
contradictions and inconsistencies in the testimony of such
witnesses are required to be taken into account and given
due weightage, unless satisfactorily explained. Of course, it
14
Neutral Citation No. ( 2024:HHC:11339-DB )
is only the material contradictions and not the trivial ones,
which assume significance.” (Emphasis supplied)
16. It was laid down by the Hon’ble Supreme Court of India
in Raveen Kumar v. State of H.P., (2021) 12 SCC 557 that non-
association of the independent witnesses will not be fatal to the
prosecution case. However, the Court will have to scrutinize the
statements of prosecution witnesses carefully. It was observed:
“19. It would be gainsaid that the lack of independent
witnesses is not fatal to the prosecution case. [Kalpnath Rai
vs. State, (1998) AIR SC 201] However, such omissions cast an
added duty on Courts to adopt a greater degree of care while
scrutinising the testimonies of the police officers, which if
found reliable can form the basis of a successful conviction.”
17. This position was reiterated in Rizwan Khan Versus State
of Chhattisgarh (2020) 9 SCC 627, wherein, it was observed:
“8.2 Having gone through the entire evidence on record and
the findings recorded by the courts below, we are of the
opinion that in the present case, the prosecution has been
successful in proving the case against the accused by
examining the witnesses PW3, PW4, PW5, PW7 and PW8. It
is true that all the aforesaid witnesses are police officials and
two independent witnesses who were panchnama witnesses
had turned hostile. However, all the aforesaid police
witnesses are found to be reliable and trustworthy. All of
them have been thoroughly cross-examined by the defence.
There is no allegation of any enmity between the police
witnesses and the accused. No such defence has been taken
in the statement under Section 313, Cr.P.C. There is no law
that the evidence of police officials unless supported by
independent evidence, is to be discarded and/or unworthy of
acceptance.
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Neutral Citation No. ( 2024:HHC:11339-DB )
It is settled law that the testimony of the official witnesses
cannot be rejected on the grounds of non-corroboration by
an independent witness. As observed and held by this Court
in a catena of decisions, examination of independent
witnesses is not an indispensable requirement and such
non-examination is not necessarily fatal to the prosecution
case, [see Pardeep Kumar (supra)].
In the recent decision in the case of Surinder Kumar vs. State
of Punjab, (2020) 2 SCC 563, while considering a somewhat
similar submission of non-examination of independent
witnesses, while dealing with the offence under the NDPS
Act, in paragraphs 15 and 16, this Court observed and held as
under:
“15. The judgment in Jarnail Singh vs. State of Punjab
(2011) 3 SCC 521, relied on by the counsel for the
respondent-State also supports the case of the
prosecution. In the aforesaid judgment, this Court has
held that merely because the prosecution did not
examine any independent witness, would not
necessarily lead to a conclusion that the accused was
falsely implicated. The evidence of official witnesses
cannot be distrusted and disbelieved, merely on
account of their official status.
16. In State (NCT of Delhi) vs. Sunil, (2011) 1 SCC 652, it was
held as under (SCC p. 655)“It is an archaic notion that actions of the police
officer should be approached with initial distrust. It is
time now to start placing at least initial trust in the
actions and the documents made by the police. At any
rate, the court cannot start with the presumption that
the police records are untrustworthy. As a proposition
of law, the presumption should be the other way
around. That official acts of the police have been
regularly performed is a wise principle of presumption
and recognised even by the legislature.”
Applying the law laid down by this Court on the evidence of
police officials/police witnesses to the facts of the case in
hand, referred to hereinabove, we are of the opinion as the
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Neutral Citation No. ( 2024:HHC:11339-DB )
police witnesses are found to be reliable and trustworthy, no
error has been committed by both the courts below in
convicting the accused relying upon the deposition of the
police officials.”
18. Similar is the judgment of this Court in Balwinder Singh
& Anr. Vs State of H.P., 2020 Criminal L.J. 1684, wherein it was held:-
“3. (iii) Learned defence counsel, contended that in the
instant case, no independent witness was associated by the
Investigating Officer, therefore, the prosecution case cannot
be said to have been proved by it in accordance with
provisions of the Act. Learned defence counsel, in support of
his contention, relied upon titled Krishan Chand versus State
of H.P.,2017 4 CriCC 531
3(iii)(d). It is by now well settled that prosecution case
cannot be disbelieved only because the independent
witnesses were not associated.”
19. This position was reiterated in Kallu Khan Vs State of
Rajasthan, AIR 2022 SC 50, wherein it was held: –
“16. The issue raised regarding conviction solely relying
upon the testimony of police witnesses, without procuring
any independent witness, recorded by the two courts, has
also been dealt with by this Court in the case of Surinder
Kumar (supra) holding that merely because independent
witnesses were not examined, the conclusion could not be
drawn that accused was falsely implicated. Therefore, the said
issue is also well-settled and in particular, looking to the facts of
the present case, when the conduct of the accused was found
suspicious and a chance recovery from the vehicle used by him is
made from a public place and proved beyond a reasonable
doubt, the appellant cannot avail any benefit on this issue. In
our view, the concurrent findings of the courts do not call for
interference.”
20. A similar view was taken in Kehar Singh v. State of H.P.,
2024 SCC OnLine HP 2825 wherein it was observed:
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Neutral Citation No. ( 2024:HHC:11339-DB )
16. As regards non-association of the independent
witnesses, it is now well settled that non-association of the
independent witnesses or non-supporting of the
prosecution version by independent witnesses itself is not a
ground for acquittal of Appellants/accused. It is also well
settled that the testimonies of the official witnesses,
including police officials carry the same evidentiary value as
the testimony of any other person. The only difference is
that the Court has to be most circumspect while appreciating
the evidence of the official witnesses to rule out the
possibility of false implication of the accused, especially
when such a plea is specifically raised by the defence.
Therefore, while scrutinising the evidence of the official
witnesses, in cases where independent witnesses are not
associated, contradictions and inconsistencies in the
testimonies of such witnesses are required to be taken into
account and given due weightage, unless satisfactorily
explained. However, the contradiction must be material and
not trivial one, that alone would assume significance.
17. Evidently, this is a case of chance recovery, therefore, the
police party was under no obligation to join independent
witnesses while going on patrolling duty and the association
of any person after effecting the recovery would be
meaningless.
Xxxx
19. A similar reiteration of law can be found in the judgment
rendered by the learned Single Judge of this Court in Avtar @
Tarri v. State of H.P., (2022) Supreme HP 345, wherein it was
observed as under: —
“24. As regards the second leg of the argument raised by
learned counsel for the appellant, it cannot be said to be
of much relevance in the given facts of the case. The fact
situation was that the police party had laid the ‘nakka’
and immediately thereafter had spotted the appellant at
some distance, who got perplexed and started walking
back. The conduct of the appellant was sufficient to raise
suspicion in the minds of police officials. At that stage,
had the appellant not been apprehended immediately,
police could have lost the opportunity to recover the
18
Neutral Citation No. ( 2024:HHC:11339-DB )contraband. Looking from another angle, the relevance of
independent witnesses could be there, when such
witnesses were immediately available or had already been
associated at the place of ‘nakka’. These, however, are
not mandatory conditions and will always depend on the
fact situation of each and every case. The reason is that
once the person is apprehended and is with police, a
subsequent association of independent witnesses, may
not be of much help. In such events, the manipulation, if
any, cannot be ruled out.”
Xxxx
22. A similar reiteration of law can be found in a very recent
judgment of the Coordinate Bench of this Court in Cr. A. No.
202 of 2020, titled Dillo Begum v. State of H.P., decided on
27.03.2024.”
21. Thus, in view of the binding precedents of this Court
and Hon’ble Supreme Court, the non-association of independent
witnesses is not fatal and the prosecution case cannot be discarded
due to the non-association of independent witnesses. However, the
Court will have to carefully scrutinize the testimonies of the police
officials.
22. When the testimonies of the police officials are
carefully seen, the following contradictions emerge:-
i) Constable Jai Singh (PW1) stated that they started from the
Police Station Ani at 12:00 AM midnight, HC Mohinder Singh
(PW2) stated that they had departed from the police station
Ani after midnight and he did not remember where he was
on that night from 10 PM to 12 midnight. SI Raj Kumar
(PW9) stated that they proceeded from the police station Ani
at 10 PM on 01.07.2013. The entry in the daily diary (Ext. PW-
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Neutral Citation No. ( 2024:HHC:11339-DB )
7/E) mentions that the police party had left the police
station at 22:00 hours.
ii) Constable Jai Singh (PW1) stated that the police party had
not gone to Brad. Although the Brad was located at a
distance of 2 km towards Luhri from Ani. HC Mohinder
Singh (PW2) stated that they had not gone to village Brard.
SI Raj Kumar (PW9) stated that they had patrolled at village
Brad, old Bus-stand Ani, new bus stand Ani and thereafter
went to Shamshar Chowk. HC Mohinder Singh (PW2) and
Constable Jai Singh (PW1) were with him when they went
towards Brad.
iii) Constable Jai Singh (PW1) stated that 1-2 vehicles had
passed through Shamshar Chowk during the naka, HC
Mohinder Singh (PW2) stated that no naka was set up
between Police Station Ani and Shamshar Chowk. A few
vehicles had crossed Shamshar Chowk after setting up naka.
SI Raj Kumar (PW9) stated that some vehicles had crossed
the police party which were stopped and checked by the
police.
iv) Constable Jai Singh (PW1) stated that the police had a
torch with them and there was one bulb in a shop. HC
Mohinder Singh (PW2) also stated that police had a torch
with them and there was one bulb at the spot. SI Raj Kumar
(PW9) stated that the police had a searchlight. They had
switched on the light of the police vehicle and there was one
bulb in a shop.
23. It was laid down by the Hon’ble Supreme Court in
Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC
OnLine SC 756 that the evidence of the prosecution must be tested
for its inherent consistency: consistency with the account of other
witnesses and consistency with undisputed facts. It was observed:
“21. …. Witnesses, as Bentham said, are the eyes and ears of
justice. Hence the importance and primacy of the quality of
the trial process. Eyewitnesses’ accounts would require a
20
Neutral Citation No. ( 2024:HHC:11339-DB )careful independent assessment and evaluation for its
credibility which should not be adversely prejudged making
any other evidence, including the medical evidence, as the
sole touchstone for the test of such credibility. The evidence
must be tested for its inherent consistency and the inherent
probability of the story; consistency with the account of
other witnesses held to be creditworthy; consistency with
the undisputed facts, the “credit” of the witnesses; their
performance in the witness box; their power of observation
etc. Then the probative value of such evidence becomes
eligible to be put into the scales for a cumulative
evaluation.”
24. It was held in David Piper Vs. Mark Hales 2013 EWHC B1
(QB) that the Court has to see whether the statement of the witness
is consistent or not. It was observed: –
34. The guidance about how courts approach this is given in
the extra-judicial writing of the late Lord Bingham of
Cornhill approved by the courts is apposite. In “The Judge as
Juror: The Judicial Determination of Factual Issues” published
in “The Business of Judging”, Oxford 2000, reprinted from
Current Legal Problems, vol 38, 1985 p 1-27, he wrote:
“. . . Faced with a conflict of evidence on an issue
substantially affecting the outcome of an action, often
knowing that a decision this way or that will have
momentous consequences on the parties’ lives or
fortunes, how can and should the judge set about his
task of resolving it? How is he to resolve which
witness is honest and which dishonest, which reliable
and which unreliable?
The normal first step in resolving issues of primary
fact is, I feel sure, to add to what is common ground
between the parties (which the pleadings in the action
should have identified, but often do not) such facts as
are shown to be incontrovertible. In many cases,
letters or minutes written well before there was any
breath of dispute between the parties may throw a
21
Neutral Citation No. ( 2024:HHC:11339-DB )very clear light on their knowledge and intentions at a
particular time. In other cases, evidence of tyre marks,
debris or where vehicles ended up may be crucial. To
attach importance to matters such as these, which are
independent of human recollection, is so obvious and
standard a practice, and in some cases so inevitable,
that no prolonged discussion is called for. It is
nonetheless worth bearing in mind, when vexatious
conflicts of oral testimony arise, that these fall to be
judged against the background not only of what the
parties agree to have happened but also of what
plainly did happen, even though the parties do not
agree.
The most compendious statement known to me of the
judicial process involved in assessing the credibility of
an oral witness is to be found in the dissenting speech
of Lord Pearce in the House of Lords in Onassis v
Vergottis [1968] 2 Lloyds Rep 403 at p 431. In this, he
touches on so many of the matters which I wish to
mention that I may perhaps be forgiven for citing the
relevant passage in full:
”Credibility’ involves wider problems than mere
‘demeanour’ which is mostly concerned with
whether the witness appears to be telling the
truth as he now believes it to be. Credibility
covers the following problems. First, is the
witness a truthful or untruthful person?
Secondly, is he, though a truthful person telling
something less than the truth on this issue, or
though an untruthful person, telling the truth
on this issue? Thirdly, though he is a truthful
person telling the truth as he sees it, did he
register the intentions of the conversation
correctly and, if so has his memory correctly
retained them? Also, has his recollection been
subsequently altered by unconscious bias or
wishful thinking or by over much discussion of
it with others? Witnesses, especially those who
are emotional, and who think that they are
22
Neutral Citation No. ( 2024:HHC:11339-DB )morally in the right, tend very easily and
unconsciously to conjure up a legal right that
did not exist. It is a truism, often used in
accident cases, that with every day that passes
the memory becomes fainter and the
imagination becomes more active. For that
reason, a witness, however honest, rarely
persuades a Judge that his present recollection is
preferable to that which was taken down in
writing immediately after the accident occurred.
Therefore, contemporary documents are always
of the utmost importance. And lastly, although
the honest witness believes he heard or saw this
or that, is it so improbable that it is on balance
more likely that he was mistaken? On this point,
it is essential that the balance of probability is
put correctly into the scales in weighing the
credibility of a witness. And motive is one aspect
of probability. All these problems
compendiously are entailed when a Judge
assesses the credibility of a witness; they are all
part of one judicial process. And in the process,
contemporary documents and admitted or
incontrovertible facts and probabilities must
play their proper part.”
Every judge is familiar with cases in which the conflict
between the accounts of different witnesses is so gross
as to be inexplicable save on the basis that one or some
of the witnesses are deliberately giving evidence
which they know to be untrue . . .. more often
dishonest evidence is likely to be prompted by the
hope of gain, the desire to avert blame or criticism, or
misplaced loyalty to one or other of the parties. The
main tests needed to determine whether a witness is
lying or not are, I think, the following, although their
relative importance will vary widely from case to case:
(1) the consistency of the witness’s evidence
with what is agreed, or clearly shown by other
evidence, to have occurred;
23
Neutral Citation No. ( 2024:HHC:11339-DB )
(2) the internal consistency of the witness’s
evidence;
(3) consistency with what the witness has said
or deposed on other occasions;
(4) the credit of the witness in relation to
matters not germane to the litigation;
(5) the demeanour of the witness.
The first three of these tests may in general be
regarded as giving a useful pointer to where the truth
lies. If a witness’s evidence conflicts with what is
clearly shown to have occurred or is internally self-
contradictory, or conflicts with what the witness has
previously said, it may usually be regarded as suspect.
It may only be unreliable, and not dishonest, but the
nature of the case may effectively rule out that
possibility.
The fourth test is perhaps more arguable. . . .”
35. The following guidance of Lord Goff in Grace Shipping
v. Sharp & Co [1987] 1 Lloyd’s Law Rep. 207 at 215-6 is also
helpful.
“And it is not to be forgotten that, in the present case,
the Judge was faced with the task of assessing the
evidence of witnesses about telephone conversations
which had taken place over five years before. In such a
case, memories may very well be unreliable; and it is
of crucial importance for the Judge to have regard to
the contemporary documents and the overall
probabilities. In this connection, their Lordships wish
to endorse a passage from a judgment of one of their
number in Armagas Ltd v. Mundogas S.A. (The Ocean
Frost), [1985] 1 Lloyd’s Rep. 1, when he said at p. 57: –
“Speaking from my own experience, I have found it
essential in cases of fraud, when considering the
credibility of witnesses, always to test their veracity by
reference to the objective facts proved independently
of their testimony, in particular by reference to the
documents in the case, and also to pay particular
24
Neutral Citation No. ( 2024:HHC:11339-DB )regard to their motives and the overall probabilities. It
is frequently very difficult to tell whether a witness is
telling the truth or not; and where there is a conflict of
evidence such as there was in the present case,
reference to the objective facts and documents, to
the witnesses’ motives, and the overall probabilities,
can be of very great assistance to a Judge in
ascertaining the truth.” [emphases added].
That observation is, in their Lordships’ opinion, equally
apposite in a case where the evidence of the witnesses is
likely to be unreliable; and it is to be remembered that in
commercial cases, such as the present, there is usually a
substantial body of contemporary documentary evidence.”
In that context, he was impressed by a witness described in
the following terms.
“Although like the other main witnesses, his evidence
was a mixture of reconstruction and original
recollection, he took considerable trouble to
distinguish precisely between the two, to an extent
which I found convincing and reliable.”
That is so important, and so infrequently done.”
36. This approach to fact-finding was amplified recently
by Lady Justice Arden in the Court of Appeal in Wetton (as
Liquidator of Mumtaz Properties) v. Ahmed and others [2011]
EWCA Civ 610, in paragraphs 11, 12 & 14:
11. By the end of the judgment, it is clear that what
impressed the judge most in his task of fact-finding
was the absence, rather than the presence, of
contemporary documentation or other independent
oral evidence to confirm the oral evidence of the
respondents to the proceedings.
12. There are many situations in which the court is
asked to assess the credibility of witnesses from their
oral evidence, that is to say, to weigh up their evidence
to see whether it is reliable. Witness choice is an
essential part of the function of a trial judge and he or
she has to decide whose evidence, and how much
evidence, to accept. This task is not to be carried out
25
Neutral Citation No. ( 2024:HHC:11339-DB )merely by reference to the impression that a witness
made by giving evidence in the witness box. It is not
solely a matter of body language or the tone of voice or
other factors that might generally be called the
‘demeanour’ of a witness. The judge should consider
what other independent evidence would be available to
support the witness. Such evidence would generally be
documentary but it could be other oral evidence, for
example, if the issue was whether a defendant was an
employee, the judge would naturally consider whether
there were any PAYE records or evidence, such as
evidence in texts or e-mails, in which the defendant
seeks or is given instructions as to how he should
carry out work. This may be particularly important in
cases where the witness is from a culture or way of life
with which the judge may not be familiar. These
situations can present particular dangers and
difficulties to a judge.
14. In my judgment, contemporaneous written
documentation is of the very greatest importance in
assessing credibility. Moreover, it can be significant
not only where it is present and the oral evidence can
then be checked against it. It can also be significant if
written documentation is absent. For instance, if the
judge is satisfied that certain contemporaneous
documentation is likely to have existed were the oral
evidence correct, and that the party adducing oral
evidence is responsible for its non-production, then
the documentation may be conspicuous by its absence
and the judge may be able to draw inferences from its
absence.
37. Contemporaneity, consistency, probability and motive
are key criteria and more important than demeanour which
can be distorted through the prism of prejudice: how
witnesses present themselves in a cramped witness box
surrounded for the first time with multiple files can be
distorted, particularly elderly ones being asked to remember
minute details of what happened and what was said, and
unrecorded, nearly 4 years later as here. Lengthy witness
26
Neutral Citation No. ( 2024:HHC:11339-DB )
statements prepared by the parties’ lawyers long after the
events also distort the accurate picture even though they are
meant to assist the court.”
25. In the present case the statements of the prosecution
witnesses are not consistent. Learned Trial Court had rightly held
that these inconsistencies would assume significance in the absence
of independent witnesses.
26. It is the admitted case of the prosecution that the
recovery of black spheres was effected from the backpack being
carried by the accused. This fact was mentioned in the recovery
memo (Ext. PW-1/D), rukka (Ext. PW-9/A), FIR (Ext. PW-7/F), and
special report (Ext. PW-5/A). Constable Jai Singh (PW1) stated in his
examination-in-chief that SHO Raj Kumar (PW9) searched the bag
and recovered black balls. HC Mohinder Singh (PW2) stated that
black balls were found after opening the bag. SI Raj Kumar (PW9)
stated that the bag was searched and it was found to contain the
loose round-shaped black substance. However, the SFSL report
(Ext PW-8/A) mentions that cannabis in the form of balls and stick
pieces was found in a brownish-green coloured cloth bag. There is
no explanation for the presence of the sticks. Further, the
documents and the statements of the witnesses mention the colour
of the bag as light green bearing Mark ‘Chelsea Football Club’,
whereas the result of the analysis mentions the colour of the bag as
27
Neutral Citation No. ( 2024:HHC:11339-DB )
brownish green and does not mention ‘Chelsea Football Club’. This
assumes significance in view of the statement of Constable Jai Singh
(PW1) to whom the seal was handed over. He stated that he had kept
the seal that was given to him in Police Station Ani. This means that
the seal was lying in the Police Station and the possibility of
tampering with the case property cannot be ruled out.
27. SI Raj Kumar (PW9) stated in his cross-examination
that he filled out the NCB-1 Form after sealing the bag. He filled the
column No.1 to 11 of the NCB-1 Form on the spot. Column No.11
mentions the date and time of the deposit with MHC as 02.07.2013
at 8 AM. The entry in the Malkhana register (PW-7/A) also
mentions the time of the deposit as 02.07.2013 at 8 AM. The learned
Trial Court had rightly pointed out that SI Raj Kumar (PW9) could
not know on the spot that case property would be deposited with the
MHC at 8 AM. This shows that either the statement of SI Raj Kumar
(PW9) regarding the filling of column No.11 on the spot is incorrect
or the NCB-1 Form was filled after the deposit of the case property.
This shows that either the false statement was made or the false
document was prepared.
28. A perusal of the documents prepared by the
investigation officer shows that the FIR number was mentioned in
28
Neutral Citation No. ( 2024:HHC:11339-DB )
red ink in the sample seal (Ext. PW-1/C), seizure memo
(Ext. PW-1/D), NCB-1 Form (Ext. PW-7/C). However, the site plan
mentions the FIR number in blue ink, unlike the other documents.
SI Raj Kumar (PW9) stated in his cross-examination that Constable
Jai Singh (PW1) went with the rukka on foot and returned to the spot
on foot. He recorded the statements of Constable Jai Singh (PW1)
and HC Mohinder Singh (PW2) after Jai Singh’s arrival. He prepared
the site plan after the departure of Constable Jai Singh with rukka
but before his arrival with the police case file. He was not aware of
the FIR number when he prepared the site plan. He has not provided
any explanation for mentioning the FIR number in the same ink.
29. In Manjit Singh vs. State 2001(2) Cur. L.J. (HP) 106 the FIR
number was written on the memo with the same pen and ink. It was
held by the Division Bench of this Court that the same will make the
prosecution case doubtful. It was observed:
“34. In view of the FIR number finding mention in the
aforesaid documents “in fact, three inferences are possible,
viz.(i) either the F.I.R. had been recorded before the search
and seizure, or (ii) the FIR number had been inserted therein
after the FIR was recorded, or (iii) the documents were
prepared only after the investigating officer received the
number of the F.I.R. from the police station. In case the FIR
had been lodged before the recovery but contains details of
search and recovery the only inference would be that the
recovery was planted/fake and will cut at the root of the case
entitling the accused to acquittal. In case the documents
29
Neutral Citation No. ( 2024:HHC:11339-DB )regarding search and recovery are prepared only after
receipt of the FIR number from the police station, it will
suffer from the vice of delay in preparing such documents
which must be prepared immediately after the action taken
and as a result thereof the recovery will be rendered
doubtful. However, in case of insertion of the number of the
FIR on the documents which had been prepared immediately
after the search and recovery will not necessarily be
rendered illegal or doubtful.”
30. This position was reiterated in State of H.P. vs. Gurdeep
Lal Latest HLJ 2002(2) 1018 (HPHC) wherein it was observed:
12. A perusal of Ext. PD shows that F.I.R. No is mentioned on
the top of this memo. It is not known as to how the F.I.R.
came to be recorded on this memo. A reading of the memo
itself shows that the case had not been registered by that
time and only a Rooka for the registration of the case had
been sent. It appears that Ext. PD came to be prepared only
after the registration of the case and much after the search
alleged to have been carried out.
13. A Division Bench of this Court in Gabriel Vs. State of H.P
1989 (1) Sim. L.C. 78. Where the seizure memo. Contained
F.I.R. number, has held that in no circumstances the memo.
Could contain the number of the F.I.R. as it does, because the
F.I.R. was recorded in the police Station only on the receipt
of the report. The investigation, therefore, was found to be
not above board. To a Similar effect a learned Single judge of
the Delhi High Court in Mohd. Hashim Vs. State (2000 Cri. L.J.
1510) and Zofar Vs, State (2000 Cri. L.J. 1589) has held the
preparation of the memo, to be doubtful.
14. If the memo. Ext. PD is held to be doubtful, then the
statement of the Investigation Officer with regard to the
compliance of the provisions of section 50 of the NOPS Act,
in view of the specific statement made by Pw-10, cannot be
accepted. It may be mentioned that the other independent
witness to the recovery, namely, Shadi Lal has not been
examined and was given up as unnecessary.”
30
Neutral Citation No. ( 2024:HHC:11339-DB )
31. A similar view was taken in State of H.P. vs. Dinesh
Kumar 2017 (Supp) Shim. LC 78 wherein it was observed:
“26. In the documents, i.e. sample seal impression of ‘H’ on
cloth Ext. PW6/C, site plan Ext. PW7/B and arrest memo Ext.
PW7/C, the number of FIR on the top has been filled in in
such a manner so as to reflect that it was filled in. After
preparation of the document on getting the number of FIR at
10.30 p.m. However, perusal of consent memo Ext. PW6/A
and memo of personal search of Investigating Officer Ext.
PW6/B indicates that the number of FIR has been filled in by
preparing the documents in one go from top to bottom. Not
only this, Ext. PW5/C is a sample seal impression of seal ‘K’
used for resealing. At the time of preparing this document,
the number of FIR was available with the police party and SI
Om Chand, but in this document, the number of FIR has
been reflected to have been entered later on by reflecting the
same in a manner so that it appears that it was inserted in
the document later on.
27. The documents which were prepared before lodging the
FIR contain the number of FIR in a manner as it has been
written in one go at the time of preparation of documents
whereas the documents prepared after having the number of
FIR reflect the number of FIR purported to have been
inserted later on. It appears that the entire proceedings were
taken at a place other than the spot, to say at the police
station, and the sequence of preparation of these documents
was also not in the manner as it should have been or has
been alleged in the prosecution story. All this strengthens
doubt in the prosecution case.”
32. Therefore, the mentioning of the FIR number in the site
plan will make the prosecution case suspect.
33. It was submitted by Ms. Ritta Goswami, learned Senior
counsel for the accused that the prosecution has not complied with
31
Neutral Citation No. ( 2024:HHC:11339-DB )
the mandatory requirement of Section 55 of the ND&PS Act. This
submission is not acceptable. It was laid down by this Court in Duni
Chand Vs. State of H.P. 2001 (2) Shim. LC 206 that the provisions of
Section 55 of the ND&PS Act are not mandatory and the accused
cannot be acquitted due to their non-compliance. It was observed:
“16. The learned Counsel next contended that the provisions
of Section 55 of the NDPS Act have not been complied with
by the Investigating Officer which has caused serious
prejudice to the accused. It is the evidence of PW-7 that after
the contraband was recovered from the possession of the
accused, PW-1 Pyar Singh was asked to bring scales and
weights from his nearby tea shop and thereafter recovered
Charas was weighed. Two samples of 25 grams each and two
samples of 10 grams each of ‘Battis’ (small sticks) and
‘Golas’ (small balls) were taken from the recovered charas
and the samples were sealed with three seals of seal bearing
impression ‘K’whereas the remaining Charas was sealed
with six seals of the same impression. PW-7 deposited the
case property with JPW-4 MHC Des Raj. PW-4 deposed that
on 26.11.1999, ASI Kishan Dass had brought four samples
duly sealed with sample seal and deposited the same in
Police Malkhana which was kept by him in safe custody. On
28.11.1999, he took out one sample of 25 grams sealed with a
seal bearing impression ‘K’ with three seals and handed over
the sample to Constable PW-3 Amin Chand for being carried
to Forensic Science Laboratory, Kandaghat. Shri Kishan
Chand (PW-6) was the Inspector/Station House Officer of
the Police Station, Kihar during the relevant time. He
deposed that on 26.11.1999, he had gone to Dharamshala.
Section 55 of the NDPS Act authorizes the Officer-in-charge
of the police station to take charge and keep in safe custody
pending the orders of the Magistrate all articles seized under
this Act within the local area of his police station and which
can be delivered to him and shall allow any officer who may
accompany such articles to the police station or who may be
32
Neutral Citation No. ( 2024:HHC:11339-DB )deputed for the purpose, to affix his seal to such articles or
to take sample from them and all samples so taken shall also
be sealed with a seal of the Officer-in-charge of the Police
Station. Provisions of Section 55 are directory in nature and
in the present case, undisputedly, no seal was affixed by the
Officer-in-charge of the Police Station upon the seized
contraband. It appears that PW-6 could not affix his seed as
an officer-in-charge of the police station upon the samples
deposited by PW-7 with PW-4 as PW-6 was not present in
the police station on 26.11.1999. The contention of the
learned Counsel that as there was no re-seal of the samples
by the station house officer under Section 55 of the NDPS
Act, the possibility of tampering with the samples could not
be ruled out is unfounded and cannot be accepted. If there is
any such irregularity committed by the Investigating
Agency, the same shall not vitiate the proceedings in this
case. The decision of Deep Chand v. State of Himachal
Pradesh, 1995 (2) Sim. L.C. 256, relied upon by the learned
Counsel for the accused, turns out on the facts of that case. It
is well settled by now that the defence will have to show that
failure of justice has resulted due to non-compliance of the
directory provisions of Section 55 of the NDPS Act. In Gurbax
Singh v. State of Haryana, 2000 (1) Crimes 235, their Lordships
of Supreme Court have held that the provisions of Sections
52 and 57 are directory and violation of these provisions
would not ipso facto vitiate the trial or conviction. The
judgment proceeded to hold that the Investigating Officer
cannot totally ignore these provisions and such violation
will have a bearing on appreciation of evidence regarding the
arrest of the accused or seizure of the article. In that case,
the Investigating Officer has admitted that the seal which
was affixed on the muddamal parcel was handed over to the
witness and was kept with him for ten days. The witness also
admitted that the muddamal parcels were not sealed by the
officer-in-charge of the police station as required under
Section 55 of the NDPS Act. The prosecution in that case has
not laid any evidence as to whether the chemical analyser
received the sample with proper intact seals and it created a
doubt whether the same sample was sent to the Chemical
analyser. On the basis of the evidence and faulty
33
Neutral Citation No. ( 2024:HHC:11339-DB )investigation by the prosecution, their Lordships came to
the conclusion that it would not be safe to convict the
accused for the serious offence of poppy husk. The learned
Counsel for the accused also relied upon State of H.P. v. Bhike
Ram, 1995 (2) Sim. L.C. 335; Thanni Ram v. State of Haryana,
2000 SCC (Cri) 189; State of Punjab v. Tek Ram, 1997 (1) CLR
579, Criminal Appeal No. 1 of 1999 i.e. Raj Kumar v. State of
H.P., decided on 17.11.2000, Karam Singh v. State of Punjab,
1988 (2) Crimes 278 Punjab and Haryana High Court, Bhajan
Singh v. State of Haryana, 1988 (1) Crimes 444; Punjab and
Haryana High Court, Rajesh v. State, 1989 (3) Crimes 638 Delhi,
Pradeep Kumar v. State, 1989 Cri. L.J. 2438 Delhi High Court,
Chhote Lal v. State of Rajasthan, 1990 (1) Crimes 246; Wilson
Dayal v. State, 1993 (1) Crimes 207, Delhi High Court, Bala Ram
v. State of Rajashtan, 1993 (2) Crimes 1130, Mansaram v. State
of M.P., 1994 (2) Crimes 346 and Ravinder Singh v. State of
Punjab, 1997 (3) Crimes 60 Punjab and Haryana High Court.
17. The ratio of the law laid down in the above-said
judgments is that if it is assumed that the provisions of
Section 55 of the NDPS Act are directory in nature, this does
not mean that those have not to be complied with. The only
fact of such provisions would be that the prosecution has to
explain that those were not complied with. If the
explanation for non-compliance is satisfactory, it has to be
seen whether any prejudice has been caused to the accused
or not. In the present case, as stated above, the prosecution
has rendered an explanation that the officer-in-charge of
the police station was out of station at the time when the
seized articles were brought by PW~7 to the police station,
Kihar and handed over to PW-4. PW-4 has categorically
deposed that all the parcels remained intact during the
period they remained in his custody. PW-3 stated that PW-4
handed over the sealed parcel duly sealed with a seal bearing
the impression ‘K’ along with parcel seals to him for taking
them to CTL. Kandaghat on 28:11.1999. He took the same
sealed parcels to Kandaghat and deposited them in
Kandaghat on 29.11.1999; He categorically stated that the
parcels remained intact during the period they remained in
his custody. In the teeth of the satisfactory explanation
rendered by the prosecution, we are of the view that non-
34
Neutral Citation No. ( 2024:HHC:11339-DB )
compliance of Section 55 is a mere irregularity and failure to
comply with will not vitiate the entire prosecution case
which is otherwise proved against the accused.”
34. Similarly, it was held in State of Punjab v. Leela, (2009)
12 SCC 300: (2010) 1 SCC (Cri) 568: 2009 SCC OnLine SC 883 that the
provision of section 55 of NDPS Act is directory. It was observed:
“13. It is not in dispute that provisions of Section 55 are
directory in nature. In the instant case, the DSP who was
examined as PW 1 is an officer and was higher in rank or of
the same rank as the SHO in the instant case. There is no
reason indicated as to how the accused has been prejudiced
by PW 1 putting his seal instead of the SHO. The provisions
are directory and as there is no doubt about the authenticity
of the official act, the High Court ought not to have held that
there was non-compliance with the requirement of Section
50.”
35. It was laid down by this Court in Angoori Devi and Others
Versus State of Himachal Pradesh 2005 (2) Shim. LC 176, that the
provision of Section 55 regarding the resealing of the case property
is a directory and not mandatory. It was observed:-
“24. In Fredrick George v. State of Himachal Pradesh (2002
Cr.L.J. 4600), while dealing with a similar question as in
hand, this Court held as under:
“32. In so far as the other case law relied upon by the
learned Counsel for the accused to support his
contention is concerned, the crux thereof is that in the
given circumstances of a case, non-compliance of
Section 55 of the Act may lead to the conclusion that
possibility of the case property having been tampered
with cannot be ruled out and as a result of prejudice
thus caused to the accused, the conviction of the
accused cannot be sustained. There cannot be any
35
Neutral Citation No. ( 2024:HHC:11339-DB )dispute with this proposition and once the non-
compliance of the provisions of Section 55 of the Act is
coupled with such circumstances, which may raise
doubts about the safe custody of the case property, the
benefit of the doubt is bound to be given to the
accused. It follows that the provisions of Section 55 of
the Act are not mandatory and non-compliance
thereof ipso facto is not fatal to the case of the
prosecution but such non-compliance has to be kept
in view while appreciating the link evidence led by the
prosecution to prove that the case property and
samples had not been tampered with.”
25. In Rajesh Basniyat v. State of Himachal Pradesh (Latest HLJ
2004 (HP) 875), this Court held as under :
“22. Be it stated that by now it is well settled in view of
the various judgments of this Court and the Apex
Court that provisions of Section 55 of the NDPS Act are
not mandatory but are directory. The effect of non-
compliance of these provisions ipso facto is not fatal
to the case of prosecution but it affects the
appreciation of evidence”.
26. In view of the above, it is clear that provisions of Section
55 of the Act are meant only to re-enforce the link evidence
regarding safe custody of the case property and non-
compliance thereof ipso facto will not vitiate the trial or
conviction. In case there is other cogent and reliable link
evidence about safe custody of the case property ruling out
any tampering therewith, non-compliance of Section 55 of
the Act will have no adverse bearing on the case of the
prosecution.
36. 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
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Neutral Citation No. ( 2024:HHC:11339-DB )
that since he was SHO and there was no such requirement, it is 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 scrutinize 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, the 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.”
37. Therefore, the prosecution case cannot be doubted due
to non-compliance with Section 55 of the ND&PS Act.
38. Thus, the learned Trial Court had taken a reasonable
view which could have been taken based on the evidence led before
it and no interference is required while deciding an appeal against
acquittal.
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Neutral Citation No. ( 2024:HHC:11339-DB )
39. Consequently, the present appeal fails and the same is
dismissed.
40. A copy of this judgment along with the records of the
learned Trial Court be sent back forthwith. Pending miscellaneous
application(s), if any, also stand(s) disposed of.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
14th November, 2024
(Nikita)