Himachal Pradesh High Court
State Of Himachal Pradesh vs To on 26 August, 2025
1 ( 2025:HHC:28724 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 492 of 2024 .
Reserved on: 11.08.2025
Decided on: 26.08.2025
Sunder Singh ....... A1ppellant
State of Himachal Pradesh
r Versus
to ......Respondent.
Coram
The Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No For the Appellant: Mr. Vaibhav Kanwar, 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 30.07.2024 passed by learned Special Judge-II, Solan, District Solan (learned Trial 1 Whether the reporters of the local papers may be allowed to see the Judgment?yes ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 2 ( 2025:HHC:28724 ) Court) vide which the appellant/accused before the learned Trial Court was convicted and sentenced as under: -
.
Sr. Offence Substantive Fine In default of
No. for which sentence imposed payment of
punished imposed fine, Simple
Imprisonment
imposed
1. Section Rigorous ₹25,000/- Simple
20 of the imprisonment imprisonment
N.D& P.S for a period of for a period of
Act 5 years 6 months
2.
Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (N.D & P.S). It was asserted that Inspector Ravinder Kumar (PW8), HHC Balbir Singh (PW1), and Constable Naveen Kumar (PW2) had gone towards Oachhghat-
Nauni, etc. on 04.12.2018. An entry No. 72 (Ex. P1/PW9) was recorded regarding their departure. They had set up a 'naka' near Kothi village at Solan-Oachhghat road. The accused came towards the police party at 10:40 P.M. He returned after seeing the police. The police apprehended the accused. The police suspected that the accused might be in possession of some stolen property. The police signalled the drivers of the vehicles ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 3 ( 2025:HHC:28724 ) to stop and requested them to become witnesses. However, none agreed. No independent witnesses could be associated with the vicinity because it was night. The police inquired about .
the name of the accused, and he revealed his name as Sunder Singh. He had a carry bag (Ex. MO2) bearing the words "Shubham footwear". The police checked the carry bag and found a transparent polythene bag (Ex. MO3) containing black sticks. The police checked the sticks and found them to be 'charas' (Ex. MO4). The police requisitioned the weighing machine and weighed the 'charas'. The weight of charas was found to be 345 grams. 'Charas' was put in the polythene bag, and the polythene bag was put in the carry bag in the same manner in which they were recovered. The carry bag was put in a cloth parcel, and the parcel was sealed with five impressions of seal 'C'. Seal impression (Ex. P1/PW1) was taken on a separate piece of cloth. NCB-I form (Ex. P3/PW6) was filled in triplicate. The seal impression was put on the form, and the seal was handed over to Balbir Singh after its use. Parcel, sample seal and NCB-I form were seized vide memo (Ex.P2/PW1). Rukka (Ex. P1/PW8) was prepared and sent to the police station, where F.I.R. (Ex. P2/PW8) was registered. HC Kuldeep Kumar (PW9) conducted the investigation. He visited ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 4 ( 2025:HHC:28724 ) the spot. SI Ravinder handed over the documents and custody of the accused to Kuldeep Kumar. He prepared the spot map (Ex.P3/PW8) and recorded the statements of the witnesses as .
per their version. Ravinder Kumar deposited the sealed parcel, sample seal and NCB-I form with Kanshi Ram (PW6), who made an entry at Sr. No.1171/2018 (Ex.P1/PW6) and deposited it in the malkhana. Kuldeep Kumar obtained the case property from Kanshi Ram and produced it before the learned Judicial Magistrate First Class, Solan, for certification of the inventory (Ex. P4/PW8). The Court certified the inventory, issued the certificate (Ex. P6/PW8), and passed an order (Ex.P7/PW8). The parcel was sealed with the Court seal. The sample seal (Ex.P8/PW8) was taken on a separate piece of cloth. Kuldeep Kumar deposited the parcel, sample seal, NCB-I form, Court seal, etc., with Kanshi Ram (PW6), who deposited it in the malkhana. He sent the case property with sample seals, NCB-I form and documents to the State Forensic Science Laboratory (SFSL), Junga, through HHC Manjit Singh (PW4) vide R.C.No.283/18-19 (Ex.P2/PW6). Manjit Singh deposited all the articles at SFSL, Junga and handed over the receipt to the MHC on his return. Kuldeep Kumar prepared the special report (Ex.P1/PW5) and handed it over to Additional Superintendent of ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 5 ( 2025:HHC:28724 ) Police, Shiv Kumar. Addl. Superintendent of Police, Shiv Kumar made an endorsement on the special report and handed it over to his Reader, ASI Rakesh Kumar (PW5), who made an entry in .
the register (Ex. P2/PW5) and retained the special report on record. The result of the analysis (Ex.P9/PW8) was issued, in which it was shown that the exhibit stated to be an extract of cannabis was a sample of 'charas'. The statements of witnesses were recorded as per their version. After the completion of the investigation, a challan was prepared and presented before the learned Trial Court.
3. Learned Trial Court charged the accused for the commission of an offence punishable under Section 20 of N.D & P.S Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined nine witnesses to prove its case. Balbir Singh (PW1) and Constable Naveen Kumar (PW2) are the official witnesses to the recovery. HHC Madan Kishore (PW3) carried the weighing machine from the police station to the spot. HHC Manjit Singh (PW4) carried the case property to SFSL, Junga. ASI Rakesh Kumar (PW5) was posted as a Reader to Addl. Superintendent of Police, Solan, to whom the special report was handed over. Kanshi Ram (PW6) was the malkhana ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 6 ( 2025:HHC:28724 ) in charge to whom the case property was handed over.
Constable Kuldeep (PW7) brought the case property and the result of analysis from SFSL, Junga. Inspector Ravinder Kumar .
(PW8) effected the initial recovery. ASI Kuldeep Kumar (PW9) conducted the investigation.
5. The accused, in his statement recorded under Section 313 of Cr. P.C. denied the prosecution's case in its entirety. He stated that a false case was made against him. The witnesses were interested. He was innocent. However, he did not produce any defence.
6. Learned Trial Court held that the testimonies of prosecution witnesses corroborated each other on material particulars. The integrity of the case property was established.
The provisions of Sections 42 and 50 of N.D. & P.S. Act did not apply to the present case. The testimonies of police officials could not be disbelieved because they happened to be the police officials. Non-supply of the copy of the seizure memo to the accused was not material. Non-production of the seal did not make the prosecution's case suspect. The minor discrepancies in the statements were not sufficient to discard the prosecution's case. The integrity of the case property was duly ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 7 ( 2025:HHC:28724 ) established. Hence, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved by 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 evidence was misconstrued and misinterpreted. The place of the incident was not identified by any person. The recovery from the conscious possession of the accused was not proved. There were variations in the statements of witnesses recorded by the police and by the Court.
The report of SFSL, Junga, was not admissible under the law.
Seal was not produced before the Court, and the prosecution's case was made suspect by the non-production of the seal.
Hence, 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. Vaibhav Kanwar, learned counsel for the appellant/accused, and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State.
9. Mr. Vaibhav Kanwar, learned counsel for the appellant/accused, submitted that there are various ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 8 ( 2025:HHC:28724 ) discrepancies in the statements of the official witnesses. The police did not associate any independent witness despite the opportunity and availability. The statements of prosecution .
witnesses that police signalled the drivers of vehicles to stop, but nobody stopped, are inherently improbable. The seal was not produced before the Court, and the integrity of the case property was doubtful. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
10. Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State, submitted that the seals were found intact in the laboratory, showing that there was no tampering.
The incident had taken place during the night, and the explanation furnished by the police that it was not possible to associate any independent witness during the night is plausible.
The accused did not assign any reason for his false implication.
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. Balbir Singh (PW1) stated that he, constable Pawan Kumar and Inspector Ravinder Kumar were on patrolling duty.
He did not mention the name of Constable Naveen Kumar. It .
was submitted that the testimony of Constable Balbir Singh will make the presence of Constable Naveen Kumar suspect. This submission cannot be accepted. Entry in the daily diary No.72 (Ex. P1/PW9) reads that Inspector/S.H.O. Ravinder Kumar, HHC Balbir Singh and Constable Naveen Kumar proceeded for 'nakabandi' towards Oachhghat-Nauni etc. This was the first document prepared by the police when the police were not even aware of the fact that any 'charas' would be recovered. Hence, the authenticity of this document cannot be doubted. Learned Trial Court had rightly pointed out that the incident had taken place on 04.12.2018 and the witnesses deposed in the year 2023- 2024. Therefore, minor contradictions were bound to exist and cannot be used to discard the prosecution's case. In the present case, also, the omission to mention Naveen Kumar when the documents and statements of other witnesses show him to be a member of the police party will not show that he was not present on the spot.
13. Balbir Singh (PW1) stated that the Inspector stopped the vehicles passing through the spot to associate independent ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 10 ( 2025:HHC:28724 ) witness, but nobody agreed. Constable Naveen Kumar (PW2) also made a similar statement. Inspector Ravinder Kumar (PW8), on the other hand, stated that he tried to associate an .
independent witness but could not find any. It was submitted that this is a major contradiction, which will show that the police did not make any serious efforts to associate independent witnesses. This submission cannot be accepted. There is no real contradiction in the statements of the prosecution witnesses.
The statements of Balbir Singh (PW1) and Constable Naveen Kumar (PW2) show that the Inspector tried to associate an independent witness, but no one agreed. Inspector Ravinder Kumar also stated that he tried to associate an independent witness, but no independent witness could be found. The refusal to join the investigation also means that the police were unable to find any independent witness. Therefore, there are no real contradictions in the statements of official witnesses.
14. It was submitted that failure to join an independent witness is fatal to the prosecution's case. This submission cannot be accepted. The statements of prosecution witnesses show that the police were on patrolling duty. They saw the accused coming from Oachhghat towards Solan. The accused got perplexed after seeing the police and tried to return. The ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 11 ( 2025:HHC:28724 ) police apprehended him based on suspicion. There is nothing in the cross-examination of the police officials to show that the police had any prior information. Hence, it was a case of chance .
recovery.
15. 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, and it was held that chance recovery means a recovery made by chance or by accident or unexpectedly. When the police were not looking for the drugs nor expected to find the drugs, any recovery is a chance recovery. It was observed 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.
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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.
16. In the present case, the police had no prior information about the accused carrying the 'charas'. They became suspicious of the conduct of the accused, and the present case will fall within the meaning of chance recovery.
17. It was laid down by the Hon'ble Supreme Court in Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the police party is under no obligation to join independent witnesses while going on patrolling duty, and the association of any person after effecting the recovery would be meaningless.
It was observed:
"3. Learned counsel for the appellant has taken us through the evidence recorded by the prosecution, as also the judgment under appeal. Except for the comment that the prosecution is supported by two police officials and not by any independent witness, no other comment ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 13 ( 2025:HHC:28724 ) against the prosecution is otherwise offered. This comment is not of any value since the police party was on patrolling duty, and they were not required to take along independent witnesses to support recovery if and when made. It has come to the evidence of ASI Jangir Singh that .
after the recovery had been effected, some people had passed by. Even so, obtaining their counter-signatures on the documents already prepared would not have lent any further credence to the prosecution's version."
18. In similar circumstances, it was laid down by this Court in Chet Ram Vs State, Criminal Appeal no. 151/2006, decided on 25.7.2018, that when the accused was apprehended after he tried to flee on seeing the police, there was no necessity to associate any person from the nearby village. It was observed: -
"(A)appellant was intercepted, and a search of his bag was conducted on suspicion, when he turned back and tried to flee, on seeing the police. Police officials did not have any prior information, nor did they have any reason to believe that he was carrying any contraband. They overpowered him when he tried to run away and suspected that he might be carrying some contraband in his bag. Therefore, the bag was searched, and Charas was recovered. After the recovery of Charas, there was hardly any need to associate any person from the nearby village because there remained nothing left to be witnessed.
It is by now well settled that non-association of independent witnesses or non-supporting of the prosecution version by independent witnesses where they are associated, by itself, is not a ground to acquit an accused. It is also well- settled that the testimony of official witnesses, including police officials, carries the same ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 14 ( 2025:HHC:28724 ) evidentiary value as the testimony of any other person. The only difference is that Courts have to be more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of the .
accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of official witnesses, in a case where independent witnesses are not associated, contradictions and inconsistencies in the testimony of such witnesses are required to be taken into account and given due weightage unless satisfactorily explained. Of course, it is only the material contradictions and not the trivial ones, which assume significance." (Emphasis supplied)
19. It was laid down by the Hon'ble Supreme Court of India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557:
(2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-
association of the independent witnesses will not be fatal to the prosecution case. However, the Court will have to scrutinise the statements of prosecution witnesses carefully. It was observed at page 566:
(C) Need for independent witnesses
19. It would be gainsaid that the lack of independent witnesses is not fatal to the prosecution's case. [ Kalpnath Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998 SC 201, para 9] However, such omissions cast an added duty on courts to adopt a greater degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction."::: Downloaded on - 26/08/2025 21:28:31 :::CIS 15
( 2025:HHC:28724 )
20. This position was reiterated in Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730, wherein it was observed at page 633:
.
"12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witnesses. As observed and held by this Court in a catena of decisions, examination of independent witnesses is not an indispensable requirement, and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808: (2019) 1 SCC (Cri) 420]].
13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563: (2020) 1 SCC (Cri) 767], while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under: (SCC p. 568) "15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521: (2011) 1 SCC (Cri) 1191] , relied on by the counsel for the respondent State, also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because the prosecution did not examine any independent witness would not necessarily lead to a conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652:
2001 SCC (Cri) 248], it was held as under:
(SCC p. 655) ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 16 ( 2025:HHC:28724 ) 'It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust in the actions and the documents made by .
the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature."
21. Similar is the judgment of this Court in Balwinder Singh &Anr. Vs State of H.P., 2020 Criminal L.J. 1684 , wherein it was held: -
"3. (iii) Learned defence counsel contended that in the instant case, no independent witness was associated by the Investigating Officer; therefore, the prosecution's case cannot be said to have been proved by it in accordance with the provisions of the Act. Learned defence counsel, in support of his contention, relied upon the titled Krishan Chand versus State of H.P.,2017 4 CriCC 531 3(iii)(d). It is by now well settled that a prosecution case cannot be disbelieved only because the independent witnesses were not associated."
22. This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223 , wherein it was held at page 204: -
"17. The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 17 ( 2025:HHC:28724 ) courts, has also been dealt with by this Court in Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563: (2020) 1 SCC (Cri) 767] holding that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was .
falsely implicated. Therefore, the said issue is also well settled and in particular, looking at the facts of the present case, when the conduct of the accused was found suspicious, and a chance recovery from the vehicle used by him is made from a public place and proved beyond a reasonable doubt, the appellant cannot avail any benefit on this issue. In our view, the concurrent findings of the courts do not call for interference."
23. A similar view was taken in Kehar Singh v. State of H.P., 2024 SCC OnLine HP 2825, wherein it was observed:
16. As regards non-association of the independent witnesses, it is now well settled that non-association of the independent witnesses or non-supporting of the prosecution version by independent witnesses itself is not a ground for acquittal of the Appellants/accused. It is also well-settled that the testimonies of the official witnesses, including police officials, carry the same evidentiary value as the testimony of any other person.
The only difference is that the Court has to be most circumspect while appreciating the evidence of the official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of the official witnesses, in cases where independent witnesses are not associated, contradictions and inconsistencies in the testimonies of such witnesses are required to be taken into account and given due weightage unless satisfactorily explained. However, the contradiction must be a material and not a trivial one, which alone would assume significance.
17. Evidently, this is a case of chance recovery; therefore, the police party was under no obligation to join independent witnesses while going on patrolling duty, ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 18 ( 2025:HHC:28724 ) and the association of any person after effecting the recovery would be meaningless.
Xxxx
19. A similar reiteration of law can be found in the .
judgment rendered by the learned Single Judge of this Court in Avtar @ Tarri v. State of H.P., (2022) Supreme HP 345, wherein it was observed as under: --
"24. As regards the second leg of the argument raised by learned counsel for the appellant, it cannot be said to be of much relevance in the given facts of the case. The factual situation was that the police party had laid the 'nakka' and immediately thereafter had spotted the appellant at some distance, who got perplexed and started walking back. The conduct of the appellant was sufficient to raise suspicion in the minds of police officials. At that stage, had the appellant not been apprehended immediately, the police could have lost the opportunity to recover the contraband. Looking from another angle, the relevance of independent witnesses could be there when such witnesses were immediately available or had already been associated at the place of 'nakka'. These, however, are not mandatory conditions and will always depend on the factual situation of each and every case. The reason is that once the person is apprehended and is with the police, a subsequent association of independent witnesses may not be of much help. In such events, the manipulation, if any, cannot be ruled out."
Xxxx
22. A similar reiteration of law can be found in a very recent judgment of the Coordinate Bench of this Court in Cr. A. No. 202 of 2020, titled Dillo Begum v. State of H.P., decided on 27.03.2024."
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24. Thus, in view of the binding precedents of this Court and the Hon'ble Supreme Court, the non-association of independent witnesses is not fatal, and the prosecution's case .
cannot be discarded due to the non-association of independent witnesses. However, the Court will have to carefully scrutinise the testimonies of the police officials.
25. Balbir Singh (PW1) stated in his cross-examination that they had parked their vehicle towards the right side while going from Solan and saw the accused from a distance of 50-60 meters when they were standing outside the vehicle. Constable Naveen Kumar (PW2) stated in his cross-examination that they saw the accused from a distance of 40-50 meters when they were standing outside the vehicle. The vehicle was parked facing Solan on the left side while coming from Oachhghat.
Inspector Ravinder Kumar (PW8) stated in his cross-
examination that they were moving forward and not coming towards the police station when they saw the accused. It was submitted that, as per the site plan (Ex.P3/PW8), the accused was coming from Oachhghat and the vehicle should have faced Oachhghat and not Solan. The fact that the vehicle was parked towards Solan makes the prosecution's case suspect that the police party saw the accused coming from the opposite side, and ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 20 ( 2025:HHC:28724 ) the accused ran away after seeing the police party. This submission cannot be accepted. The witnesses deposed about the parking of the vehicle and not about the direction of the .
vehicle in which it was proceeding. It is permissible for a vehicle to be parked towards the other side where the police intended to go after 'naka'. Hence, the mere fact that the vehicle was parked towards Solan does not make the prosecution's case suspect.
26. Witnesses Balbir Singh (PW1) and Naveen Kiumar (PW2) admitted in their cross-examination that there was no street light at the place of the incident, and it was dark. It was submitted based on this submission that it was not possible to see the accused in the darkness or for the accused to see the police. This submission cannot be accepted. There is no evidence that it was pitch dark, and it was not possible to see any person moving on the road. Hence, the prosecution's case cannot be doubted because the witnesses admitted that there was darkness.
27. It was submitted that there was no compliance with Section 50 of the N.D & P.S Act, and the accused was not given any option to search before the Magistrate or the gazetted officer. In the present case, the recovery was effected from the ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 21 ( 2025:HHC:28724 ) carry bag and not from the personal search of the accused. It was laid down by the Hon'ble Supreme Court in State of Punjab Versus Baljinder Singh & another, (2019) 10 SCC 473, that where .
the recovery was effected from the bag, briefcase, etc., non-
compliance with Section 50 is not fatal. It was observed:
"14. The law is thus well settled that an illicit article seized from the person during a personal search conducted in violation of the safeguards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance?
15. At this stage, we may also consider the following observations from the decision of this Court in Ajmer Singh v. State of Haryana [(2010) 3 SCC 746] : (2010 AIR SCW 1494, Para 16).] "15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply while searching the bag, briefcase, etc., carried by the person, and its non- compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non- compliance with Section 50 of the NDPS Act is relevant only where a search of a person is involved, and the said section is not applicable or attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc., do not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of the search of a ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 22 ( 2025:HHC:28724 ) person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of the search. Thirdly, this issue, in our considered opinion, is no more res Integra in view of the .
observations made by this Court in Madan Lai v.
State of H.P. [(2003) 7 SCC 465] : (AIR 2003 SC 3642). The Court has observed: (SCC p. 471, para
16) (at p. 3645, para 17 of AIR) "16. A bare reading of Section 50 shows that it only applies in the case of a personal search of a person. It does not extend to a search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra[(1999) 8 SCC 257]: (AIR 2000 SC 402), State of Punjab v. Baldev Singh r [(1999) 6 SCC 172] : (AIR 1999 SC 2378) and Gurbax Singh v. State of Haryana [(2001) 3 SCC 28]): (AIR 2001 SC 1002) . The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to a search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in the Baldev Singh case. Above being the position, the contention regarding non-
compliance with Section 50 of the Act is also without any substance."
16. As regards the applicability of the requirements under Section 50 of the Act is concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to the search of a vehicle or a container or premises.
17. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh (AIR 1999 SC 2378) clearly states that the conviction may not be based "only" on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 23 ( 2025:HHC:28724 ) other evidence on record, such material can certainly be looked into.
In the instant case, the personal search of the accused did not result in the recovery of any contraband. Even if there was any such recovery, the same could not be relied upon .
for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip's (AIR 2007 SC 369) case, however, has not adverted to the distinction as discussed herein above and proceeded to confer an advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh (AIR 1999 SC 2378) and other judgments.
19. Since in the present matter, seven bags of poppy husk, each weighing 34 kgs. were found from the vehicle which was being driven by accused Baljinder Singh with the other accused accompanying him, their presence and possession of the contraband material stood completely established."
28. This position was reiterated in Kallu Khan Vs State, AIR 2022 SC 50, and it was observed:-
"15. Simultaneously, the arguments advanced by the appellant regarding non-compliance with Section 50 of the NDPS Act are bereft of any merit because no recovery of contraband from the person of the accused has been made, to which compliance with the provision of Section ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 24 ( 2025:HHC:28724 ) 50 NDPS Act has to follow mandatorily. In the present case, in the search for a motorcycle at a public place, the seizure of contraband was made, as revealed. Therefore, compliance with Section 50 does not apply in the present case. It is settled in the case of Vijaysinh(supra) that in .
the case of the personal search only, the provisions of Section 50 of the Act are required to be complied with but not in the case of the vehicle as in the present case, following the judgments of Surinder Kumar(supra) and Baljinder Singh(supra). Considering the facts of this Court, the argument of non-compliance of Section 50 of the NDPS Act advanced by the counsel is hereby repelled."
29. Similar is the judgment in Dayalu Kashyap versus State of Chhattisgarh, 2022 (1) RCR(Cri) 815(SC) wherein it was observed:-
"5. 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 the State of Rajasthan v. Parmanand & Anr., 2014 5 SCC 345, more specifically, para 19. The judgment, in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh, 1999 6 SCC 172 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 recorded only the on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 25 ( 2025:HHC:28724 ) himself searched by 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.
6. In the conspectus of the facts of the case, we find the .
recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by a violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant."
30. This judgment was followed in Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262 : AIR 2023 SC 5164, and it was observed:
"126. As such, there is no direct conflict between SK.
Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK. Raju (supra), the contraband was recovered from the bag which the accused was carrying, whereas in Baljinder Singh (supra), the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being "inextricably linked to the person". Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both the person of the accused as well as the bag are searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra), which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 26 ( 2025:HHC:28724 ) searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the large Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down good law.
.
127. In the facts of the present case, there is no scope for applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the case at hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag which he was carrying on his shoulder.
128. We do not propose to say anything further as regards SK. Raju (supra) as well as Baljinder Singh (supra). We adhere to the principles of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench answering the reference in Pawan Kumar (supra)."
31. In view of the binding precedents of the Hon'ble Supreme Court, the provisions of Section 50 of the NDPS Act do not apply to the present case, and the submission that the prosecution's case is to be rejected because of the violation of Section 50 of the NDPS Act is not acceptable.
32. The police officials deposed consistently about the interception of the accused and recovery of 'charas' from the carry bag being carried by the accused. Nothing was suggested to the police officials to show that they had any motive to depose falsely against the accused or to falsely implicate him. 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 ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 27 ( 2025:HHC:28724 ) 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 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."
33. 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)
34. This position was reiterated in Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, wherein it was observed:
::: Downloaded on - 26/08/2025 21:28:31 :::CIS 28( 2025:HHC:28724 )
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 588after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48], State (Govt. 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 police Department of Police should be viewed with distrust.
This is also based on the principle that the quality of the evidence outweighs 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."::: Downloaded on - 26/08/2025 21:28:31 :::CIS 29
( 2025:HHC:28724 )
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 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 r 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."
::: Downloaded on - 26/08/2025 21:28:31 :::CIS 30( 2025:HHC:28724 )
35. Learned Trial Court had accepted the testimonies of police officials as correct. Nothing was shown to this Court that these findings are incorrect. It was laid down by the Hon'ble .
Supreme Court in Goverdhan v. State of Chhattisgarh (2025) SCC Online SC 69 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: -
"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 of 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 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 ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 31 ( 2025:HHC:28724 ) 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 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."::: Downloaded on - 26/08/2025 21:28:31 :::CIS 32
( 2025:HHC:28724 )
36. It was submitted that the police did not comply with the requirement of Section 42 of the NDPS Act, which is fatal to the prosecution's case. This submission is not acceptable. The .
accused was walking on the open road with the backpack, and Section 42 of the NDPS Act does not apply to an open place but only to a closed place. It was laid down by the Hon'ble Supreme Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal 2018 (9) SCC 708, that Section 42 does not apply to the search made of a person walking in an open space. It was observed: -
"12. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
13. The appellant was walking along Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or enclosed place. The place of occurrence was accessible to the public and fell within ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 33 ( 2025:HHC:28724 ) the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application."
37. It was submitted that the case property was not resealed, and this violated the mandatory provisions of Section .
55 of the NDPS Act and the case property was not resealed. This submission is not acceptable. The recovery was made by Inspector/SHO Ravinder Kumar, and if he thought that, being an SHO, he was not supposed to comply with the requirement of Section 55 of the NDPS Act, he cannot be faulted. It was laid down by this Court in Prem Bahadur Vs State of H.P., 2009 (1) Shim. L.C. 65, that the provisions of Sections 52 and 55 of the NDPS Act are not mandatory and directory. When the investigating officer was the SHO and he had not resealed the case property, believing that, since he was the SHO and there was no such requirement, it was not sufficient to acquit the accused. It was observed:-
"12. From a perusal of the aforesaid two judgments, it is apparent that the provisions of Sections 52 and 55 are not mandatory but only directory. If there is substantial compliance with the same, the accused cannot be acquitted. If there are sufficient reasons for non- compliance with the Sections, then also the accused cannot claim the benefit of acquittal under these provisions. At best, the Court may have to scrutinise the prosecution's evidence with greater care and caution.
13. In the present case, the recovery of the Charas has been proved beyond a reasonable doubt. We cannot lose ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 34 ( 2025:HHC:28724 ) sight of the fact that the investigating officer, PW6, was also the SHO of the Police Station, Manali. He presumed that he was the charge of the police station and, therefore, the provisions of Sections 52 and 55 were not applicable to him. At best, it can be presumed that when .
he was the investigating officer, some other police officer must be deemed to be in charge of the police station. At best, we can presume that MHC Khem Chand (PW 2) was the in-charge of the police station. However, even if we presume that MHC Khem Chand (PW 2) was the in- charge of the police station, then the mere non- compliance of Sections 52 and 55 by not putting the seal on the sample would not by itself be a ground to acquit the accused."
38. Therefore, the prosecution cannot be doubted because the case property was not resealed by Inspector Ravinder Kumar.
39. It was submitted that the seal was not produced before the Court, and the same is fatal to the prosecution's case.
This submission is not acceptable. It was laid down by 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 ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 35 ( 2025:HHC:28724 ) 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-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."
40. 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 was 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 ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 36 ( 2025:HHC:28724 ) 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."
.
41. 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 produced before the Court was perverse.
42. In the present case, seal impressions (Ex. P1/PW1 & Ex. P8/PW8) were produced before the Court. Seal impression was also put on the NCB-I form (Ex. P3/PW6). Learned Trial Court noticed while recording the statement of Balbir Singh (PW1) that the cloth parcel (Ex. MO1) was sealed with five seals of impression 'C', four seals of FSL and three seals of Court seal.
Seals were intact. Therefore, the learned Trial Court satisfied itself regarding the correctness of the seal impression, and the failure to produce the seal is not material.
43. The result of analysis (Ex. P9/PW8) shows that the cloth parcel bearing five seals of seal 'C' and three seals of Judicial Magistrate First Class, Court No.2, Solan was received in the laboratory. The seals were found intact and were tallied with the specimen seal sent by the forwarding authority and seal impression impressed on the NCB-I Form. This report ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 37 ( 2025:HHC:28724 ) establishes 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 was separately sent, tallied with the specimen impression of a seal taken separately. Thus, there was no tampering with the seal, and the seal impressions were separately taken and sent to the expert also."
44. Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held:
"It has also come to evidence that to date, the parcels of the sample were received by the Chemical Examiner, and 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."
45. 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 ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 38 ( 2025:HHC:28724 ) the Court, and there was no evidence of tampering. Seals were found to be intact, which would rule out the possibility of tampering. It was observed:
.
"The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom, which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put in the samples were in any manner tampered with before it was examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to how the aforesaid delay of seven days has affected the said examination, when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion, is based on surmises and conjectures and cannot take the place of proof.
17. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution's 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."::: Downloaded on - 26/08/2025 21:28:31 :::CIS 39
( 2025:HHC:28724 )
46. Similar is the judgment of the Hon'ble Supreme Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563 , wherein it was held: -
.
"10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence was incomplete. In this regard, it is to be noticed that Yogi Raj, SHO, handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13. The concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody, in Police Station Khuian Sarwar, till further orders. Since Joginder Singh, ASI, was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all.
11. Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 40 ( 2025:HHC:28724 ) was complete." (Emphasis supplied)
47. Therefore, the integrity of the case property is duly established in the present case.
.
48. Therefore, the learned Trial Court had rightly held that the accused was found in possession of 345 grams of 'charas' and he was rightly convicted of the commission of an offence punishable under Section 20(b)(ii)(B) of the N.D. & P.S. Act.
49. Learned Trial Court sentenced the accused to undergo rigorous imprisonment for five years, pay a fine of ₹25,000/-, and in default of payment of fine to undergo simple imprisonment for six months. A perusal of the notification issued by the Central Government shows that 100 grams of charas is a small quantity, whereas 1 kg of charas is the commercial quantity. It means that a person possessing 1 kg of charas can be sentenced to 10 years of imprisonment. It was laid down by the Hon'ble Supreme Court in Uggarsain v. State of Haryana, (2023) 8 SCC 109: 2023 SCC OnLine SC 755 that the Courts have to apply the principle of proportionality while imposing a sentence. It was observed at page 113:
10. This Court has, time and again, stated that the principle of proportionality should guide the sentencing process. In Ahmed Hussein Vali Mohammed ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 41 ( 2025:HHC:28724 ) Saiyed v. State of Gujarat [Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 :
(2009) 3 SCC (Cri) 368 : (2009) 8 SCR 719] it was held that the sentence should "deter the criminal from achieving the avowed object to (sic break the) law," and .
the endeavour should be to impose an "appropriate sentence." The Court also held that imposing "meagre sentences" merely on account of lapse of time would be counterproductive. Likewise, in Jameel v. State of U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712] while advocating that sentencing should be fact dependent exercises, the Court also emphasised that : (Jameel case [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712], SCC p. 535, para 15) "15. ... the law should adopt the corrective r machinery or deterrence based on a factual matrix. By deft modulation, the sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration." (emphasis supplied)
11. Again, in Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 : (2012) 8 SCR 189] the Court stressed that : (SCC p. 744, para 33) "33. ... It is the duty of the court to see that an appropriate sentence is imposed, regard being had to the commission of the crime and its impact on the social order" (emphasis supplied) and that sentencing includes " adequate punishment". In B.G. Goswami v. Delhi Admn. [B.G. Goswami v. Delhi Admn., (1974) 3 SCC ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 42 ( 2025:HHC:28724 ) 85: 1973 SCC (Cri) 796 : (1974) 1 SCR 222], the Court considered the issue of punishment and observed that punishment is designed to protect society by deterring potential offenders as well as prevent the guilty party from repeating the .
offence; it is also designed to reform the offender and reclaim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentences.
12. In Sham Sunder v. Puran [Sham Sunder v. Puran, (1990) 4 SCC 731: 1991 SCC (Cri) 38: 1990 Supp (1) SCR 662], the appellant-accused was convicted under Section 304 Part I IPC. The appellate court reduced the sentence to the term of imprisonment already undergone, i.e. six months. However, it enhanced the fine. This Court ruled that the sentence awarded was inadequate. Proceeding further, it opined that: (SCC p. 737, para 8)
8. ... The court, in fixing the punishment for any particular crime, should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of the opinion that to meet the ends of justice, the sentence has to be enhanced." (emphasis supplied) This Court enhanced the sentence to one of rigorous imprisonment for a period of five years. This Court has emphasised, in that sentencing depends on the facts, and the adequacy is determined by factors such as "the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected "
[Ravada Sasikala v. State of A.P. [Ravada ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 43 ( 2025:HHC:28724 ) Sasikala v. State of A.P., (2017) 4 SCC 546 : (2017) 2 SCC (Cri) 436 : (2017) 2 SCR 379] ]. Other decisions, like: State of M.P. v. Bablu [State of M.P. v. Bablu, (2014) 9 SCC 281 : (2014) 6 SCC (Cri) 1 : (2014) 9 SCR 467]; Hazara Singh v. Raj Kumar [Hazara .
Singh v. Raj Kumar, (2013) 9 SCC 516 : (2014) 1 SCC (Cri) 159 : (2013) 5 SCR 979] and State of Punjab v. Saurabh Bakshi [State of Punjab v. Saurabh Bakshi, (2015) 5 SCC 182 : (2015) 2 SCC (Cri) 751 : (2015) 3 SCR 590] too, have stressed on the significance and importance of imposing appropriate, "adequate" or "proportionate" punishments.
50. The learned Trial Court held that a deterrent approach is to be adopted. The Legislature has already taken care of the same while prescribing the penalty of up to 10 years.
Learned Trial Court did not assign any reason to deviate from the principle of proportionality. If the principle of proportionality is applied to the present case, the accused possessing 345 grams of 'charas' would be liable to punishment for three years and four months and pay a fine of ₹34,500/-.
Hence, the sentence imposed by the learned Trial Court is excessive, which is liable to be interfered with.
51. In view of the above, the present appeal is partly allowed and the appellant/accused is sentenced to undergo rigorous imprisonment for three years and four months and to pay a fine of ₹34,500/- and in default of payment of fine, to further undergo rigorous imprisonment for four months for the ::: Downloaded on - 26/08/2025 21:28:31 :::CIS 44 ( 2025:HHC:28724 ) commission of offence punishable under Section 20(b)(ii)(B) of the ND&PS Act. Subject to this modification, the rest of the sentence awarded by the learned Trial Court is upheld. The .
modified warrants be prepared accordingly.
52. Records of the learned Trial Court be sent back forthwith alongwith copy of the judgment. Pending applications, if any, also stand disposed of.
26 August 2025.
r to (Rakesh Kainthla)
Judge
(yogesh)
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