Himachal Pradesh High Court
Reserved On: 11.3.2025 vs State Of H.P on 10 April, 2025
2025:HHC:10009-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 16 of 2011 Reserved on: 11.3.2025 Date of Decision: 10.4.2025 Devender Kumar ...Appellant Versus State of H.P. ...Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Mr. Vipin Pandit, Advocate.
For the Respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment of conviction dated 17.1.2011 and order of sentence dated 18.1.2011, passed by learned Special Judge-II, Solan, District Solan, H.P., (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as 'the ND&PS Act') and was sentenced to undergo 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2025:HHC:10009-DB rigorous imprisonment for four months, pay fine of ₹4,000/- and in default of payment of fine to further undergo imprisonment for 15 days for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the 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 for the commission of an offence punishable under Section 20 of the ND&PS Act. It was asserted that HC Rajesh Kumar (PW9), and Constable Umesh Pal (PW8) had gone towards Waknaghat, Kayarighat, Shalaghat etc. to patrol vide entry No. 25 (Ex.PW6/B) in the official vehicle bearing registration No. HP-14A-6204, which was being driven by Constable Rambhaj. They met Constable Praveen Kumar (PW2), who was earlier sent for patrolling vide entry No. 24 (Ex.PW6/A). Uma Dutt (PW1) also sought a lift from HC Rajesh Kumar (PW9). He and Constable Praveen Kumar boarded the official vehicle bearing registration No. HP-14A-6204. When the vehicle reached Waknaghat Bowri (Water Spring), at 6.15 PM, the accused was seen going towards Kandaghat carrying a polythene bag (Ex. P2) in his right hand. He tried to get down the hill after seeing the police. The police 3 2025:HHC:10009-DB became suspicious that the accused might have some stolen articles or he might have committed some offence. The police apprehended him. The accused identified himself as Devender Kumar. The police checked the carry bag (Ex. P2) being carried by the accused. A dhoti (Ex. P3) containing charas (Ex. P4) wrapped in a transparent polythene packet (Ex. P5) was found inside the carry bag. Constable Umesh Dutt (PW1) brought the electronic weighing scale from Bhagat Singh (PW5). The charas was weighed and its weight was found to be 260 grams. It was put in the transparent polythene, which was put in dhoti and dhoti was put in the carry bag from which it was recovered in the same manner in which they were found. The carry bag was put in a cloth parcel and the parcel was sealed with three seal impressions of X. The seal impression (Ex.PW3/D) was taken on a separate piece of cloth. NCB-1 Form (Ex.PW3/E) was filled. The seal impression was taken on the form and the seal was handed over to Uma Dutt (PW1) after use. A Memo of handing over the seal (Ex.PW1/C) was prepared. The parcel was seized vide memo (Ex.PW1/D). Rukka (Ex.PW3/A) was prepared and sent to the Police Station, where FIR (Ex.PW3/B) was registered. HC Rajesh Kumar (PW9) conducted the investigation. He prepared the site 4 2025:HHC:10009-DB plan (Ex.PW9/A) and recorded the statements of witnesses as per their version. He arrested the accused vide seizure memo (Ex.PW9/B). He brought the accused and the case property to the Police Station and produced them before ASI Ashok Kumar (PW3). ASI Ashok Kumar checked the seals on the parcels and sealed them with seal 'Y' at six places. He obtained the seal impression (Ex.PW3/D) on a separate piece of cloth. He filled Columns No.9 to 11 of the NCB-1 Form (Ex.PW3/E). He obtained a seal impression of 'Y' on the NCB-1 form. He issued a certificate of resealing (Ex.PW3/F). He handed over the case property, sample seals, NCB-1 Form in triplicate and other documents to HC Brij Lal (PW6) who made an entry at Serial No. 57/09 in the Malkhana register (Ex.PW6/F) and deposited all the articles in Malkhana. He handed over the parcel, sample seals, memo and FIR to HHC Sohan Lal (PW4), who carried them to FSL, Junga vide RC No. 38/09 (Ex.PW6/G) and deposited them at FSL. Sohan Lal handed over the receipt to MHC on his return. A special report (Ex.PW4/B) was prepared and was handed over to the Superintendent of Police on 13.8.2009. He made an endorsement on the special report (Ex.PW4/A) and handed it over to his Reader ASI Yashwant Singh (PW7) who made an entry in his register and 5 2025:HHC:10009-DB kept the special report on record. The result of the analysis (Ex.PW9/C) was issued which showed that the sample was an extract of cannabis which contained 33.86% W/W resin in it. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, a challan was prepared and presented before the Court.
3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the ND&PS Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined ten witnesses to prove its case. Uma Dutt (PW1) is an independent witness who has not supported the prosecution case. Constable Praveen Kumar (PW2) and Umesh Pal (PW8) are the official witnesses to recovery. ASI Ashok Kumar (PW3) was officiating as SHO, who signed the FIR and resealed the case property. HHC Sohan Lal (PW4) carried the special report to the Superintendent of Police, Solan and the case property to FSL, Junga. Bhagat Singh (PW5) was running a shop at Waknaghat from where an electronic weighing scale was taken by the police for weighing the charas. Brij Lal (PW6) was working as MHC with whom the case property was deposited. ASI 6 2025:HHC:10009-DB Yashwant Singh (PW7) was working as a Reader to the Superintendent of Police, Solan, to whom a special report was handed over. HC Rajesh Kumar (PW9) effected the recovery and conducted the investigation. SI Krishan Kumar (PW10) prepared the challan.
5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that the police party met him at about 4.00 PM. He admitted that he was brought to Police Station, Kandaghat. He denied that he was carrying a carry bag containing charas. He stated that the wrong record was prepared by the police and he was falsely implicated. The police party acted at the instance of Parveen Kumar (PW2) who had quarrelled with the accused. He examined Suresh Kumar (DW1), Naresh Kumar (DW2), Kamla Dutt (DW3), Devinder Verma (DW4) and Sachin Bansal (DW5) in his defence.
6. The learned Trial Court held that the testimonies of the official witnesses corroborated each other. Minor contradictions in the statements of the police officials were not sufficient to discard them. The contradictions were bound to come with time. The mere fact that independent witnesses did not support the prosecution case is not sufficient to discard it. 7
2025:HHC:10009-DB The location of the mobile phone was at Waknaghat which corroborated the prosecution's version that the accused was apprehended at Waknaghat. The integrity of the case property was established. Only resin content was to be taken into consideration for determining the quantity and the resin content was found to be 33.86% W/W in the FSL report. Thus, the quantity of charas in possession of the accused was 88 grams which was a small quantity. Consequently, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court failed to appreciate the evidence led before it. The prosecution witnesses had materially improved their version. There were material contradictions in their testimonies which made them unreliable. Uma Dutt (PW1) did not support the prosecution case. The call detail record was not properly appreciated by the learned Trial Court. There were many shops and houses in the vicinity but no independent person was associated. Bhagat Singh (PW5) stated that the scale was taken from his shop 3-4 months before the date of deposition which corresponds to May/June 2010. The 8 2025:HHC:10009-DB NCB-I form was not properly filled. The diary and dispatch register from the office of Superintendent of Police, Solan was not produced and the receipt of the special report was not proved. 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. I have heard Mr. Vipin Pandit, learned counsel for the appellant/accused and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State.
9. Mr. Vipin Pandit, learned counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. Independent witnesses did not support the prosecution case and there were material contradictions in the testimonies of official witnesses. The prosecution case was inherently improbable because the vehicle and the accused were both going towards Kandaghat and it was not possible for the accused to see the police vehicle and attempt to run down the hill. The integrity of the case property was not established. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
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10. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State submitted that the prosecution has proved its case beyond reasonable doubt and learned Trial Court had rightly convicted and sentenced the accused. Learned Trial Court had rightly held that minor contradictions were bound to come with time and they were not sufficient to discard the prosecution's case. The testimonies of official witnesses cannot be discarded simply because they are police officials. The integrity of the case property was duly established. Therefore, he prayed that the present appeal be dismissed.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. Uma Dutt (PW1) stated that he was present at Waknaghat. A police party reached the spot. He took a lift in the police vehicle. When the vehicle reached Bowri (Water Spring), the accused was found standing with two persons. The police asked if the accused was known to him. He replied in the affirmative. The police official had a polythene packet with him. He asked Uma Dutt (PW1) to smell it. It smelled like charas. The police directed him to accompany them to the Police Station. He told the police that he had to deliver medicine at his home. He 10 2025:HHC:10009-DB went to his home and the Police Station thereafter. He was permitted to be cross-examined. He denied in his cross- examination by the learned Public Prosecutor that the vehicle reached the water spring at 6.15 PM and the accused attempted to run away. He denied that the accused was apprehended and he was found in possession of charas. He admitted his signatures on the memo. He admitted that sample seals were taken on the spot and that the seal was handed over to him after the use. He volunteered to say that the seal was taken back by the police. He denied that he was making false statement to save the accused.
13. HC Rajesh Kumar (PW9) stated that he had recorded the statement (Ex.PW1/E) of Uma Dutt (PW1) including the portions A to A, B to B, C to C, D to D and E to E as per his version. This part of his testimony was not challenged in the cross- examination. Hence, Uma Dutt (PW1) is shown to have made two inconsistent statements on two different occasions and his credibility has been shaken under Section 155 (2) of the Indian Evidence Act. It was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. 11
2025:HHC:10009-DB However, when he is confronted with some portions of the previous statement, his credibility is shaken to that extent and the rest of the statement can be relied upon. It was observed:
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a re- sult of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be be- lieved in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and con- sidering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally dis- credited, the Judge should, as a matter of prudence, dis- card his evidence in toto."
14. This Court has also laid down in Ian Stilman versus. State 2002(2) Shim. L.C. 16 that where a witness has been cross- examined by the prosecution with the leave of the Court, his statement cannot be relied upon. It was observed:
12. It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-exam-
ined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex Court. In Jagir Singh v. The State 12 2025:HHC:10009-DB (Delhi Administration), AIR 1975 Supreme Court 1400, the Apex Court observed:
"It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony".
15. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri.L.J.4254 that merely because independent witnesses have turned hostile is no reason to discard the prosecution version. It was observed:
"Though the independent witnesses, PW-1 Rajiv Kumar and PW-2 Hira Lal, were declared hostile and were cross- examined, however, the law in respect of appreciating the testimonies of such witnesses is well settled. Hon'ble Apex Court in titled Sudru versus State of Chhattisgarh, (2019) 8 SCC 333 relying upon Bhajju versus State of M.P., 2010 4 SCC 327, has again reiterated the well-settled principle that evidence of hostile witness can be relied upon by the pros- ecution version. Merely because a witness has turned hos- tile, the same does not render his evidence or testimony inadmissible in trial and such conviction can be based upon such testimony, if it is corroborated by other reliable evidence.
In a case titled Raja and Others versus State of Karnataka, (2016) 10 SCC 506 the Apex Court observed that the evi-
dence of a hostile witness cannot be altogether discarded and as such it is open for the Court to rely on the depend- able part of such evidence which stands duly corroborated by other reliable evidence on record.
In a case titled Selvaraj @ Chinnapaiyan versus State repre- sented by Inspector of Police, (2015) 2 SCC 662 the Apex Court has observed that in a situation/case, wherein, the witness deposes false in his/her cross-examination, that 13 2025:HHC:10009-DB itself is not sufficient to outrightly discard his/her testi- mony in examination-in-chief. The Court held that a con- viction can be recorded believing the testimony of a such witness given in examination-in-chief, however, such ev- idence is required to be examined with great caution. In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh, (2011) 5 SCC 123, has held as under: -
"the seizure witness turning hostile may not be very significant by itself, as it is not an uncommon phe- nomenon in criminal trial particularly in cases relat- ing to NDPS Act."
16. Therefore, the accused cannot be acquitted merely because the independent witness has turned hostile.
17. It was submitted that the prosecution version is inherently improbable because no one would take a lift in a police vehicle. This submission is not acceptable. Uma Dutt (PW1), who has otherwise not supported the prosecution case, has categorically stated that he took a lift in the police vehicle. Therefore, he has not disputed the fact that he was travelling with the police in the police vehicle. Hence, the prosecution case cannot be doubted because no one would normally take a lift in a police vehicle. In the present case, it was duly proved by the statements of official witnesses and the statement of Uma Dutt (PW1) that the lift was in fact taken and Uma Dutt was present in the vehicle.
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18. HC Rajesh Kumar (PW9), Constable Umesh Pal (PW8) and Constable Parveen Kumar (PW2) supported the prosecution case in their examination in chief. It was submitted that there are various contradictions in the testimonies of the prosecution witnesses and various documents. The following contradictions were highlighted: -
(i) NCB-1 Form mentions the time of seizure of charas as 7.00 PM, whereas rukka (Ex.PW3/A) mentions the time of apprehension of the accused as 6.15 PM. Uma Dutt (PW1) stated that police had shown him charas at 4.15 PM and Bhagat Singh stated that the scale was brought from the shop at 6.00 PM.
(ii) The call detail record shows that Suresh Kumar had received the call at 5.45 PM which falsifies the prosecution version regarding the apprehension of the accused at 6.15 PM. This is also contrary to the arrest memo wherein the time of arrest was given as 9.15 PM.
(iii) Uma Dutt (PW1) stated that the accused was apprehended near a water spring. Parveen Kumar (PW2) stated that the accused was seen at a distance of 100-150 mtrs. away from the water spring towards Shimla side. Constable Umesh Pal (PW8) stated that the accused was apprehended at 6.00 PM on the valley side. Rajesh Kumar (PW9) stated that the accused was noticed from a water spring towards Waknaghat side. 15
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(iv) Uma Dutt (PW1) stated that the police jeep was stopped near the accused and he was apprehended at the same place. Parveen Kumar (PW2) stated that the accused was at a distance of 100-150 mtrs. from the water spring when he had tried to run away. Rajesh Kumar (PW9) stated that the accused was walking along the water spring and the vehicle was stopped at some distance from the accused. He was apprehended while he was running towards the valley side.
(v) Parveen Kumar (PW2) stated that the accused was found carrying the polythene packet of white saffron colour. Umesh Pal (PW8) and Rajesh Kumar (PW9) have not given the colour of the packet.
(vi) Umesh Pal (PW8) stated that charas was contained in a white cloth. Parveen Kumar (PW2) did not state that charas and cloth were kept in the polythene packet. Rajesh Kumar (PW9) stated that the polythene packet contained white cloth and a transparent packet containing charas.
19. Before adverting to the contradictions highlighted in the memo of appeal, the law regarding the discrepancies has to be recollected. It was laid down by the Hon'ble Supreme Court in Goverdhan Vs. State of Chhattisgarh (2025) SCC Online SC 69 that the discrepancies are not sufficient to discard the prosecution case unless they are material. It was observed: - 16
2025:HHC:10009-DB "51. As we proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the account of eyewitnesses.
In Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525, it was observed as follows:
"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In para 10 of the Report, this Court observed: (SCC pp. 514-15) '10. While appreciating the evidence of a witness, 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 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 17 2025:HHC:10009-DB witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical 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. 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 had not 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. Even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention and reproduction differ with individuals.'
10. In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26] this Court observed: (SCC p. 656, para 24) '24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. 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.18
2025:HHC:10009-DB But 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.' This Court further observed: (SCC pp. 656-57, paras 25-27) '25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:
"155. Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him--
(1)-(2) *** (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of an inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross- 19
2025:HHC:10009-DB examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only a limited purpose i.e. to "contradict" the witness.
27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri LJ 1231]).'"
52. Further, this Court also cautioned about attaching too much importance to minor discrepancies of the evidence of the witnesses in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 as follows:
"5. ... We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) 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.
(2) 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 20 2025:HHC:10009-DB therefore cannot be expected to be attuned to absorb the details.
(3) 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.
(4) 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.
(5) 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.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the 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--perhaps it is a 21 2025:HHC:10009-DB sort of psychological defence mechanism activated on the spur of the moment."
53. To the same effect it was also observed in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:
"13. ... The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for this Court in Sohrab v. State of M.P. [(1972) 3 SCC 751: 1972 SCC (Cri) 819] observed : [SCC p. 756, para 8: SCC (Cri) p.
824, para 8] '8. ... This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main 22 2025:HHC:10009-DB incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered....'"
20. Hence the testimonies have to be examined to determine whether the contradictions are real or apparent, material or minor.
21. The contradiction regarding the time is not significant because as was laid down in Bharwada Bhogin Bhai (supra) no person remembers the time by looking at the watch and different persons have different perceptions of the time, therefore, any discrepancy about the time cannot be considered to be material.
22. Moreover, the discrepancy is more apparent than real.
NCB-1 Form (Ex.PW3/E) mentions the time of seizure which is different from the time of the apprehension of the accused. The seizure did not take place immediately after the apprehension of the accused. The police inquired about the name and address of the accused, and called for the electronic weighing scale, weighed the charas and packed it in the same manner in which it was recovered. A carry bag containing charas and other articles was put in a cloth parcel and the parcel was sealed, A seizure memo was prepared and the charas was seized. All this takes time. 23
2025:HHC:10009-DB Hence, the seizure can take place at 7.00 PM, even if the accused was apprehended at 6.15 PM. Therefore, there is no real contradiction relating to the time.
23. Bhagat Singh (PW5) stated that police officials came to his shop at about 6.00 PM. The use of the word about 6.00 PM shows that he was not certain about the time and had not noticed the same after looking at his watch. Therefore, there can be variation in the time mentioned by him. Since the seizure had taken place at 7.00 PM and the accused was apprehended at 6.15 PM, the electronic weighing scale could be taken between 6.15 pm to 7.00 PM, which is explainable by the use of the term 'about'.
24. It was submitted that the call detail record shows that a call was made to Suresh Kumar (DW1) at 5.45 PM. This falsifies the prosecution version that the accused was apprehended at about 6.15 PM. This submission is not acceptable. Suresh Kumar (DW1) stated that he received a telephone call from the mobile phone of the accused. The accused told him that he was falsely implicated and arrested in a case. The call was received at about 4.20 PM. He went to the Police Station Waknaghat at 5.30 PM. The accused has nowhere claimed in his statement recorded 24 2025:HHC:10009-DB under Section 313 of Cr.P.C. that he had called Suresh Kumar. Further, the call detail record shows that the call was made from the mobile of the accused at 5.26 and 5.27 to the mobile of Suresh Kumar and as per detail of the sites of cells these calls were generated from cell ID-21922 located at Waknaghat near JP University. Thus, the call details record does not corroborate the testimony of Suresh Kumar (DW1). On the other hand, the call details record established the presence of the accused at Waknaghat which substantially corroborates the prosecution version.
25. HC Rajesh Kumar (PW9) stated in his cross- examination that he had informed Suresh Kumar (DW1) before arresting the accused from the mobile phone of the accused. Significantly, the call detail records mention the calls made at 12.8.2009 from 10:59:18 to 4:08:43. Thus, the complete call detail record of 12th was not placed before the Court to show that no such call was received at 9.15 pm as asserted by the Investigating Officer. Hence, the evidence of the defence witnesses Suresh Kumar (DW1) and Devender Verma (DW4) to prove that a call was made before 6.00 pm will not help the accused and this circumstance cannot be used to discard the prosecution's case. 25
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26. The contradiction regarding the place of apprehension of the accused is also not real but merely apparent. Uma Dutt (PW1) has contradicted his previous testimony; therefore, his testimony cannot be used regarding the place of apprehension of the accused. Parveen Kumar (PW2) stated that the accused was seen at a distance of 100-150 meters away from Bawri towards Shimla. Umesh Pal (PW8) also stated in his cross- examination that the accused was going towards Kandaghat and was noticed near Bawri. He did not remember the distance of the spot from Bawri where the accused was noticed. Thus, he has not mentioned any distance. HC Rajesh Kumar (PW9) stated that the accused was seen on the right side of the road at a distance of about 80-100 meters from Bawri. Thus, both Praveen Kumar (PW2) and Rajesh Kumar (PW9) have consistently stated that the accused was seen at a distance of 80-100 meters and 100-150 meters from Bawri. Since no one measures the distance and gives the approximate distance, there is no discrepancy in 80-100 meters and 100-150 meters.
27. Umesh Pal (PW8) stated that the accused was apprehended at a distance of about 8-9 meters from the road towards the valley side. Parveen Kumar (PW2) stated that the 26 2025:HHC:10009-DB accused was apprehended at a distance of 2-3 meters down the road towards the valley side. Rajesh Kumar (PW9) stated that the accused was apprehended towards the valley side. Therefore, the witnesses have consistently stated that the accused was apprehended towards the valley side. The distance of 2-3 meters and 8-9 meters is not significant because of the different perceptions of the distance of the different persons.
28. All the witnesses identified the packet containing charas. Therefore, the omission to mention the colour by Umesh Pal (PW8) and Rajesh Kumar (PW9) is not significant. Moreover, they were not cross-examined regarding the colour, hence this circumstance by itself is not sufficient to doubt the prosecution case.
29. Constable Pawan Kumar (PW2) stated that the packet was checked and it was found to contain charas. Charas along with Dhoti was put in the packet. Umesh Pal (PW8) stated that the packet was checked and it was found to contain a white cloth having a polythene packet containing charas. Rajesh Kumar (PW9) stated that the packet contained a piece of white cloth (dhoti) having a white transparent packet containing black balls which was found to be charas. Therefore, there is no real 27 2025:HHC:10009-DB contradiction in the statements of official witnesses regarding the manner in which the charas was kept.
30. Thus, the discrepancies highlighted by the learned counsel for the appellant are not significant. The incident took place at 12.8.2009. The witnesses were deposing after the lapse of one year and minor discrepancies were bound to happen because of failure of memory with time and they were rightly ignored by the learned Trial Court.
31. It was submitted that no independent witness was associated even though many shops and houses were located at Waknaghat at some distance. This submission will not help the accused. It was a case of chance recovery. The police apprehended the accused when he tried to run away after seeing the police vehicle. 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 28 2025:HHC:10009-DB 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 would not have lent any further credence to the prosecution version."
32. 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 29 2025:HHC:10009-DB 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 is only the material contradictions and not the trivial ones, which assume significance." (Emphasis supplied)
33. It was laid down by the Hon'ble Supreme Court of India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557: (2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-association of the independent witnesses will not be fatal to the prosecution case. However, the Court will have to scrutinise the statements of prosecution witnesses carefully. It was observed on page 566:
"(C) Need for independent witnesses
19. It would be gainsaid that the lack of independent witnesses is not fatal to the prosecution case. [Kalpnath Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998 SC 201, para 9] 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."
34. This position was reiterated in Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730, wherein, it was observed on page 633:
30
2025:HHC:10009-DB "12. It is settled law that the testimony of the official witnesses cannot be rejected on the grounds of non-
corroboration by independent witnesses. As observed and held by this Court in 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 [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ].
13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767], while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under : (SCC p. 568) "15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 :
(2011) 1 SCC (Cri) 1191], 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) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], 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 31 2025:HHC:10009-DB performed is a wise principle of presumption and recognised even by the legislature.'"
35. 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."
36. This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it was held at page 204: -
"17. 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 Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 :
(2020) 1 SCC (Cri) 767] holding that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was falsely implicated. Therefore, the said issue is also well settled and in particular, looking at 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 32 2025:HHC:10009-DB interference."
37. A similar view was taken in Kehar Singh v. State of H.P., 2024 SCC OnLine HP 2825 wherein it was observed:
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.33
2025:HHC:10009-DB 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 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."
38. In the present case, the police had apprehended the accused and recovered the charas, therefore, no fruitful purpose would have been served by calling any independent person from the vicinity as he could not have witnessed the possession.
39. It was submitted that the prosecution case is inherently improbable because the accused and the vehicle were going in the same direction and it would not be possible for the accused to see the police vehicle. This submission is not acceptable. It is a specific case of the prosecution that the police 34 2025:HHC:10009-DB were travelling in the official vehicle which is conspicuous. Police officials were in uniform, and it was not unlikely for the accused to notice them and try to save himself by running towards the valley. Hence, the prosecution case cannot be said to be inherently improbable.
40. Naresh Kumar (DW2) stated that accused Devender Kumar and Constable Parveen Kumar had an altercation at Shiv Mandir because Constable Parveen had entered the kitchen with shoes and Devender had requested him not to do so. Constable Parveen threatened the accused to falsely implicate him in some criminal cases. He stated in his cross-examination that the altercation took place on 26.7.2009 at 11-12 PM. Suresh and Rajesh were present at that time.
41. This testimony is not sufficient to doubt the prosecution case. It only shows that there was an altercation with Constable Parveen Kumar. It is difficult to believe that all the police officials had deposed falsely against the accused because he had an altercation with one police constable. Further, no complaint was ever made to any person regarding the incident and there is no contemporaneous document regarding the altercation. It was laid down by this Court in Budhi Ram Vs State, 35 2025:HHC:10009-DB 2021 (4) Shim. L.C. 1945, that where the defence asserts that the accused was falsely implicated due to some quarrel, it must be proved that enmity or quarrel between the accused and the police was such as to push the police in wrongly framing the accused. It was observed: -
"[16] We have considered the contentions as well as the evidence of DW-1. The evidence of DW-1 is not to such an extent that would support the contentions of the learned counsel for the appellant. The evidence of DW-1 only indi- cates that a quarrel took place between the accused and the police. What was the quarrel and what was the inten- sity of the enmity between the accused and the police has not been stated. The enmity or hatred between the appel- lant and the police should be to such an extent which would push the police into wrongly framing the accused. The incident should have hurt the police to such an extent that they had no other option but to falsely implicate the accused. We do not find that the intensity of the evidence is to such an extent as to lead to such a conclusion. The ev- idence only indicates that there was an altercation be- tween the accused and the police. It may not be possible for us to conclude that this particular quarrel between the accused and the police has led to the wrong implication for the accused. We do not find that there is any nexus be- tween the contention of a false implication of the accused with the evidence of DW-1. Therefore, we are unable to ac- cept the evidence of DW-1 to the extent which is sought to be argued."
42. In the present case, the reason assigned by this witness is not sufficient to infer that police were pushed to falsely implicate the accused and his testimony cannot be used to discard the prosecution case.
36
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43. Kamla Dutt (DW3) stated that Suresh Kumar (DW1) contacted him on his mobile phone and told him that they had to go to Waknaghat. He and Suresh Kumar went to Waknaghat at about 5.30 PM. They talked to the police officials and returned. They went to the police station thereafter. He stated in his cross- examination that he had given approximate time. He had received a call on his mobile from Suresh. He was not running a taxi.
44. Suresh Kumar (DW1) stated that he called Kamla Dutt who was running a taxi to visit Waknaghat and thereafter Police Station Kandaghat. Kamal Dutt has categorically stated that he is not plying a taxi, therefore, Suresh Kumar had no reason to contact Kamla Dutt. Hence the presence of Kamla Dutt on the spot is not satisfactorily established and his testimony cannot be used to discard the prosecution's case.
45. Thus, the defence witnesses were unable to shatter the prosecution version and their testimonies were rightly discarded by the learned Trial Court.
46. The learned Trial Court had the advantage of looking at witnesses and hearing the testimonies. It was laid down by the Hon'ble Supreme Court in Goverdhan (supra) that the Appellate 37 2025:HHC:10009-DB Court should not interfere with the findings regarding the credibility of the witnesses recorded by the learned Trial Court unless there is some illegality in it. It was observed: -
"83. The trial court after recording the testimony of the PW-10 and on consideration of the same found her evi- dence trustworthy and credible. We see no reason to ques- tion the assessment about the credibility of the witness by the Trial Court which had the advantage of seeing and hearing above the witness and all other witnesses. Nothing has been brought to our notice of any serious illegality or breach of fundamental law so as to warrant taking a dif- ferent view of the evidence of PW-10.
In this regard we may keep in mind the valuable observa- tions made by this Court in Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 in the following words:
"28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advan- tage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the ap- pellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in the appraisal of evidence is erroneous, contrary to well-established principles of law or un- reasonable.
29. .........................................
30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75 IA 252: AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant deci-38
2025:HHC:10009-DB sions on the point, stated [Quoting from Watt v. Thomas, [1947] 1 All ER 582, pp. 583 H-584 A.] : (IA p. 255) "... but if the evidence as a whole can reason- ably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of the first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first in- stance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."
47. It was further held in Goverdhan (supra) that the assessment of evidence cannot be made in a criminal trial technically and the Court has to see the realities of life while appreciating the evidence. It was observed: -
"66. We must also keep in mind that in a trial, the assess- ment of evidence cannot be made in a technical manner and the realities of life must be kept in mind for arriving at the truth as observed by this Court in State of H.P. v. Lekh Raj (2000) 1 SCC 247 as follows;
"10. The High Court appears to have adopted a tech- nical approach in disposing of the appeal filed by the 39 2025:HHC:10009-DB respondents. This Court in State of Punjab v. Jagir Singh [(1974) 3 SCC 277: 1973 SCC (Cri) 886] held:
(SCC pp. 285-86, para 23) '23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of the interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yard- stick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the fi- nal analysis would have to depend upon its own facts. Although the benefit of every rea- sonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.' The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of 40 2025:HHC:10009-DB the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilisation and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind."
48. It was further held that the Court has to put together the pieces of jigsaw puzzle to determine the criminal liability of the accused and the prosecution has to prove its case beyond a reasonable doubt. It was observed:-
"18. In case of a crime committed, upon completion of the investigation by the investigation agency, the accused are brought before the court to face trial. Under our criminal jurisprudence, the court ordinarily is not privy to the evi- dence collected during the investigation by the investiga- tion agency. After completion of the investigation, what is brought before the trial court is an array of evidence, both documentary and oral, collected by the investigating agency against the accused which is required to be mar- shalled and analyzed by the court to arrive at appropriate conclusions. The prosecution seeks to recreate the inci- dent of crime before the court in sequence, based on the 41 2025:HHC:10009-DB evidence so collected, linking the accused with the com- mission of crime. Such recreation of crime by the prosecu- tion before the court is akin to putting the evidence to- gether as in a jigsaw puzzle whereby all the relevant pieces of evidence are put together to complete the picture of the crime. The prime responsibility of the court is to see whether this jigsaw puzzle has been properly placed by the prosecution from which a clear picture emerges as to the happening of the incident with the assigned role of the ac- cused as part of the aforesaid jigsaw puzzle. Only, there- after, the role of the accused in perpetrating the offence can be properly ascribed and proved and accordingly, criminal liability fastened on the accused.
19. As per Section 3 of the Indian Evidence Act, 1872, a fact can be said to have been proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The court under- takes this exercise of examining whether the facts alleged including the particular criminal acts attributed to the ac- cused are proved or not.
20. It is also to be noted that the law does not contemplate stitching the pieces of evidence in a watertight manner, for the standard of proof in a criminal case is not proof be- yond all doubts but only beyond reasonable doubt. In other words, if a clear picture emerges on piecing together all evidence which indicates beyond reasonable doubt the role played by the accused in the perpetration of the crime, the court holds the accused criminally liable and punishes them under the provisions of the penal code, in contradis- tinction to the requirement of proof based on the prepon- derance of probabilities as in case of civil proceedings.
21. It will be relevant to discuss, at this juncture, what is meant by "reasonable doubt". It means that such doubt must be free from suppositional speculation. It must not be the result of minute emotional detailing, and the doubt must be actual and substantial and not merely vague ap- prehension. A reasonable doubt is not an imaginary, trivial 42 2025:HHC:10009-DB or merely possible doubt, but a fair doubt based upon rea- son and common sense as observed in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395 wherein it was ob- served as under:
"24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute rea- sonable doubt, it must be free from an overly emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
22. While applying this principle of proof beyond reason- able doubt the Court has to undertake a candid considera- tion of all the evidence in a fair and reasonable manner as observed by this Court in State of Haryana v. Bhagi- rath (1999) 5 SCC 96 as follows:
"8. It is nearly impossible in any criminal trial to prove all the elements with scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression 'reasonable doubt' is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
'It is difficult to define the phrase "reasonable doubt". However, in all criminal cases, a care- ful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster 43 2025:HHC:10009-DB case [Commonwealth v. Webster, 5 Cush 295: 59 Mass 295 (1850)]. He says: "It is not mere pos- sible doubt, because everything relating to human affairs and depending upon moral evi- dence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."'
10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
'The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistently with a conscien- tious desire to ascertain the truth. An honestly en- tertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and rea- sonable way. There must be a candid consideration of all the evidence and if, after this candid consider- ation is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.'
23. The concept of reasonable doubt has to be also under- stood in the Indian context, keeping in mind the social re- ality and this principle cannot be stretched beyond a rea- sonable limit to avoid generating a cynical view of law as observed by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 as follows:
"6. Even at this stage, we may remind ourselves of a necessary social perspective in criminal cases which suffer from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of bene-44
2025:HHC:10009-DB fit of the doubt at the expense of social defence and to the soothing sentiment that all acquittals are al- ways good regardless of justice to the victim and the community, demand special emphasis in the con- temporary context of escalating crime and escape. The judicial instrument has public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the atti- tude that a thousand guilty men may go but one in- nocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Oth- erwise, any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned Author [Glanville Williams in 'Proof of Guilt'.] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become gen- eral, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted "per- sons" and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Si- mon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the con- viction of the innocent...." In short, our jurispruden- tial enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish mar- ginal innocents. We have adopted these cautions in 45 2025:HHC:10009-DB analysing the evidence and appraising the sound- ness of the contrary conclusions reached by the courts below. Certainly, in the last analysis, reason- able doubts must operate to the advantage of the appellant. In India, the law has been laid down on these lines long ago."
24. Further, what would be the standard degree of "proof" which would be required in any particular case was also discussed in the aforesaid case of Ramakant Rai (supra) in the following words:
"23. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reason- able doubt. Though this standard is a higher stan- dard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exer- cise particular to each case. Referring to (sic) of probability amounts to "proof" is an exercise, the interdependence of evidence and the confirmation of one piece of evidence by another, as the learned author says: [see The Mathematics of Proof II:
Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)] "The simple multiplication rule does not ap- ply if the separate pieces of evidence are de- pendent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged con- fession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than in- nocent people who make confessions, and guilty rather than innocent people who run 46 2025:HHC:10009-DB away, the two doubts are not to be multiplied together. The one piece of evidence may con- firm the other."
24. ....................
....................
25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivial- ities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154]."
25. At this point, it may be also relevant to mention an ob- servation made by Lord Denning, J. in Miller v. Miller of Pensions [1947] 2 All ER 372, 373:
"That degree is well settled. It need not reach cer- tainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possi- bilities to deflect the court of justice...."
26. Thus, the requirement of law in criminal trials is not to prove the case beyond all doubt but beyond reasonable doubt and such doubt cannot be imaginary, fanciful, trivial or merely a possible doubt but a fair doubt based on reason and common sense. Hence, in the present case, if the alle- gations against the appellants are held proved beyond rea- 47
2025:HHC:10009-DB sonable doubt, certainly conviction cannot be said to be il- legal."
49. In the present case, the testimonies of police officials are consistent. Learned Trial Court found them to be credible. Learned counsel for the defence pointed out various contradictions but these were not significant enough to make the testimonies suspect. Hence, the learned Trial Court had rightly accepted the testimonies and held that the accused was found in possession of 260 grams of black balls.
50. It was submitted that the seal was not handed over to any person. Uma Dutt (PW1) stated that the seal was handed over to him but police took it away from him. It was submitted that since the seal remained with the police party, therefore, there was the possibility of tampering with the case property. This submission is not acceptable. The testimony of Uma Dutt is not credible as noticed above and his testimony cannot be used to hold that the seal was not handed over to any person. In any case, it was laid down by a full bench of Punjab and Haryana High Court in Piara Singh v. State of Punjab, 1982 SCC OnLine P&H 55:
1982 Cri LJ 1176 (FB) that there is no requirement in Punjab Police Rules to hand over the seal to independent persons. It was observed:48
2025:HHC:10009-DB "35. To conclude, it must be held that there is neither a statutory requirement nor "a precedential mandate for handing over the seal used by the police officer in the course of an investigation to a third person forthwith. It necessarily follows therefrom that even where it has been so done, the non-production of such a witness cannot by itself affect the merits of the trial."
51. It was submitted that the seals were not produced before the Court and the same is fatal to the prosecution's case. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Varinder Kumar v. State of H.P., (2020) 3 SCC 321: (2020) 2 SCC (Cri) 54: 2019 SCC OnLine SC 170 that failure to produce the seal in the Court is not fatal. It was observed on page 324: -
"6. We have considered the respective submissions. PW 10 is stated to have received secret information at 2.45 p.m. on 31-3-1995. He immediately reduced it into writing and sent the same to PW 8, Shri Jaipal Singh, Dy. SP, CID, Shimla. At 3.05 p.m. PW 7, Head Constable Surender Kumar stopped PW 5 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". PW 8 Shri Jaipal Singh, Dy. SP, CID, Shimla who had arrived by then gave notice to the appellant and ob- tained his consent for carrying out the search. Two sam- ples of 25 gm each were taken from the two gunny bags and sealed with the seal 'S', and given to PW 5. PW 2 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 per- verse in view of the two specimen seal impressions having been marked as Exts. PH and PK. It is not the case of the 49 2025:HHC:10009-DB appellant that the seals were found tampered in any man- ner."
52. 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.
53. In the present case, the sample seals were produced before the Court. The sample seals were also affixed on the NCB- 1 form. When the case property was produced before the Court, the Court noticed that it had four impressions of seals of FSL. Some impressions of seal 'X', and some impressions of seal 'Y' and the parcels were intact. The Court did not mention that the seals were not legible. The Court had sample seals to compare the seals put on the parcels and once it had noticed the seal impressions 'X' and 'Y', the plea that the case property was tampered with is not acceptable.
54. It was submitted that there is a violation of Section 52-A of the ND&PS Act because no sample was taken on the spot and the whole of the case property was sent to FSL. This submission will not help the accused. It was laid down in Sandeep Kumar Vs State of H.P., 2022 Law Suits (HP) 149, that the provisions of Section 52-A is not mandatory and non- 50
2025:HHC:10009-DB compliance with Section 52-A is not fatal to the prosecution case. It was observed: -
"24. It has also been strenuously argued on behalf of the appellants that the investigating agency had failed to comply with the provisions of Section 52-A of the NDPS Act and thus cast a shadow of doubt on its story. The con- tention raised on behalf of appellants is that the rules framed for investigations under the NDPS Act are manda- tory and have to be strictly followed. Neither the required sample was taken on the spot nor the samples were pre- served by complying with Section 52-A of the Act. It has been argued that compliance of Section 52-A of the Act is mandatory.....
xxxxxx
27. The precedent relied upon on behalf of the appellants, however, did not lay down the law that non-compliance with Section 52-A of the Act is fatal to the prosecution case under the NDPS Act. On the other hand, in State of Punjab vs. Makhan Chand, 2004 (3) SCC 453, the Hon'ble Supreme Court while dealing with the question of the ef- fect of non-compliance of Section 52-A has held as under:
-
10. This contention too has no substance for two reasons. Firstly, Section 52A, as the marginal note indicates, deals with the "disposal of seized narcotic drugs and psychotropic substances". Under Sub-
section (1), the Central Government, by notification in the Official Gazette, is empowered to specify cer- tain narcotic drugs or psychotropic substances hav- ing regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after fol- lowing the procedure prescribed in Sub-sections (2) & (3). If the procedure prescribed in Sub-sections (2) & (3) of Section 52A is complied with and upon 51 2025:HHC:10009-DB an application, the Magistrate issues the certificate contemplated by Subsection (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such in- ventory, photographs of narcotic drugs or sub- stances and any list of samples drawn under Sub- section (2) of Section 52A as certified by the Magis- trate, would be treated as primary evidence in re- spect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for the search of an accused but only deals with the disposal of seized narcotic drugs and psychotropic substances.
11. Secondly, when the very same standing orders came up for consideration in Khet Singh v. Union of India, 2002 (4) SCC 380, this Court took the view that they were merely intended to guide the officers to see that a fair procedure is adopted by the Officer- in-Charge of the investigation. It was also held that they were not inexorable rules as there could be cir- cumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention."
55. It was laid down by the Hon'ble Supreme Court in Narcotics Control Bureau v. Kashif, 2024 SCC OnLine SC 3848, that the violation of Section 52-A does not entitle a person to be released on bail. It was observed:
"39. The upshot of the above discussion may be summa- rized as under:
(i) The provisions of the NDPS Act are required to be interpreted keeping in mind the scheme, object and 52 2025:HHC:10009-DB purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Sec-
tion 37 of the NDPS Act which are mandatory in na- ture. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and give effect to the Inter- national Conventions on Narcotic Drugs and Psy- chotropic Substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be re- leased on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or there- after, would by itself not make the entire evidence collected during the course of investigation, inad- missible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would en- title the accused to be released on bail. The Court will have to consider other circumstances and the 53 2025:HHC:10009-DB other primary evidence collected during the course of the investigation, as also the statutory presump- tion permissible under Section 54 of the NDPS Act."
56. This judgment was followed in Bharat Aambale v. State of Chhattisgarh, 2025 SCC OnLine SC 110 and it was held that non- compliance of Section 52-A of the ND&PS Act does not vitiate the trial. It was observed:
"50. We summarize our final conclusion as under:--
(I) Although Section 52A is primarily for the dis-
posal and destruction of seized contraband in a safe manner yet it extends beyond the immediate con- text of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inas- much as it provides for the preparation of invento- ries, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in the presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohan- lal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing sam- ples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order(s) thereun- 54 2025:HHC:10009-DB der would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in the original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Or- der(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in- charge of the investigation, and as such what is re- quired is substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereun- der will not be fatal to the trial unless there are dis- crepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence ad- duced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confi- dence and satisfies the court as regards the recovery as well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and cir- cumstances of each case.
55
2025:HHC:10009-DB (VIII) Where there has been a lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Actor the prosecu- tion in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the ac- cused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non- compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non- compliance does not affect its case against the ac- cused, and the standard of proof required would be beyond a reasonable doubt.
57. In the present case, no foundational facts were brought on record and the accused cannot take any advantage of the fact that there was non-compliance with Section 52-A of the ND&PS Act.
58. The report of the analysis shows that the seals were intact and these were compared with the seals sent separately. NCB-I form bears signatures of chemical examination which 56 2025:HHC:10009-DB shows that he had seal impression with him for comparison and the report that seals were intact shows the integrity of the case property. 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."
59. Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held:
"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."
60. 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 57 2025:HHC:10009-DB 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 days 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 58 2025:HHC:10009-DB is no evidence to show that the same was ever tampered with."
61. 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 Singh, 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 59 2025:HHC:10009-DB seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete."
(Emphasis supplied)
62. Therefore, the prosecution version is to be accepted as correct that the case property remained intact till its analysis at SFSL, Junga.
63. The substance was found to be charas. Hence, it was duly proved on record that the accused was found in possession of charas.
64. The learned Trial Court had calculated the quantity of charas based on the percentage of resin found by the laboratory. This Court held in State of Mahboon Khan 2014 Crl. L.J. 705 that the entire quantity of charas has to be considered while determining the possession of charas by the accused. Since no appeal has been preferred against the reduction of quantity, therefore, nothing more is required to be said regarding this aspect.
65. It was submitted that the diary register was not brought on record to show the delivery of the special report to the Superintendent of Police, Solan. This submission is not acceptable. HHC Solan Lal (PW4) stated that Rajesh Kumar handed over the special report to him on 13.8.2009. He handed 60 2025:HHC:10009-DB over the special report to Prem Thakur, Superintendent of Police, Solan who perused the same and made his endorsement and signatures on both copies. He handed over one copy to him (Sohan Lal) and returned another copy to his Reader. He stated in his cross-examination that he was not aware whether the special report was entered in the police station or not. His departure was not entered in the register. He denied that no report was handed over to him by the Investigating Officer or he had not handed over the report to the Superintendent of Police, Solan.
66. His statement is corroborated by ASI Yashwant Singh (PW7) who stated that he was called by Superintendent of Police, Solan on 13.8.2009. HHC Solan Lal was present in the office. Superintendent of Police Prem Lal handed over the special report to him after making the endorsement. He handed over one copy to HHC Sohan Lal. He produced the original special report in the Court. He stated in his cross-examination that the diary register is maintained in the office of Superintendent of Police. He was not aware whether any diary register was maintained. He denied that no special report was received.
67. Their statements are corroborated by the endorsement made on the special report (Ex.PW4/A) regarding 61 2025:HHC:10009-DB its receipt by the Superintendent of Police, Solan. There is nothing in their cross-examination to show that they were making false statements. Their testimonies cannot be doubted merely because the diary register was not produced to corroborate the testimony of Sohan Singh regarding his departure. It was laid down by the Hon'ble Supreme Court in Kalpnath Versus State AIR 1998 SC 201 that the prosecution is not expected to produce the diaries as a matter of course and the defence can move the Court to bring the daily diary. It was observed:
"No doubt Daily Diary is a document which is in constant use in the police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by the prosecution as a matter of course in every case, the function of the police station would be greatly impaired. It is neither desirable nor fea- sible for the prosecution to produce such diaries in all cases. Of course, it is open to the defence to move the Court for getting down such diaries if the defence wants to make use of it."
68. This position was reiterated in Chet Ram Versus State of H.P. Cr. Appeal no. 191/06, decided on 25.7.2008 (HP) and it was held as under:
"It is true that Rojnamcha was not produced in the Court to prove the departure of PW-8 HC Ram Lal and other po- lice officials for organizing a "Nakka" at the site, in ques- tion, or to prove their return to the Police Station from 62 2025:HHC:10009-DB the said site, but merely for this omission, it cannot be held that PW-8 HC Ram Lal, accompanied by PW-6 LHC Narpat Ram, PW-7 Constable Dhan Dev and other police officials, did not go to the spot to organize a "Nakka", especially when the appellant has not taken the plea that he was picked up from some different place and brought to the police station."
69. Therefore, the prosecution's version cannot be doubted due to the failure to produce the entry in the daily diary.
70. Learned Trial Court sentenced the accused to undergo rigorous imprisonment for four months and pay a fine of ₹4,000/-. Considering the quantity of charas found in possession of the accused, the sentence of four months is not excessive and no interference is required with it.
71. No other point was urged.
72. In view of the above, the present appeal fails and the same is dismissed.
73. Records be sent back forthwith. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 10th April, 2025 (Chander)