Reserved On: 25.02.2025 vs Jai Kishan on 1 March, 2025

[Cites 32, Cited by 0]

Himachal Pradesh High Court

Reserved On: 25.02.2025 vs Jai Kishan on 1 March, 2025

2025:HHC:4380 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 126 of 2015 Reserved on: 25.02.2025 Date of Decision: 1.03.2025 State of Himachal Pradesh ....Appellant Versus Jai Kishan ....Respondent Coram Hon'ble Mr Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant/State : Mr. I.N.Mehta, Senior Additional Advocate General with Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Keprate, Additional Advocates General and Mr. J.S. Guleria, Deputy Advocate General.

For the Respondent : Mr. Naveen K. Bhardwaj, Advocate.

Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 10.10.2024 passed by learned Special Judge-II (Additional Sessions Judge), Kullu, Himachal Pradesh (learned Trial Court) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2

2025:HHC:4380 vide which respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'). (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 chargesheet before the learned Trial Court for the commission of an offence punishable under Section 21 of the NDPS Act. It was asserted that S.I. Megh Singh (PW-7), Head Constable Jamal Deen (not examined), Constable Nitish Kumar (PW-2) and Constable Nitin Thakur (PW-1) were on patrolling duty at village Chhalal on 12.05.2012. They saw the accused going towards Chhalal from Kasol. The accused returned after seeing the police party and concealed himself behind a stone. The police became suspicious of the conduct of the accused and apprehended him. The accused revealed his name as Jai Kishan Sharma on enquiry. SI Megh Singh (PW-7) informed the accused that he (SI Megh Singh) suspected the possession of narcotics by the accused. SI Megh Singh (PW-7) wanted to search the accused, and the accused 3 2025:HHC:4380 told him that he had a legal right to be searched before a Magistrate or the Gazetted Officer. The accused consented to be searched by the police vide memo (Ext.PW-2/A). The police party gave their personal search to the accused and conducted the personal search of the accused. The police recovered polythene packets (Ext.P-2 to Ext.P-9) containing white powder (Ext.P-1). The powder was collected and weighed, and its weight was found to be 9.29 grams. The accused revealed that the powder was MDMA. The police put the powder in polythene. The polythene was put in a paper (Ext.P-10) and the same was put in a parcel (Ext.P-11). The police sealed the parcel with four seal impressions of seal 'D'. The seal impression (Ext.PW-2/B) was taken on a separate piece of cloth. NCB-I form (Ext.PW-7/A) was filled in triplicate, and a seal impression was obtained on the NCB-I form. The seal was handed over to Constable Nitish Kumar (PW-2) after its use. The police seized the parcel vide seizure memo (Ext.PW-2/C). SI Megh Singh (PW-7) prepared a rukka (Ext.PW1/A) and handed it over to Constable Nitin Thakur (PW-1) with the directions to carry it to the Police Station. 4

2025:HHC:4380

3. Constable Nitin Thakur (PW-1) handed over the rukka to Inspector Sher Singh (PW-9), who got the F.I.R. (Ext.PW-9/A) registered in the Police Station. He handed over the case file to Constable Nitin Thakur (PW-1) with directions to hand it over to the Investigating Officer. S.I.Megh Singh (PW-7) conducted the investigations. He prepared the spot map (Ext.PW-7/B) and recorded the statements of witnesses as per their version. He arrested the accused vide memo (Ext.PW-2/D). He also prepared the memo (Ex.PW-2/E). of the personal search of the accused He produced the accused, the case file and the case property before Inspector/SHO Sher Singh (PW-9). Inspector/SHO Sher Singh resealed the parcel with four seal impressions of seal 'E'. He obtained the seal impression (Ext. PW-9/C) on a separate piece of cloth and NCB-I form (Ext.PW-7/A). He filled out the relevant columns of the NCB-I form and handed over the case property, documents and sample seal to MHC Jai Singh (PW-8), who made an entry in Malkhana Register No. 19 (Ext. PW-8/A) and deposited the case property, sample seals and the documents in the Malkhana. He handed over the case property, documents and sample seals to Constable Sangat Ram (PW-5) with the 5 2025:HHC:4380 directions to carry them to SFSL, Junga, vide RC No. 98 of 2012 (Ext.PW8/B). Constable Sangat Ram deposited all the articles at SFSL, Junga and handed over the receipt to MHC Jai Singh(PW-

8) on his return.

4. SI Megh Singh (PW-7) prepared the Special Report (Ext.PW4/A) and handed it over to Additional Superintendent of Police, Shri Sandeep Dhawal, who made an endorsement on the Special Report and handed it over to his Reader Head Constable Balbir Sharma (PW-4),. He made an entry in the Register of Special Report at Sl. No. 16 (Ext.PW-4/B) and retained the Special Report on record. The result of the analysis (Ex.PW-7/C) was issued in which it was shown that the sample was MDMA. The statements of the remaining witnesses were recorded as per their version, and after the completion of the investigation, a challan was prepared and presented before the Court.

5. The learned Trial Court charged the accused with the commission of an offence punishable under Section 21 of the NDPS Act, to which the accused pleaded not guilty and claimed to be tried.

2025:HHC:4380

6. The prosecution examined nine witnesses to prove its case. Constable Nitin Thakur (PW-1) and Constable Nitish Kumar (PW-2) are the official witnesses to recovery, HC Padam Singh (PW-3) proved the entry in the daily diary. Head Constable HC Balbir Sharma (PW-4) was working as a Reader to the Additional Superintendent of Police, Shri Sandeep Dhawal, to whom the Special Report was handed over. Constable Sangat Ram (PW-5) carried the case property to SFSL, Junga. Ashok Sharma (PW-6) conducted the partial investigation of the case. SI Megh Singh (PW-7) led the police party, effected the search and conducted the investigation of the case. HC Jai Singh (PW-8) was working as an MHC with whom the case property was deposited. Inspector Sher Singh (PW-9) was working as SHO, who resealed the parcel and signed the F.I.R.

7. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution case in its entirety. He stated that a false case was made against him. The police found one unclaimed bag and inquired him about the bag. When he replied that he had no connection with the same, the police 7 2025:HHC:4380 implicated him. No defence was sought to be adduced by the accused.

8. The learned Trial Court held that there were contradictions in the statements of the official witnesses, which made the prosecution case highly suspect. The integrity of the case property was not proved, and there was a discrepancy in the number of seals mentioned by the witnesses. There was no compliance with Section 50 of the NDPS Act, which was fatal to the prosecution case. Hence, the learned Trial Court acquitted the accused.

9. Feeling aggrieved and dissatisfied with the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. Learned Trial Court failed to view the prosecution evidence in its proper perspective and set unrealistic standards to evaluate direct and cogent evidence. The reasoning of the learned Trial Court is manifestly unreasonable. There was no evidence of any enmity between the police officials and the accused,and the testimonies of the prosecution witnesses were discarded without any reason. 8

2025:HHC:4380 Learned Trial Court erred in holding that there was no compliance with Section 50 of the NDPS Act. Minor contradictions are bound to come with time.The learned Trial Court erred in acquitting the accused based on minor contradictions. Hence, it was prayed that the present appeal be accepted and the judgment of the learned Trial Court be set aside.

10. We have heard Mr I.N.Mehta, learned Senior Additional Advocate General, with Mr Navlesh Verma, Ms Sharmila Patial, Mr Sushant Keprate, Additional Advocate General and with Mr J.S. Guleria, Deputy Advocate General for the appellant/State and Mr Naveen K. Bhadwaj, Advocate, for the respondent.

11. Mr.I.N. Mehta, learned Senior Additional Advocate General, submitted that the learned Trial Court erred in acquitting the accused. The recovery was effected on 12.5.2012, whereas statements of witnesses were recorded in the year 2014 after the lapse of two years. Minor contradictions are bound to come with time, and the Trial Court erred in acquitting the accused based on the minor contradictions. The accused had 9 2025:HHC:4380 consented to be searched by the police, and there was no requirement to take the accused to the nearest Magistrate or the Gazetted Officer. Learned Trial Court had taken a perverse view while acquitting the accused. Therefore, he prayed that the present appeal be allowed and the judgment of the learned Trial Court be set aside.

12. Mr. Naveen K. Bhardwaj, learned counsel for the respondent/accused, supported the judgment of the learned Trial Court and submitted that no interference is required with it. Learned Trial Court had taken a reasonable view based on the evidence led before it, and this Court should not interfere with the reasonable view of the learned Trial Court while deciding the appeal against acquittal; therefore, he prayed that the present appeal be dismissed.

13. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

14. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC 10 2025:HHC:4380 OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:

"25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened, and a higher threshold is expected to rebut the same in appeal.

26. No doubt, an order of acquittal is open to appeal, and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence.

2025:HHC:4380 The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts, and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13) "13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The 12 2025:HHC:4380 duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p. 643, para 9) '9. ... We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeals against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view, and even if by any stretch of the imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.'"

29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7) "7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :

(2021) 1 SCC (Cri) 395] ).

2025:HHC:4380 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])."

15. This position was reiterated in Ramesh v. State of Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it was observed at page 175:

"20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], regarding the power of the appellate court while dealing with an appeal against a judgment of acquittal. The principles read thus: (SCC p. 432, para 42) "42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.

(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such 14 2025:HHC:4380 phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three-judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses, and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice." 15

2025:HHC:4380

16. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

17. It is an admitted case of the prosecution that police conducted the search of the jacket worn by the accused and recovered 9.29 grams MDMA during the search. Constable Nitin Thakur (PW-1), Constable Nitish Kumar (PW-2) and SI Megh Singh (PW-7) categorically stated that the personal search of the accused was conducted and during the search one polythene packet was recovered from the jacket worn by the accused, which contained small transparent wrappers having white powder. It was laid down by the Hon'ble Supreme Court in State of H.P Versus Pawan Kumar (2005) 4 SCC 350 that the word person includes the body of a human being as presented to public view, usually with its appropriate coverings and clothing. It was observed: -

"10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or bodies of individuals, as factually, in these types of cases, a search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section, it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad, common-sense manner and, therefore, not the 16 2025:HHC:4380 naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view, usually with its appropriate coverings and clothing". In a civilised society, appropriate coverings and clothing are considered absolutely essential, and no sane human being comes into the gaze of others without appropriate coverings and clothing. The appropriate coverings will include footwear also, as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothing or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief, do not cover their body with clothing, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothing and also footwear.

18. Therefore, clothes are included in the definition of a person as per the judgment of the Hon'ble Supreme Court.

19. In the present case, the substance was recovered from the jacket worn by the accused. Thus, the recovery was effected from the person of the accused. Section 50 of the ND&PS Act deals with the search of the person. It reads as under: -

"50. Conditions under which search of persons shall be 17 2025:HHC:4380 conducted.

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone except a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

20. Thus, the police were required to comply with Section 50 of the NDPS Act and to inform him of his right to be searched before the Magistrate or Gazetted Officer. 18

2025:HHC:4380

21. Constable Nitish Kumar (PW-2) stated that the investigating officer obtained the consent of the accused to be searched before the Gazetted Officer or the Police party, and the accused consented to be searched by the Police party. A consent Memo (Ext.PW2/A) was prepared. SI Megh Singh (PW-7) stated that he told the accused that he (the accused) had a legal right to get himself searched before the Magistrate or the Gazetted Officer, however, the accused opted to be searched by the police party by giving his consent vide memo (Ext.PW-2/A). Thus, SI Megh Singh (PW-7) and Constable Nitin Thakur (PW-1) gave different versions regarding the persons before whom the accused could have been searched. Constable Nitish Kumar (PW-2) stated that the accused was told that he could be searched before a Gazetted Officer or the Police. SI Megh Singh (PW-7) stated that the accused was given the option to be searched before the Magistrate or the Gazetted Officer. The version of Constable Nitin Thakur (PW-1) that an option to be searched by the police was given to the accused appears to be highly probable because only then the accused would have consented to be searched by the police. If no option to be searched by the police was given to the accused he could not 19 2025:HHC:4380 have opted to be searched by the police. He could have declined to be searched by the Magistrate or the Gazetted Officer but without being informed that he could be searched before the Police, he could not have mentioned specifically that he wanted to be searched before the police. It was laid down by the Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand & another (2014) 5 SCC 345, that Section 50 only provides an option to be searched before a Magistrate or a Gazetted Officer, and it does not provide for a third option to be searched before the police. It was observed:

"19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate, before the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question of whether, if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search 20 2025:HHC:4380 would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such an option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."

22. The law regarding the third option given to the accused was exhaustively considered by this Court in Pradeep Singh alias Rocky vs State of Himachal Pradesh, 2020(1) Him. L.R. 133, and it was held that giving the third option to the accused is fatal. It was observed:

"3(iii)(c). Under the provisions of Section 50 of the Act, the accused has to be informed about his legal rights regarding search before a Magistrate or Gazetted Officer. 3(iii)(d). In the instant case, the consent memo (Ext.PW- 1/A), obtained from the accused, shows that in addition to the two statutory options of search before the Magistrate or the Gazetted Officer", a 3rd option was also given to the accused for getting himself searched before any other police officer. It is in such circumstance that the accused gave his search to the police party. Giving 3rd option to the accused was clearly contrary to the mandatory provisions of Section 50 of the Act. In the case titled State of Rajasthan versus Parmanand and Another, (2014) 5 SCC 345, it has been held by the Hon'ble Apex Court that such a 3rd option could not be given when there was no provision under Section 50(1) of the Act. Relevant para of the said judgment is reproduced as under: -

"19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or, before 21 2025:HHC:4380 the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether, if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such an option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."

Relying upon the above judgment, in titled SK. Raju alias Abdul Haque alias Jagga versus State of West Bengal, (2018) 9 SCC 708 Hon'ble Apex Court further observed thus: -

"18. In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two-judge Bench of this Court considered whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the 22 2025:HHC:4380 requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two-judge Bench of this Court in Dilip v State of M.P.] It was held thus:

(Parmanand, SCC p.351, para 15).

"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have an application.

19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate, before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being searched before the Superintendent, who was not an independent officer."

Effect of giving the 3rd option:

3(iii)(e). The effect of illegality committed during the course of the search of the accused has been considered by the Hon'ble Apex Court in titled State of H.P. versus Pawan Kumar, (2005) 4 SCC 350 wherein, after considering various judgements on the question, it was observed thus:-

"26. The Constitution Bench decision in Pooran Mal v. The Director of Inspection, (1974) 1 SCC 345 was considered in State of Punjab v. Baldev Singh and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the 23 2025:HHC:4380 judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between the recovery of illicit drugs, etc., seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken, and it was held that failure to inform the person concerned of his right as emanating from sub- Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person"

occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him."

In a case titled State of H.P. versus Rakesh 2018 LHLJ 214 (HP), this Court observed as under: -

"18. ....................................................................... Now, in view of the above, this Court has to examine whether the provisions of Section 50 of the NDPS Act are applicable to the present case and, if applicable, then whether those have been breached or not. Admittedly, as per the version of PW-3, HC Chaman Lal, he has conducted the personal search of both the accused persons and also prepared search memos, Ex. PW-3/P and Ex. PW-3/Q. If only the bag of the accused persons would have been searched, then Section 50 of the NDPS Act has no application, but as the personal search of the accused persons was also conducted, certainly Section 50 of the NDPS Act is applicable.

2025:HHC:4380 In fact, Section 50 of the NDPS Act has a purpose and communication of the said right, which is ingrained in Section 50, to the person who is about to be searched is not an empty formality. Offences under the NDPS Act carry severe punishment, so the mandatory procedure, as laid down under the Act, has to be followed meticulously. Section 50 of the Act is just a safeguard available to an accused against the possibility of false involvement. Thus, communication of this right to the accused has to be clear, unambiguous and to the individual concerned. The purpose of this Section is to make aware the accused of his right, and the whole purpose behind creating this right is effaced if the accused is not able to exercise the same for want of knowledge about its existence. This right cannot be ignored, as the same is of utmost importance to the accused. In the present case, certainly, the provisions of Section 50 of the NDPS Act have not been complied with; therefore, the judgment (supra) is fully applicable to the facts of the present case.

19. In State of Himachal Pradesh vs. Desh Raj & another,2016 Supp HimLR 3088 (DB), this Court has relied upon the law laid down in Parmanand's case (supra).

Relevant paras of the judgment of this Court are extracted hereunder:

"18. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345, have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for the third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. ......"

2025:HHC:4380 Again, in the present set of facts and circumstances, the judgment (supra) is fully applicable to the present case, as the right provided under Section 50 of the NDPS Act in no way can be diluted, and its compliance is mandatory in nature."

Therefore, the combined effect of the law laid down by the Hon'ble Apex Court, as applied to the facts of the case in hand, is that non-compliance to the mandatory provisions of Section 50 of the Act has vitiated the proceedings related to search and recovery. Point is, therefore, answered in favour of appellant."

23. This position was reiterated in Dayalu Kashyap v. State of Chhattisgarh, (2022) 12 SCC 398: 2022 SCC OnLine SC 334, wherein it was observed at page 400:

"4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345: (2014) 2 SCC (Cri) 563], more specifically, SCC para 19. The judgment, in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been 26 2025:HHC:4380 recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant, and thus, the recovery from him is vitiated."

24. A similar view was taken in Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262:AIR 2023 SC 5164 wherein it was observed:

"27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told whether he would like to be searched before a police officer or a Gazetted Officer or Magistrate?

28. This Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345, held that it is improper for a police officer to tell the accused that a third alternative is also available, i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section

50.....

29. Thus, from the oral evidence on the record as discussed above, it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police officer."

25. It was further held in Ranjan Kumar Chadha (supra) that the investigating officer should give an option to the accused to be searched before the Magistrate or the Gazetted 27 2025:HHC:4380 Officer; the accused can decline to avail of such option, and the investigating officer can carry out the search himself. It was observed:

"62. Section 50 of the NDPS Act only goes so far as to prescribe an obligation to the police officer to inform the suspect of his right to have his search conducted either in the presence of a Gazetted Officer or Magistrate. Whether or not the search should be conducted in the presence of a Gazetted Officer or Magistrate ultimately depends on the exercise of such right as provided under Section 50. In the event the suspect declines this right, there is no further obligation to have his search conducted in the presence of a Gazetted Officer or Magistrate, and in such a situation, the empowered police officer can proceed to conduct the search of the person himself. To read Section 50 otherwise would render the very purpose of informing the suspect of his right a redundant exercise. We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate.

63. A plain reading of the extracted paragraphs of Arif Khan (supra) referred to above would indicate that this Court while following the ratio of the decision of the Constitution Bench in VijaysinhChandubha Jadeja (supra) held that the same has settled the position of law in this behalf to the effect that, whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires strict compliance; this Court simultaneously proceeded to reiterate that in 28 2025:HHC:4380 VijaysinhChandubha Jadeja (supra) "it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act".

64. There is no requirement to conduct the search of the person suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate if the person proposed to be searched after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act, would be rendered otiose if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate despite having expressly waived "such requisition", as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer for the conduct of the proposed search before a Gazetted Officer or Magistrate only "if he so requires"

upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act.

65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and 29 2025:HHC:4380 he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and creditworthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.

66. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:--

(i) Section 50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect.

(ii) Where the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.

2025:HHC:4380

(iii) Before conducting a search, it must be communicated in clear terms, though it need not be in writing and is permissible to convey orally that the suspect has a right of being searched by a Gazetted Officer or Magistrate.

(iv) While informing the right, only two options of either being searched in the presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.

(v) In case of multiple persons to be searched, each of them has to be individually communicated of their rights, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50.

(vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate, but an endeavour should be made to take him before the nearest Magistrate.

(vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act and would have no application where a search was conducted under any other statute in respect of any offence.

(viii) Where during a search under any statute other than the NDPS Act, contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although, in such a situation, Section 50 may not be required to be complied for the reason that search had already been conducted.

(ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. 31

2025:HHC:4380

(x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50, would be inadmissible and cannot be relied upon in the trial by the prosecution; however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.

26. In the present case, the statement of Nitish Thakur (PW-1) makes it highly probable that accused was given a third option to be searched before the police, and this vitiates the compliance with the provisions of Section 50 of the NDPS Act. It was laid down by the Hon'ble Supreme Court in VijaysinhChandubha Jadeja vs State of Gujarat (2011) 1 SCC 609 that violation of Section 50 of the NDPS Act is fatal, and the police cannot rely upon the recovery effected in violation of Section 50 of NDPS Act. It was observed: -

"29. ...... We have no hesitation to hold that in so far as the obligation of the authorised officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit articles suspect and vitiate the conviction if the same is recorded only on the basis of recovery of an illicit article from the person of the accused during such search."

27. This position was reiterated in Arif Khan @ Agha Khan versus State of Uttarakhand AIR 2018 SC 2123, wherein it was 32 2025:HHC:4380 observed: -

"28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer. Third, it is also an admitted fact that none of the police officials of the raiding party who recovered the contraband "Charas" from him was the Gazetted Officer, nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.

29. Though the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party, none of them deposed that the search/recovery was made in the presence of any Magistrate or a Gazetted Officer.

30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove 33 2025:HHC:4380 compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal."

28. Thus, it appears from the record that the accused was also told that he could be searched before the police, and only then he opted to be searched by the police, which is insufficient compliance with Section 50 of the NDPS Act and the prosecution cannot rely upon the recovery effected as a result of a search conducted in violation of Section 50 of NDPS Act.

29. Rukka(Ext.PW-1/A) mentions that one transparent polythene was recovered from the right pocket of the jacket worn by the accused. The transparent polythene contained small packets of polythene having white powder. Constable Nitin Thakur (PW-1) stated that one polythene packet was recovered from the right pocket of the jacket worn by the accused, which contained two small transparent wrappers.Constable Nitish Kumar (PW-2) stated that one transparent polythene containing 7-8 transparent plastic wrappers having white powder was recovered from the jacket. SI Megh Singh (PW-7) stated that one polythene bag having eight transparent wrappers containing a white substance was found. The prosecution produced plastic wrappers (Ext.P-2 to 34 2025:HHC:4380 Ext.P-9) before the Court. Thus, there is a discrepancy regarding the number of polythene packets recovered from the accused in the oral testimonies of the witnesses. The packets produced before the Court are also not as per the statements of the prosecution witnesses.

30. Constable Nitin Thakur (PW-1) stated in his cross- examination that nothing except MDMA was recovered from the pockets of the person of the accused; however, Memo of personal search (Ext.PW-2/C) shows that currency notes worth ₹2500/-, one mobile Nokia and other articles were found in the possession of the accused. This shows that either Nitin Thakur (PW-1) was not present at the time of the search or his memory regarding the search is not reliable; any of these possibilities is fatal to the prosecution case.

31. Rukka(Ext.PW-1/A) mentions that the seal was handed over to Constable Nitish Kumar (PW-2) after the use. Constable Nitin Thakur (PW-1) and Constable Nitish Kumar (PW-2) also stated on oath that the seal was handed over to Constable Nitish Kumar (PW-2); however, SI Megh Singh (PW-7) stated that the seal was handed over to Head Constable 35 2025:HHC:4380 Jamal Deen after the use. He volunteered to say that he did not remember the name of the constable. Thus, there is a discrepancy regarding the person to whom the seal was handed over. This discrepancy assumes significance because constable Sangat Ram (PW-5) stated that the parcel sealed with four seal impressions of seal 'D' and four seal impressions of seal 'E' was handed over to him, whereas HC Jai Singh (PW-8) stated that parcel sealed with four seal impressions of seal 'D' and three seal impressions of seal 'E' was deposited with him. He had also mentioned this fact in the Malkhana Register (Ext.PW-8/A). The report of chemical examination (Ext.PW- 7/C) mentions that a parcel sealed with four seal impressions of seal 'D' and four seal impressions of seal 'E' was examined in the laboratory. This shows that seals were put on the case property after it was handed over to HC Jai Singh (PW-8), which suggests tampering with the case property and justifies the inference drawn by the learned Trial Court that the integrity of the case property was not established.

32. It was submitted that these are minor discrepancies, which are bound to come with time. This is not acceptable. The discrepancy regarding the number of seals is not based on the 36 2025:HHC:4380 ocular version but is supported by the documents as well. The details of the articles recovered during the personal search of the accused cannot be said to be a minor discrepancy as it is related to the core of the prosecution case, namely, the recovery. It was laid down by the Hon'ble Supreme Court in Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC OnLine SC 756 that the evidence of the prosecution must be tested for its inherent consistency: consistency with the account of other witnesses and consistency with undisputed facts. It was observed:

"21. .... Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful, independent assessment and evaluation for its credibility, which should not be adversely prejudged, making any other evidence, including the medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

2025:HHC:4380

33. It was held in David Piper vs Mark Hales 2013 EWHC B1 (QB) that the Court has to see whether the statement of the witness is consistent or not. It was observed: -

34. The guidance about how courts approach this is given in the extra-judicial writing of the late Lord Bingham of Cornhill, approved by the courts is apposite. In "The Judge as Juror: The Judicial Determination of Factual Issues", published in "The Business of Judging", Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985 p 1-27, he wrote:

". . . Faced with a conflict of evidence on an issue substantially affecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties' lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable?

The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, 38 2025:HHC:4380 that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree.

The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403at p 431. In this, he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full:

''Credibility' involves wider problems than mere 'demeanour', which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by too much discussion of it with others? Witnesses, especially those who are emotional and who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes, the memory becomes fainter, and the imagination becomes more active. For 39 2025:HHC:4380 that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue . . .. more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness's evidence;

2025:HHC:4380 (3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness.

The first three of these tests may, in general, be regarded as giving a useful pointer to where the truth lies. If a witness's evidence conflicts with what is clearly shown to have occurred or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable and not dishonest, but the nature of the case may effectively rule out that possibility. The fourth test is perhaps more arguable. . . ."

35. The following guidance of Lord Goff in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at 215-6 is also helpful.

"And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable, and it is of crucial importance for the Judge to have regard to the contemporary documents and the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1, when he said at p. 57: -

"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by 41 2025:HHC:4380 reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not, and where there is a conflict of evidence, such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth." [emphases added].

That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable, and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence."

In that context, he was impressed by a witness described in the following terms.

"Although, like the other main witnesses, his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable."

That is so important and so infrequently done."

36. This approach to fact-finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 610, in paragraphs 11, 12 & 14:

11. By the end of the judgment, it is clear that what impressed the judge most in his task of fact-

finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

12. There are many situations in which the court is asked to assess the credibility of witnesses from 42 2025:HHC:4380 their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge, and he or she has to decide whose evidence and how much evidence to accept. This task is not to be carried out merely by reference to the impression that a witness made by giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary, but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.

14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present, and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence, 43 2025:HHC:4380 and the judge may be able to draw inferences from its absence.

37. Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour, which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties' lawyers long after the events also distort the accurate picture even though they are meant to assist the court."

34. In the present case, the discrepancies related to the recovery and integrity of the case property. These cannot be ignored on the ground that discrepancies were bound to come with the passage of time.

35. No other point was urged.

36. Therefore, the learned Trial Court had taken a reasonable view based on the evidence led before it. This Court will not interfere with the same while deciding the appeal against the acquittal, even of another view is possible.

37. In view of the above, the present appeal fails, and the same is dismissed.

2025:HHC:4380

38. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is directed to furnish his personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.

39. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.

( Tarlok Singh Chauhan ) Judge ( Rakesh Kainthla ) Judge 1st March, 2025 (ravinder)

Unlock Advanced Research with PRISMAI

Himachal Pradesh High Court