Himachal Pradesh High Court
Reserved On: 31.07.2025 vs State Of H.P on 18 August, 2025
2025:HHC:27712 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 486 of 2012 Reserved on: 31.07.2025 .
Date of Decision: 18.08.2025
Balwant Singh ... 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. Vijender Katoch, Advocate. For the Respondent : Mr. Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction and order of sentence dated 03.11.2012 passed by learned Special Judge, Hamirpur, H.P. vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') and was sentenced to undergo rigorous imprisonment for three years, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 18/08/2025 21:27:14 :::CISPage |2 2025:HHC:27712 pay a fine of ₹ 30,000/- and in default of payment of fine to undergo further simple imprisonment for three months for the .
commission of 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 NDPS Act. It was asserted that PSI Neeraj Kumar (PW-10), ASI Ashok Kumar (PW-2), HC Surjeet Singh (not examined), Constable Rajeev Kumar (not examined), and HHG Surinder Pal (PW-3) had gone towards Dangdi, Kangoo, Batrana, etc. on 06.06.2011. They were checking the traffic at 6:00 p.m. at Budhana when a vehicle bearing registration No. DL-3CU-0887 came to the spot. The police signalled the driver to stop the vehicle. The driver identified himself as Balwant Singh. The police found a polythene packet containing a plastic box near the seat of driver. The police opened the box and found a stick and a sphere like cannabis. The police also found pieces of cannabis in the polythene. Balwant Singh could not produce any documents to possess the cannabis. The police weighed the cannabis and found the weight of the stick-like ::: Downloaded on - 18/08/2025 21:27:14 :::CIS Page |3 2025:HHC:27712 cannabis as 250 grams and the weight of the cannabis pieces as 420 grams. Police recovered 670 grams of cannabis. The cannabis .
was put in two different parcels, and each parcel was sealed with four impressions of seal 'A'. Seal impression (Ext.PW-2/C) was taken on a separate piece of cloth, and the seal was handed over to Beer Singh after its use. The charas was seized vide memo (Ext.PW-2/B). PSI Neeraj Kumar (PW-10) prepared a rukka (Ext.PW-10/A) and sent it to the Police Station for the registration of the F.I.R. through HHC Surinder Pal (PW-3). F.I.R. (Ext.PW-9/A) was registered in the Police Station. The Car, along with its RC (Ext.P-1), Driving license (Ext.P-2), and keys, was seized vide memo (Ext. PW-2/B). PSI Neeraj Kumar (PW-10) prepared a site plan (Ext.PW-10/B). The search of the accused was conducted, and a memo of personal search (Ex.PW-10/C) was prepared. NCB-I form (Ext.PW-10/E) was prepared on the spot. The accused, case property, and case file were produced before Inspector Jasbir Singh (PW-11), SHO Police Station Nadaun, who re-sealed the parcel with three seals of 'T'. He obtained the sample seal on a separate piece of cloth (Ext.PW-11/A) and prepared a resealing memo (Ext.PW-11/B). Seal impression (Ext.PW-11/A) was taken on the NCB-I form. The case property was handed over to HC Sanjay ::: Downloaded on - 18/08/2025 21:27:14 :::CIS Page |4 2025:HHC:27712 Kumar (PW-4), who made an entry in the Malkhana Register and sent the case property to State Forensic Science Laboratory (SFSL), .
Himachal Pradesh, Junga through Constable Baldev Singh (PW-6) on 08.6.2011 vide RC (Ext.PW-4/B). Constable Balev Singh (PW-6) deposited all the articles at SFSL, Junga, and handed over the receipt to MHC Sanjay Kumar (PW-4) on his return. The result of chemical analysis (Ext.PW-10/G) was issued, in which it was mentioned that the substance analysed was Charas containing 24.56% and 12.58 o/f ww resin, respectively. Special report (Ext.PW-7/A) was prepared, and the same was sent through HHC Ashok Kumar (PW-5) to SDPO Barsar, who made an endorsement and handed it over to his Reader HC Vinod Kumar (PW-7).
Statements of prosecution witnesses were recorded as per their version and after completion of the investigation, the 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 NDPS Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined 11 witnesses to prove its case.
Sushil Kumar (PW1) is the independent witness, who did not ::: Downloaded on - 18/08/2025 21:27:14 :::CIS Page |5 2025:HHC:27712 support the prosecution case. ASI Ashok Kumar (PW-2) and HHG Surinder Pal (PW-3) are the officials witness to the recovery.
.
HHC Sanjay Kumar (PW-4) was posted as MHC with whom the case property was deposited. HHC Ashok Kumar (PW-5) carried the Special report to SDPO, Barsar. Constable Baldev Singh (PW-6) carried the case property SFSL, Junga. HC Vinod Kumar (PW-7) was posted as Reader to SDPO, Barar. HHC Janak Raj (PW-8), proved r to the entry in the daily diary. ASI Suresh Kumar (PW-9) signed the F.I.R. made an endorsement on the Rukka. PSI Neeraj Kumar (PW-10) conducted the investigation. Inspector Jasbir Singh resealed the case property and prepared the charge sheet after the completion of the investigation.
5. The accused, in his statement recorded under Section 313 of Cr.P.C., stated that he was innocent. The witnesses have deposed against him falsely. He stated initially that he wanted to produce defence evidence, but subsequently made a statement that he did not want to produce any evidence in his defence.
6. Learned Trial Court held that the testimonies of prosecution witnesses corroborated each other on material particulars. The mere fact that independent witnesses did not ::: Downloaded on - 18/08/2025 21:27:14 :::CIS Page |6 2025:HHC:27712 support the prosecution's case was not sufficient to discard the same. The report of the analysis (Ext.PW-10/G) shows the .
integrity of the case property. Minor contradictions in the statements of witnesses were not sufficient to discard the prosecution's case. Non-mentioning the name of Surjeet Singh by the witnesses in their testimonies was not relevant. Non-
examination of Beer Singh was not fatal to the prosecution case;
7. to therefore, the accused was convicted and sentenced as aforesaid.
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 erred in convicting and sentencing the accused. The prosecution has examined only Sushil Kumar (PW-1), who did not support the prosecution's case.
Independent witness Beer Singh was not examined, and an adverse inference should have been drawn due to his non-examination.
The seal was not produced before the learned Trial Court, and it made the prosecution's case regarding the integrity of the case property highly suspect. The prosecution projected a case of chance recovery, but also associated two independent witnesses.
The statement of Surinder Pal (PW-3) was not satisfactory. Section 42 of the NDPS Act was not complied with. The contradictions were ::: Downloaded on - 18/08/2025 21:27:14 :::CIS Page |7 2025:HHC:27712 ignored. The quantity of resin should have been considered instead of the whole quantity. 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. Vijender Katoch, learned counsel for the appellant and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.
9. Mr. Vijender Katoch, learned counsel for the appellant, submitted that the accused is innocent and he was falsely implicated. There are various contradictions in the statements of official witnesses. One independent witness, namely, Beer Singh was not examined, and the other did not support the prosecution's case. There was non-compliance with Section 52A of the NDPS Act, which is fatal to the prosecution's case. The learned Trial Court had imposed an excessive sentence, which is disproportionate to the crime. The quantity of resin was not considered. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He relied upon the following judgments in support of his submissions:
::: Downloaded on - 18/08/2025 21:27:14 :::CISPage |8 2025:HHC:27712 Union of India vs. Mohanlal & anr 2016 INSC 97;
Yusuf @ Asif vs. State 2023 INSC 912;
.
Mohammed Khalid and another vs. The State of Telengana 2024 INSC 158;
Samir Ghosh vs. State of West Bengal 2001(1) Crimes 505 Sansar Chand vs. State of Himachal Pradesh 2023(4) SimLC 1908 ; and Keshav Dutt vs. State of Haryana 2010(9) SCC 286.
10. Mr. Prashant Sen, learned Deputy Advocate General, submitted that the prosecution case cannot be doubted because the independent witness did not support the prosecution case. The second witness was given up because he was won over. The provisions of Section 52A of the NDPS Act are not mandatory but directory and the prosecution case cannot be doubted because of non-compliance with Section 52A of the NDPS Act. The prosecution had proved on record that the petitioner was in possession of 670 grams of charas, and the sentence of three years imposed by the learned Trial Court is not excessive. 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.
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12. Sushil Kumar (PW-1) stated that he did not know anything about the case. He came to know about the case when he .
was at Kangoo after dropping the passenger. He was permitted to be cross-examined by the learned Public Prosecutor. He denied that police searched the vehicle bearing registration No. DL-3CU-0887 and recovered a polythene pouch containing 670 grams of Charas. He denied that charas was seized after sealing it on the spot.
He denied his previous statement recorded by the police but admitted his signatures on the memo (Ext.PW-
1/A) and the parcel. He stated that he has signed the memo at Kangoo and not at Budhana.
13. It was submitted that the testimony of this witness makes the prosecution's case highly suspect. He stated that he had put the signatures at Kangoo and not at Budhana, which supports the defence version. This submission cannot be accepted. He admitted his signatures on the seizure memo (Ex. PW-1/A). It was laid down by the Hon'ble Supreme Court in Hanif Khan v. Central Bureau of Narcotics, (2020) 16 SCC 709: 2019 SCC OnLine SC 1810 that where the hostile witnesses admitted their signatures on the seizure memo, the prosecution case cannot be doubted. It was observed at page 712:
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 10 2025:HHC:27712 "11. The fact that the independent witnesses may have turned hostile is also not very relevant, so long as they have admitted their signatures on the seizure memo. The seizure memo is also signed by the accused. There has been .
compliance with Section 50 of the NDPS Act also, as the appellant was duly informed of his legal rights...."
14. Sushil Kumar (PW-1) denied his previous statement. PSI Neeraj Kumar (PW-10) stated that he had recorded the statement of Sushil Kumar (PW-1) correctly as per his version. This was not even suggested to be incorrect in the cross-examination. Thus, Sushil Kumar (PW-1) is shown to have made two inconsistent statements, one before the police and the other before the learned Trial Court, and his credit has been impeached under Section 155(3) 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. 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 clearly 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 result of ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 11 2025:HHC:27712 such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed regarding 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 considering 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 discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
15. 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-examined 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 (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".
16. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri. L.J. 4254, that the prosecution's version cannot be ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 12 2025:HHC:27712 discarded because the independent witnesses did not support it. 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 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 a hostile witness can be relied upon by the prosecution version. Merely because a witness has turned hostile, the same does not render his evidence or testimony inadmissible in a trial, and such a 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 evidence of a hostile witness cannot be altogether discarded, and as such, it is open for the Court to rely on the dependable part of such evidence which stands duly corroborated by other reliable evidence on record.
In a case titled Selvaraj @ Chinnapaiyan versus State represented by Inspector of Police, (2015) 2 SCC 662, the Apex Court has observed that in a situation/case, wherein the witness deposes falsely in his/her cross-examination, that itself is not sufficient to outrightly discard his/her testimony in examination-in-chief. The Court held that a conviction can be recorded believing the testimony of such a witness given in examination-in-chief; however, such evidence is required to be examined with great caution. In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh, (2011) 5 SCC 123, it has been held as under: -
"The seizure witness turning hostile may not be very significant by itself, as it is not an uncommon ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 13 2025:HHC:27712 phenomenon in criminal trials, particularly in cases relating to the NDPS Act."
17. Therefore, the accused cannot be acquitted simply .
because the independent witness has turned hostile.
18. Beer Singh, another witness, was given up by the prosecution as having been won over. It was submitted that an adverse inference should be drawn against the prosecution for its non-examination. This submission cannot be accepted. It was held in Hukam Singh v. State of Rajasthan, (2000) 7 SCC 490: 2000 SCC (Cri) 1416: 2000 SCC OnLine SC 1311 that the Public Prosecutor is not obliged to examine a witness who will not support the prosecution.
It was observed at page 495:
"13. When the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution".
It is clear from the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 14 2025:HHC:27712 inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court .
considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that anyone among that category would not support the prosecution version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor fairly. He can interview the witness beforehand to enable him to know well in advance the stand that particular person would be adopting when examined as a witness in court.
15. A four-judge Bench of this Court had stated the above legal position thirty-five years ago in Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ 226]. It is contextually apposite to extract the following observation of the Bench:
"It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court."::: Downloaded on - 18/08/2025 21:27:14 :::CIS
P a g e | 15 2025:HHC:27712
16. The said decision was followed in Bava Hajee Hamsa v. State of Kerala [(1974) 4 SCC 479: 1974 SCC (Cri) 515:
AIR 1974 SC 902]. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033], Krishna .
Iyer J., speaking for a three-judge Bench, had struck a note of caution that while a Public Prosecutor has the freedom "to pick and choose" witnesses he should be fair to the court and the truth. This Court reiterated the same position in Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158: 1976 SCC (Cri) 527].
19. It was laid down by the Hon'ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196, that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the testimony of the witnesses appears to be truthful, the non-
examination of other witnesses will not make the testimony doubtful. It was observed: -
"[10] It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 16 2025:HHC:27712 therefore, to examine the evidence of the two eye witnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained. "
.
20. This position was reiterated in Rohtash vs. State of Haryana 2013 (14) SCC 434, and it was held that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed:
14. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses, is whether the prosecution is bound to examine all the listed/cited witnesses. This Court, in Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.
15. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a similar view has been reiterated, observing that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose to examine and that the duty of a fair prosecutor extends only to the ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 17 2025:HHC:27712 extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.
16. In Masalti v. the State of U.P., AIR 1965 SC 202, this Court .
held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr. P.C. (See also: Bir Singh & Ors. vs. State of U.P., (1977 (4) SCC 420)
17. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328, this Court reiterated a similar view and held that if the eye-
witness(s) is deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.
18. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this Court held as under:
"10. ... Material witnesses considered necessary by the prosecution for unfolding the prosecution's story alone need to be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has not shown how the prosecution's story is rendered less trustworthy as a result of the non-
production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally, we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version....."
19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC 2914, this Court reiterated a similar view and further observed:
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 18 2025:HHC:27712 "24. ... Illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should .
not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness....."
20. In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991 SC 1346, this Court held:
"10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence, and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. Nonetheless, if either of the parties withholds any evidence which could be produced and which, if produced, would be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration
(g) to Section 114 of the Evidence Act.
.. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or another proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
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21. In Banti @ Guddu v. State of M.P. AIR 2004 SC 261, this Court held:
"12. In trials before a Court of Session, the prosecution "shall be conducted by a Public Prosecutor". Section .
226 of the Code of Criminal Procedure, 1973, enjoins him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused.......If that version is not in support of the prosecution's case, it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for the prosecution.
13. When the case reaches the stage envisaged in Section 231 of the Code, the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution's case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the presences cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects.......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
14. It is open to the defence to cite him and examine him as a defence witness."
22. The said issue was also considered by this Court in R. Shaji (supra), and the Court, after placing reliance upon its ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 20 2025:HHC:27712 judgments in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, and Kishan Chand v. State of Haryana JT 2013 (1) SC 222, held as under:
"22. In the matter of the appreciation of evidence of .
witnesses, it is not the number of witnesses, but the quality of their evidence, that is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus the quality and not quantity which determines the adequacy of evidence, r as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this does not carry any weight."
23. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution, and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness if it is so ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 21 2025:HHC:27712 warranted in the interests of justice. The evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the .
same.
21. This position was reiterated in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was observed at page 224: -
Non-examination of the witness
34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution, along with the adequacy of the materials, sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice.
Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.
35. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369: 1976 SCC (Cri) 646]: (SCC pp. 377- 78, para 13) "13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the "pakodewalla", hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 22 2025:HHC:27712 adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious .
misconception of the correct legal position. The onus of proving the prosecution's case rests entirely on the prosecution, and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness, even on minor points, would undoubtedly lead to rejection of the prosecution's case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted, a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country, there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore, nobody wants ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 23 2025:HHC:27712 to be a witness in a murder or any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, .
there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes." (emphasis supplied)
36. This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195]: (SCC pp. 410-11, para 19) "19. In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eyewitness if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCR 981:
AIR 1957 SC 614], Kunju v. State of T.N. [Kunju v. State of T.N., (2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 24 2025:HHC:27712 Chand v. State of Haryana [Kishan Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807] .)"
22. Thus, no adverse inference can be drawn for the non-
.
examination of Beer Singh.
23. It was submitted that the examination of Beer Singh was essential because the seal was handed over to him, and the prosecution's case would become suspect for the non-production of the seal. This submission is not acceptable. It was laid down by this Court in Fredrick George v. State of Himachal Pradesh, 2002 SCC OnLine HP 73: 2002 Cri LJ 4600 that there is no requirement to produce the seal before the Court. It was observed at page 4614:
"62. It is a fact that the seals used for sealing and re-sealing the bulk case property and the samples have not been produced at the trial. In Manjit Singh's case (2001 (2) Cri LJ (CCR) 74) (supra), while dealing with the effect of non-
production of the seal, this Court held as under:
"In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether, by non-production of the seal at the trial, any doubt is raised about the safe custody of the case property or not."
63. In view of the above position in law and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the non-
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 25 2025:HHC:27712 production of the seals used for sealing and re-sealing of the bulk case property of the samples is also of no help to the accused."
24. It was laid down by the Hon'ble Supreme Court in .
Varinder Kumar Versus State of H.P. 2019 (3) SCALE 50 that failure to produce the seal in the Court is not fatal. It was observed:-
"6. We have considered the respective submissions. PW10 is stated to have received secret information at 2.45 P.M. on 31.03.1995. He immediately reduced it into writing and sent the same to PW8, Shri Jaipal Singh, Dy. S.P., C.I.D., Shimla. At 3.05 P.M., PW7, Head Constable Surender Kumar, stopped PW5, Naresh Kumar and another independent witness, Jeevan Kumar, travelling together, whereafter the appellant was apprehended at 3.30 P.M. with two Gunny Bags on his Scooter, which contained varying quantities of 'charas'. PW8, Shri Jaipal Singh, Dy.S.P., C.I.D., Shimla, who had arrived by then, gave notice to the appellant and obtained his consent for carrying out the search. Two samples of 25 gms.
Each were taken from the two Gunny Bags and sealed with the seal 'S' and given to PW5. PW2, Jaswinder Singh, the Malkhana Head Constable, resealed it with the seal 'P'. The conclusion of the Trial Court that the seal had not been produced in the Court is, therefore, perverse in view of the two specimen seal impressions having been marked as Exhibits PH and PK. It is not the case of the appellant that the seals were found tampered with in any manner."
25. It was specifically held in Varinder Kumar (supra) that when the sample seals were produced before the Court, the conclusion of the Trial Court that the seals were not produced before the Court was perverse.
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 26 2025:HHC:27712
26. In the present case seal impression was obtained on the NCB-I form (Ext.PW-10/E). Sample seals (Ext.PW-11/A and .
Ext.PW-2/C) were produced before the Court. The learned Trial Court noticed while recording the statement of PSI Neeraj Kumar (PW-10) that the parcel was duly sealed with four seal impressions of seal 'A' and three seal impressions of seal 'T'. The learned Trial Court had sample seals to compare the seal and had satisfied itself regarding the correctness of the seal impression. Therefore, non-
examination of Beer Singh and non-production of the seal will not affect the prosecution case adversely.
27. An entry in the daily diary (Ext.PW-2/A) shows that ASI Ashok Kumar (PW-2), HC Surjit Singh, Constable Rajiv Kumar and HHC Surinder Pal (PW-3) were the members of the police party. It was submitted that HC Surjit Singh and Constable Rajiv Kumar were not examined. The role played by them was also not explained. HHC Surinder Pal (PW-3) did not mention the name of HC Surjit Singh. This makes the prosecution's case highly suspect.
This submission was only stated to be rejected. The prosecution examined one independent witness, Sushil Kumar (PW-1), and three official witnesses, ASI Ashok Kumar (PW-2) and HHC Surinder Pal (PW-3) and PSI Neeraj Kumar (PW-10). All the ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 27 2025:HHC:27712 witnesses who were present on the spot were not required to be examined as held in Hukam Singh (supra) because their .
examination would have repeated what was stated by the other witnesses. Thus, the fact that HC Surjit Singh and Constable Rajiv Kumar were not examined will not make the prosecution's case suspect. Entry in the daily diary proved that HC Sushil Singh was with the policy party. His name was mentioned by the official (PW-3) is material.
r to witnesses and non-mentioning of his name by HHG Suridner Pal
28. It was submitted that the prosecution projected a case of chance recovery. However, two independent witnesses, Sushil Kumar (PW-1) and Beer Singh, were present with the police party, and their presence on the spot makes the prosecution's case about the chance recovery doubtful. This submission cannot be accepted.
It was specifically stated that the police party was checking the vehicles; therefore, many vehicles and persons would have been stopped on the spot, and the presence of independent witnesses is not doubtful.
29. It was submitted that ASI Ashok Kumar (PW-2) stated in his cross-examination that the measurement of the small ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 28 2025:HHC:27712 plastic box was approximately one foot, whereas HHG Surinder Pal (PW-3) stated in his corss-examination that the small plastic box .
was more than 7 to 8 inches. These are the major contradictions which made the prosecution case highly suspect. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Goverdhan v. 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: -
"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 thereof should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. In this context, reference may be ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 29 2025:HHC:27712 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 witness and whether the earlier evaluation of the evidence is shaken as to render r it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a 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 ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 30 2025:HHC:27712 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 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. 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 to confront him during cross-examination. Merely because there is an 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:::: Downloaded on - 18/08/2025 21:27:14 :::CIS
P a g e | 31 2025:HHC:27712 "155. Impeaching the credit of a 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 a contradiction. Only such an inconsistent statement, which is liable to be "contradicted", would affect the credit of the witness. Section r 145 of the Evidence Act also enables the cross-
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:
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 32 2025:HHC:27712 "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 videotape 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, 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 take place in rapid succession or in a short time span. A ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 33 2025:HHC:27712 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 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's 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 a witness, the proper course is to ignore that fact only unless it goes to the root of the matter to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version, perhaps for fear that 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 ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 34 2025:HHC:27712 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 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 r considered....'"
30. In the present case, ASI Ashok Kumar (PW-2) stated that the length of the plastic box was approximately one foot, and HHG Suridner Pal (PW-3) stated that the small box was 7-8 inches.
One foot consists of twelve inches and will be more than 7-8 inches. Therefore, there is no real contradiction at all. Further, it is nobody's case that the police had measured the plastic box on the spot to know its exact length. Therefore, both the witnesses have given their estimation of its length, which may or may not be correct depending upon their sense of measurement and cannot be used for discarding the prosecution case.::: Downloaded on - 18/08/2025 21:27:14 :::CIS
P a g e | 35 2025:HHC:27712
31. PSI Neeraj Kumar (PW-10) stated in his cross-
examination that he had gone for patrolling at 1:30 a.m. on the .
same day and returned to the Police Station at 2:50 p.m. HHG Suridner Pal (PW-3) admitted that they were present at Village Budhana at 12:30 p.m. Both these statements do not contradict each other because the police party was also on patrolling duty before proceeding for patrolling vide entry (Ext. PW-2/A).
at 2:30 p.m. and 6:00 p.m. r to Therefore, they could be present at Budhana at 12:30 p.m. as well as
32. It was suggested to ASI Ashok Kumar (PW-2) in his cross-examination that contraband was recovered from the house of the accused, and proceedings were conducted at Kangoo at 4:30 p.m. This suggestion means that the recovery of contraband is not disputed. The only dispute is regarding the place from which the recovery was effected. It was laid down by the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the innocence or guilt of the accused. It was observed at page 382: -
"34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 36 2025:HHC:27712 credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.
35. In Tarun Bora v. State of Assam [Tarun Bora v. State of .
Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365IPC read with Sections 3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], this Court, while considering the evidence on record, took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, concluded that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paras 15, 16 and 17, respectively, as under: (Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568], SCC pp. 43-44) "15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place, and when his eyes were unfolded, he could see his younger brother Kumud Kakati (PW 2) and his wife Smt Prema Kakati (PW 3). The place was Duliapather, which is about 6-7 km away from his Village, Sakrahi. The witness identified the appellant, Tarun Bora, and stated that it is he who took him in an Ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination, the witness stated as under: 'Accused Tarun Bora did not blind my eyes, nor did he assault me.'
17. This part of the cross-examination is suggestive of the presence of the accused Tarun Bora in the whole episode.::: Downloaded on - 18/08/2025 21:27:14 :::CIS
P a g e | 37 2025:HHC:27712 This will suggest the presence of the accused, Tarun Bora, as admitted. The only denial is that the accused did not participate in blind-folding the eyes of the witness, nor assaulted him."
.
37. In Rakesh Kumar v. State of Haryana [Rakesh Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri) 256], this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34IPC. While reappreciating the evidence on record, this Court noticed that in the cross-examination of PW 4 Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court, taking into consideration the nature of the suggestion put by the defence and the reply, arrived at the conclusion that the presence of the accused, namely, Dharam Vir, was established on the spot at the time of the occurrence. We quote the following observations made by this Court in paras 8 and 9, respectively, as under (SCC p.
36) "8. PW 3, Bhagat Singh, stated in his examination-in- chief that he had identified the accused at the time of the occurrence. But curiously enough, he was not cross-
examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge.
No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4 Sube Singh stated that the accused, Dharam Vir, was wearing a shirt of white shirt. It was suggested to him on behalf of the accused that Dharam Vir was wearing a cream-coloured shirt of cream colour. In answer to that suggestion, PW 4 said it is not correct that Dharam Vir, the accused, was wearing a shirt of a cream colour and not a white colour at that time.' The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 38 2025:HHC:27712 accused Dharam Vir on the spot at the time of occurrence."
38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross-
.
examination, if found to be incriminating in nature in any manner, would definitely bind the accused, and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except for the concession on a point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner."
33. This suggestion corroborates the version regarding the recovery of the possession of the accused.
34. It was submitted that entries regarding the departure of the police party at 1:30 a.m. were not brought on record, which makes the prosecution's case suspect. This submission is not acceptable. The question regarding the movement of the police party was asked in the cross-examination and the prosecution was not required to prove the case of the defence suggested to the witnesses in the cross-examination. In any case, 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 ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 39 2025:HHC:27712 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 feasible 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."
35. This position was reiterated in Chet Ram Versus State of H.P. Cr. Appeal no. 151/06, 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 police officials for organizing a "Nakka" at the site, in question, or to prove their return to the Police Station from 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."
36. Hence, the prosecution case cannot be doubted because the daily diary was not produced in the Court.
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 40 2025:HHC:27712
37. ASI Ashok Kumar (PW-2), HHG Surinder Pal (PW-3) and PSI Neeraj Kumar (PW-10) consistently stated that the police .
party was checking the vehicles when a car bearing registration No. DL-3CU-0887 came from Kangoo, which was signalled to stop.
The accused was driving the vehicle. The police noticed a polythene envelope lying beside the driver's seat and checked it.
The police recovered 670 grams of charas in different forms, which false statements.
were sealed by the police. There is nothing in the cross-
examination of these witnesses to show that they were making Nothing was suggested to them to show that they had any enmity or reason to depose against the accused. It was submitted that they are police officials and their testimonies cannot be relied upon. This was only stated to be rejected. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri.L.J.4254 that the testimonies of the police officials cannot be discarded on the ground that they belong to the police force. It was observed:
"11. It is a settled proposition of law that the sole testimony of the police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. There is also no rule of law which lays ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 41 2025:HHC:27712 down that no conviction can be recorded on the testimony of a police officer, even if such evidence is otherwise trustworthy. The rule of prudence may require more careful scrutiny of their evidence. Wherever the evidence of a police .
officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction, and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force."
38. Similar is the judgment in Karamjit Singh versus State AIR 2003 S.C 3011 wherein it was held:
"The testimony of police personnel should be treated in the same manner as the testimony of any other witness, and there is no principle of law that without corroboration by independent witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons, and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case, and no principle of general application can be laid down." (Emphasis supplied)
39. This position was reiterated in Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, wherein it was observed:
22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy, then basing the conviction thereupon cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi) 2013 (6) SCC 588
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48], State (Govt.::: Downloaded on - 18/08/2025 21:27:14 :::CIS
P a g e | 42 2025:HHC:27712 of NCT of Delhi) v. Sunil [(2001) 1 SCC 652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595: AIR .
2013 SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large shows their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him, but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that the quality of the evidence weighs over the quantity of evidence.
23. Referring to State (Govt. of NCT of Delhi) v. Sunil 2001 (1) SCC 652, in Kulwinder Singh v. State of Punjab (2015) 6 SCC 674, this court held that: --
"23. ... That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record, the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."
24. We must note that in the former it was observed: --
"21... At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature... If ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 43 2025:HHC:27712 the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a .
legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi) 2023 SCC OnLine 784 had observed that the testimonies of police witnesses, as well as pointing out memos, do not stand vitiated due to the absence of independent witnesses.
26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on "any good reason"
which, quite apparently, is missing from the present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW-1 and PW-2, which the courts below have found absolutely to be inspiring in confidence. Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and confirmed by the High Court vide the impugned judgment, cannot be faulted with."
40. The learned Trial Court found the testimonies of the prosecution witnesses credible. It was laid down by the Hon'ble Supreme Court in Goverdhan (supra) that the Appellate 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: -
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 44 2025:HHC:27712 "83. The trial court, after recording the testimony of the PW-10, and on consideration of the same, found her evidence trustworthy and credible. We see no reason to question the assessment about the credibility of the witness .
by the Trial Court, which had the advantage of seeing and hearing the witness and all other witnesses. Nothing has been brought to our notice of any serious illegality or breach of fundamental law to warrant taking a different view of the evidence of PW-10.
In this regard, we may keep in mind the valuable observations 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 r not be forgotten that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as 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 unreasonable.
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 decisions 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 reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 45 2025:HHC:27712 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 instance, 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 how their evidence is given."
41. Since there is nothing in the cross-examination of the prosecution's witnesses to shake their credibility; therefore, the finding of the learned Trial Court regarding the credibility of the witnesses is to be accepted as correct.
42. It was submitted that the prosecution did not comply with the requirement of Section 42 of the NDPS Act. This is fatal to the prosecution's case. This submission is only stated to be rejected. There is nothing in the cross-examination of the prosecution witnesses to show that they had prior information.
The statements of the prosecution witnesses show that the vehicle was stopped for a routine traffic checking, and a polythene packet was found by chance. Therefore, it was a case of chance recovery.
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 46 2025:HHC:27712 The term chance recovery was explained by the Hon'ble Supreme Court in State of H.P. v. Sunil Kumar, (2014) 4 SCC 780: (2014) 2 SCC .
(Cri) 449: 2014 SCC OnLine SC 205, at page 784:
"13. The expression "chance recovery" has not been defined anywhere, and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State [(1998) 8 SCC 655: 1999 SCC (Cri) 79], this Court considered a chance recovery as one when a police officer "stumbles on" narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat [(2004) 13 SCC 608: (2006) 1 SCC (Cri) 508], the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a "chance recovery".
14. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.
15. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a "positive suspicion" that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected, notwithstanding the submission that drugs are easily available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs, and indeed, that is also not the case set up in this appeal. It was plainly a chance or accidental, or unexpected recovery of charas--Sunil Kumar could well have been carrying any other contraband, such as smuggled gold, stolen property or an illegal firearm or even some other drug.
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 47 2025:HHC:27712
43. It was laid down by this Court in State vs Vidya Devi 1993(2) Shimla Law Cases 6 that it is not necessary to comply with .
the provisions of Section 42 in a case of chance recovery. It was observed:
"17. After giving our careful consideration to the problem posed before us, we are of the considered opinion that in a chance recovery compliance of Sections 41, 42 and 50 of the Act may not be possible, however, in order to succeed on this plea, the prosecution will have to satisfy the conscious of the Court that in the facts and circumstances of the case, it could not comply with the requirements of these provisions and that by the non-compliance thereof, no prejudice or miscarriage of justice was caused to the accused. Then, the burden would shift over to the accused to prove prejudice caused to him. Thereafter, the investigation should be immediately handed over to the authorised officer, and if circumstances justify, the accused could be detained till the arrival of the competent officers. Thereafter, the investigation has to be carried in accordance with the provisions of the Act, and the accused punished in accordance with the provisions of the Act, if found guilty.
The provisions of the Act, like Sections 52, 52-A, 55, 57, 58, 61, 62, etc., are still applicable and have to be followed while conducting the investigation."
44. Similar is the judgment in Babubhai Odhavji Patel and others Versus State of Gujarat 2005(8) SCC 425, wherein it was observed:
"As regards violation of Section 42 of the NDPS Act, it was contended that PSI, L.U. Pandey had received previous information before going for the search, but he had not recorded this information anywhere, and he had also not informed his superior officers about the proposed seizure. In ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 48 2025:HHC:27712 the present case, the officer who conducted the search was examined as PW-2. What he stated in the evidence was that the D.I.G. had instructed him that intoxicant materials were being transported illegally from the States of Rajasthan and .
Uttar Pradesh, and the vehicles had been passing through Banaskantha district. This was only general information given by the D.I.G. to PW-2, and such information is not bound to be recorded as a source of information as contemplated under Section 42 of the NDPS Act. Section 42 of the NDPS Act provides that specific information alone needs to be recorded by the officer empowered to conduct a search. Here, PW-2 and the members of the patrol team were doing the usual patrol duty, and they incidentally came across the tanker lorry in question and, on search, recovered the contraband substance from the vehicle. We do not think that there is any violation of Section 42 of the NDPS Act.
5. The counsel for the appellant further contended that the search was conducted at 5.30 A.M., that is, before sunrise, and the PSI should have obtained a warrant or authorisation for conducting the search of the vehicle. This plea also is without any merit. The contraband substance, namely opium, was recovered from the tanker when the usual search of suspected vehicles carrying such contraband was being conducted by the police officials. The police party had no previous information that any contraband substance was being concealed in any building, conveyance or enclosed space, and they had to conduct a search pursuant to such information. Then, only they would require a warrant or authorisation as contemplated under Section 42 of the NDPS Act. If it is a chance recovery, the procedure contemplated under Section 42 cannot be complied with, and the evidence of PW-2 would clearly show that it was a chance recovery." (Emphasis supplied)
45. Similarly, it was held in Subhas Chandra Jana Versus Ajibar Mirdha 2011 Cri. L.J. 257 that Section 42 is applicable only when the police have specific information. When the police had ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 49 2025:HHC:27712 received secret information, which was not specific but vague or non-provable information, it was not required to be reduced to .
writing. It was observed:
"The compliance of Section 42(1) of the NDPS Act, 1985 is mandatory. From the facts of the present case, it is very clear that the NCB Officers raided the house of the accused, receiving prior information. But, as per the above- mentioned section, Officers receiving prior information should reduce the same in writing and also record the reasons for the belief. According to the Prosecution, they did not go on the basis of any information but only to work out an intelligence, whereas PW 2, during cross-examination, said that they raided on the basis of secret information. So, according to the defence, non-compliance of the mandatory provision of Section 42(1) vitiated the trial. In the case, Babulal v. State, 1995 Cri LJ 4105 Bombay High Court observed that no vague information is required to be reduced to writing. Thus, where the information received by the Police Officer was that some persons had arrived at a particular place with a large quantity of brown sugar and they were in search of customers, the information so received was not specific, which required the police to reduce it to writing.
This was not information as contemplated under Sections 41 and 42 of the NDPS Act, 1985.
This view was approved by the Apex Court in the case of State of Punjab v. Balbir Singh, 1994 Cal CLR (SC) 121 : (AIR 1994 SC 1872: 1994 Cri LJ 3702). Paragraph 22 of the said decision is quoted below:--
"We have also already noted that the searches under the NDPS Act by virtue of Section 51 have to be carried out under the provisions of Cr. P. C., particularly Sections 100 and 165. The irregularities, if any, committed, like independent witnesses not being associated or the witnesses not from the locality while carrying out the searches, etc., under sections 100 and ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 50 2025:HHC:27712 165, Cr. P. C. would not, as discussed above, vitiate the trial. But a question may still arise: when an empowered officer acting under Sections 41 and 42 of the Act carries out a search under Section 165, Cr. P. C., .
without recording the grounds of his belief as provided under Section 165, whether such failure also would vitiate the trial, particularly in view of the fact that such a search is connected with offences under the NDPS Act. Neither Section 41(2) nor Section 42( 1) mandates such empowered officers to record the grounds of their beliefs. It is the only proviso to Section 42 (1) read with Section 42(2), which makes it obligatory to record the grounds for his belief. To that extent, we have already held the provisions being mandatory. A fortiori, the empowered officer, though, is expected to record reasons of belief as required r under Section 165; failure to do so cannot vitiate the trial, particularly when Section 41 or 42 do not mandate to recording of reasons while searching. Section 165 in the context has to be read along with Sections 41(2) and 42(1), whereunder he is not required to record his reasons."
In the present case, the NCB officials raided the house of the accused not on any specific information but on vague, uncertain and probable information. The term "Secret" nowhere indicates that the information was reliable. So, on the basis of the above-mentioned judgment, there was no requirement to reduce it to writing as there was no formal or definite complaint as such.
Assuming that the NCB Officials had definite information about the Accused, then also the trial cannot be vitiated on this ground. The Apex Court in H. N. Rishbud v. State of Del. AIR 1955 SC 196: (1955 Cri LJ 526) held that a defect or illegality in the investigation, however serious, has no bearing on the competence of the procedure relating to cognisance or trial.
Drug trafficking is equally, if not more, dangerous, as it allures and has allured, a generation of young Indians from ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 51 2025:HHC:27712 Manipur to Gujarat, from Kashmir to Kanya Kumari who is crippled by these drugs and psychotropic substances, whose senses are atrophied, to whom illusion has become a reality, who are beating their marches slowly and painfully Farid Ali .
v. State, 1994 Cal Cr LR 189. In the present case, the accused himself voluntarily made a confessional statement stating that he dealt with Heroin for the livelihood of his family. So, after the voluntary admission by the Accused, there remains no scope to acquit the accused on the grounds of mere irregularity of procedural compliance by the prosecution in the interest of justice. It was held in the case In Re: Md. Farid Ali v. State (1994 Cal Cri LR 189) that the Recovery of Narcotics from an accused cannot impede the course of justice merely on the ground of procedural lapses when the contraband goods, on ultimate analysis, are found to be narcotics by the expert. It, therefore, excludes the plea of technicality, which cannot triumph over social legislation."
46. There is no evidence that police had any prior information, and it was rightly submitted on behalf of the prosecution that it was a case of chance recovery, and the prosecution case cannot be doubted for non-compliance of Section 42 of the NDPS Act.
47. 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 ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 52 2025:HHC:27712 not mandatory and non-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 contention raised on behalf of the appellants is that the rules framed for investigations under the NDPS Act are mandatory and have to be strictly followed. Neither the required sample was taken on the spot, nor the samples were preserved 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 effect 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 certain narcotic drugs or psychotropic substances having 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 following 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 an application, ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 53 2025:HHC:27712 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 inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect 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 r 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 circumstances 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."
48. 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 summarised as under:
(i) The provisions of the NDPS Act are required to be interpreted keeping in mind the scheme, object and ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 54 2025:HHC:27712 purpose of the Act, as also the impact on 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 Section 37 of the NDPS Act, which are mandatory in nature. 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 the 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 International Conventions on Narcotic Drugs and Psychotropic 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 released on bail nor would it 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 thereafter would, by itself, not make the entire evidence collected during the course of investigation inadmissible. 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 with Section 52A by itself would neither vitiate the trial nor would it entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 55 2025:HHC:27712 the investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."
49. This judgment was followed in Bharat Aambale v. State of .
Chhattisgarh, 2025 SCC OnLine SC 110, and it was held that non-
compliance with Section 52-A of the ND&PS Act does not vitiate the trial. It was observed:
"50. We summarise our conclusion as under:--
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, 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 Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples 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) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 56 2025:HHC:27712 irrespective of whether the substance in the original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(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 required is substantial compliance with the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies 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 adduced 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 confidence 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 draw 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 circumstances of each case.
(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 prosecution in ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 57 2025:HHC:27712 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 accused 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 accused, and the standard of proof required would be beyond a reasonable doubt.
50. The matter is squarely covered by the judgment of Sandeep Kuamr (supra), which has held that Section 52A of the NDPS Act does not apply when the whole bulk is sent for analysis.
Thus, the submission that the prosecution case is to be discarded due to non-compliance with Section 52-A of the NDPS Act is not acceptable, and the judgments in Mohammed Khalid (supra), Yusuf @ Asif (supra), Sansar Chand (supra) and Samir Ghosh (supra) do not apply to the present case.
::: Downloaded on - 18/08/2025 21:27:14 :::CISP a g e | 58 2025:HHC:27712
51. Report of analysis (Ext.PW-10/G) shows that the parcels were found to be sealed with four seals of seal 'A' and three seals of .
seal 'T'. The seals were found intact and tallied with specimen seals sent by the forwarding authority and seal impressions impressed on the form NCB-1, which shows the integrity of the case property.
It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, 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 sent separately 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."
52. 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."::: Downloaded on - 18/08/2025 21:27:14 :::CIS
P a g e | 59 2025:HHC:27712
53. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402, the High Court had concluded that there could have been .
tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon'ble Supreme Court that the 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 on 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 ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 60 2025:HHC:27712 evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution case. In our considered opinion, the ratio .
of the aforesaid decision squarely applies to the facts of the present case in this regard.
18. The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with."
54. 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, the 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 ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 61 2025:HHC:27712 the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from .
the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete." (Emphasis supplied)
55. Therefore, the prosecution version is to be accepted as correct that the case property remained intact till its analysis at SFSL, Junga.
56. The substance was found to be charas after the analysis.
Hence, it was duly proved on record that the accused was found in possession of charas.
57. It was submitted that the quantity of resin was found to be 25.56% and 12.58% w/w, and the same should have been considered while imposing the sentence. This submission is not acceptable. This Court held in State of H.P. vs. Mahboon Khan 2014 Crl. L.J. 705, that the entire quantity has to be considered while determining the possession of charas by the accused. Thus, the quantity could not have been determined on the basis of resin content.
58. It was submitted that the report of the analysis is not admissible without examination by a Forensic Expert. This ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 62 2025:HHC:27712 submission is only stated to be rejected. Section 293 of Cr.P.C.
provides that any document purporting to be a report of a Chemical .
Examiner or an Assistant Chemical Examiner may be used in any inquiry, trial or other proceedings under the Code, and the Court may, if it thinks fit, examine any such expert regarding the subject matter of the report.
59. In the present case, the report was issued by the Assistant Chemical Examiner and is a per se admissible; therefore, no requirement to examine him without any request made by the accused. The judgment of the Hon'ble Supreme Court in Keshav Dutt (Supra) does not apply to the present case, because the report was issued by a Handwriting Expert whose examination is necessary to prove the report.
60. Therefore, it was duly proved on record that the accused was found in possession of 670 grams of charas, and he was rightly convicted by the learned Trial Court.
61. It was submitted that the sentence imposed by the learned Trial Court is excessive. This submission is not acceptable.
The Central Government has notified 1 Kg as the commercial quantity in case of charas, which means that the person possessing ::: Downloaded on - 18/08/2025 21:27:14 :::CIS P a g e | 63 2025:HHC:27712 1 kg can be punished for imprisonment up to ten years and applying the principle of proportionality, a person possessing 670 .
grams would be liable to be sentenced for six years and seven months. The sentence of three years is disproportionate and inadequate; however, in the absence of an appeal by the State, no interference is required with the sentence.
62. No other point was urged.
63. Thus, there is no infirmity in the judgment and order passed by the learned Trial Court and no interference is required with it.
64. Consequently, the present appeal fails and the same is dismissed.
65. Record of the learned Trial Court be sent back forthwith, along with a copy of this judgment.
(Rakesh Kainthla) Judge 18th August, 2025 (ravinder) ::: Downloaded on - 18/08/2025 21:27:14 :::CIS