Himachal Pradesh High Court
Reserved On: 23.04.2025 vs State Of H.P on 27 August, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:28892 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 397 of 2022 .
Reserved on: 23.04.2025
Date of decision: 27.08.2025
Rajesh Kumar ...Appellant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. The Hon'ble Mr. Justice Bipin C. Negi, Judge. Whether approved for reporting? Yes.
For the Appellant: Mr. J. L. Bhardwaj, Sr. Advocate with Ms. Dhanwati, Advocate vice Mr. Sanjay Bhardwaj, Advocate.
For the Respondent: Ms. Seema Sharma, Dy. A.G. Vivek Singh Thakur, Judge Appellant-convict has preferred this appeal against the judgment/order dated 29.09.2022, passed in NDPS Trial No. 44 of 2021, titled as State of H. P. vs. Rajesh Kumar, by the learned Special Judge, Mandi, District Mandi, H.P., whereby the appellant has been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act') and sentenced to undergo 11 years rigorous imprisonment and to pay fine of Rs. 1,10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two years.
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2. Prosecution story is that on 06.02.2021, HC Pradeep Kumar (PW-8), HC Tek Chand, C. Shankar Sidharth (PW-9), C. .
Ramji Dass, C. Chirag alongwith driver LHC Vijay Singh, left the office of Special Investigating Unit (for short 'SIU'), Mandi, in official Vehicle No. HP-07A-0282 and private vehicle No. HP-66- 2658, for patrolling and detection of offence related to excise and narcotic drugs, in the areas of Balh, Gohar, Janjheli etc. after
3.
r to recording Report No. 6, dated 06.02.2021 (Ext. PW3/A) in SIU, Mandi.
Police party, at about 4:00 p.m., reached at Ganei and noticed a person (Rajesh Kumar), coming towards Janjheli, who on noticing the police party, turned around and tried to go back with fast steps. He was having a carry bag in his right hand. On arising suspicion, HC Pradeep Kumar chased the said person for 10-12 steps and the moment, the person was about to flee, he was over-powered by HC Pradeep Kumar with the help of other police officials and was brought to the place where from he had turned around. He was perplexed and was not able to explain the reason to turn around and for attempt to flee from the spot. Therefore, it was considered appropriate to search his bag.
4. HC Pradeep Kumar, requested the persons crossing the spot on foot or in their vehicles, but all of them, due to ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 3 2025:HHC:28892 Corona Pandemic and other personal problems, refused to become witness to the search. Whereupon, C. Shankar Sidharth .
was sent to bring independent witness, who after some time, came back alongwith Smt. Sonia, Pradhan, Gram Panchayat, Nehra and Vijay Kumar, Up-Pradhan, Gram Panchayat, Nehra.
5. Thereafter, HC Pradeep Kumar, in presence of Pradhan and Up-Pradhan and companion officials, by associating C. Shankar Sidharth out of them as a witness, enquired about the name and address of the person apprehended, who disclosed his name Rajesh Kumar with his identification, who is appellant.
6. After giving personal search and that of investigating kit to Rajesh, carry bag of Rajesh Kumar was searched, wherein one more white colour carry bag was found and on opening its knot, stick type cannabis was recovered. On weighing, on the electronic measuring machine, available in the I.O. Kit, it was found to be 1.5 kilograms.
7. Thereafter, recovered contraband was packed in the similar manner and was sealed with nine stamps of seal 'I SIU'. NCB-I Form was filled in triplicate and sample of seal 'I SIU' was embossed on NCB-I Form and after taking sample of seal on separate cloth, the sample seal was handed over to witness Vijay Kumar (PW-13). Seizure memo and spot site map were prepared. ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 4
2025:HHC:28892 The memo, parcel of seized contraband, sample seals were duly signed by appellant Rajesh Kumar and witnesses.
.
8. On finding that the offence under Section 20 of the NDPS Act was committed by Rajesh Kumar, ruka was prepared and sent to Police Station Gohar through C. Shankar Sidharth (PW-9), on the basis of which, FIR No.12/2021, dated 06.02.2021 was registered under Section 20 of the NDPS Act in Police During Station, Gohar and for further investigation ASI Lalit Kumar was deputed as Investigating Officer.
9. investigation, on identification of H.C. Pradeep Kumar, spot map was prepared and statement of witnesses were recorded and thereafter recovered contraband alongwith documents were submitted to the SHO. (PW-10) Suram Singh, who re-sealed it and thereafter deposited the same in Malkhana alongwith the documents at 9:53 p.m.
10. For having sufficient ground to arrest Rajesh Kumar, he was arrested at 10:20 pm and information about his arrest was given to his wife Smt. Devli Devi on her mobile phone No. 80910-32808.
11. On 07.02.2021, appellant was produced before the JMIC-III, Mandi and was sent in police remand up till 09.02.2021. On 08.02.2021, recovered contraband alongwith documents and inventory was produced before JMIC-III, in terms of Section 52A ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 5 2025:HHC:28892 of the NDPS Act. The entire contraband was checked and verified by the Magistrate and contraband was put back into the original .
packet and was sealed with 4 seals of JMIC-III, Mandi. No sample was drawn by the Magistrate. However, entire mass of recovered contraband i.e. 1.5 kilograms alongwith documents were sent to the State Forensic Science Laboratory (for short 'SFSL') vide RC No. 15/2021 Ext. PW7/B through C. Ajay Kumar (Not examined).
12. Special report, under Section 57 of the NDPS Act, was prepared by PW-11 Lalit Kumar, I.O. and was submitted to PW-5 Deputy Superintendent of Police Karan Singh Guleria, who handed over the same to PW-6 Raj Kumar, who entered it in the Register at Serial No. 24. Copy of the extract of Register and report are exhibited as Ex.PW6/A and Ext. PW6/B.
13. PW-1 HHC Suresh Kumar brought the result of analysis of SFSL alongwith case property and documents on 05.03.2021 and deposited the same with PW-12 Hem Chand.
14. After completion of investigation, challan was presented before the learned Special Judge, Mandi and appellant was subjected to trial.
15. After framing of charge, to prove its case, prosecution has examined 13 witnesses, whereas appellant Rajesh Kumar has examined DW-1 Kaushalya Devi as a defence witness, who is his real sister.
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16. Learned counsel for the appellant has submitted that there are material contradictions in the statements of .
prosecution witnesses as well as documentary evidence, as FIR number in NCB Form has been manipulated and tampered to reflect FIR No. 12/21; in memo of seizure, there is reference of white coloured carry bag, but in the SFSL report white and multi coloured carry bag is stated to have been received in SFSL; link evidence is missing as Ajay Kumar, who took the contraband to the SFSL, has not been examined, and PW-1 Suresh Kumar has claimed that it was he who brought the result of analysis and seized contraband from the SFSL but PW-12 Hem Chand, the then MHC has deposed that it was Daleep Kumar, who brought back the report of analysis and contraband from the SFSL and there is no corroboration of the statement of PW-7 HC Humender that Ajay Kumar received the contraband and other documents and deposited the same in SFSL vide RC No. 15/21 and, thus, for these missing links and contradictory depositions and therefore, appellant deserves to be acquitted.
17. It has also been argued on behalf of the appellant that there were two independent witnesses, namely, Vijay Kumar and Smt. Sonia, but only one witness PW-13 Vijay Kumar has been examined, but he has also not supported the prosecution case, whereas another alleged independent witness has not ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 7 2025:HHC:28892 been examined and, thus, for withholding material witness from Court, adverse inference against the prosecution deserves to be .
drawn and the appellant deserves to be acquitted.
18. It has been further contended on behalf of the appellant that in all documents except examination report of SFSL (Ex. PW10/E), there is reference of seal 'I SIU', whereas in the report of SFSL, there is mention of 9 seals of 'I SUI', on this fact, coupled with the facts that the contraband was received in SFSL was found in white and multi-coloured carry bag instead of white bag and C. Ajay Kumar who allegedly took the contraband to SFSL, has not been examined, creates doubt about the veracity of the investigation and evidence being relied upon against the appellant.
19. To substantiate plea of manipulation of documents especially contents of NCB Form, reference of photocopy of NCB Form placed on record in evidence in cross-examination as Ext. D-1, has been made, wherein case FIR number of the case has been mentioned as 15/21 instead of 12/21 but the manipulated NCB-I Form has been placed on record as Ext. PW8/B, wherein after applying fluid, the FIR number has been manipulated from FIR No. 15/21 to 12/21. Therefore, it has been contended that when the contraband mentioned in NCB Form is of some other FIR, the contraband sent to SFSL and subjected to examination ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 8 2025:HHC:28892 by the forensic laboratory is not connected to the case FIR No. 12/21 registered against the appellant. According to the counsel .
for appellant, in NCB Form-I, case FIR No. originally mentioned as 15/21, has been changed to FIR No. 12/21 lateron i.e. at the time of filing challan. Thus case property sent to SFSL was belonging to some other case, and therefore, there is no link between the alleged contraband claimed to be recovered from the appellant and the examination.
20.
contraband
r to
deposited with SFSL for
It is evident from the material placed on record that chemical Ajay Kumar was cited as a witness in the challan presented in the Court but at the time of recording the evidence he had been suspended from the job in departmental proceedings initiated against him and, thereafter, his whereabouts were not known, therefore, he was not examined. Therefore, non-examination of Ajay Kumar, for the explanation rendered for his non- examination, is not fatal to the prosecution case, and handing over the contraband alongwith the documents to him with RC No. 15/21 and deposit of the same in SFSL has been established by PW-7 HC Humender as well as reference thereof in SFSL report, as specifically recorded at Sr. No. 5, the mode of receipt in the said report that the contraband was received in SFSL through C. Ajay Kumar vide RC No. 15/21, dated 08.02.2021. ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 9
2025:HHC:28892 Therefore, plea with respect to missing link on this count is not sustainable.
.
21. Independent witness PW13 Vijay Kumar, Up-Pradhan, has given three versions with respect to the stage of search procedure. In examination-in-chief, he stated that the police had shown carry bag to him by stating that it was recovered from Rajesh and in cross-examination, he had stated that he saw the bag in the hands of police at the time of his arrival and personal search of accused was not conducted in his presence. He has given contradictory plea with respect to the search of the bag and the possession of the bag at the time of his arrival. Therefore, on this count, his statement is not reliable. However, in examination-in-chief as well as in cross-examination by the public prosecutor, he has deposed and admitted that at about 3- 4 pm, he had received call from the police that someone had been apprehended at Ganei, therefore, he went to Ganei and the police had caught appellant Rajesh Kumar. It is also relevant to notice that though, in examination-in-chief, he has stated that he was not able to identify him in the Court, but in cross- examination, he has stated that the appellant present in Court was the same person, who was apprehended by the police with clarification that earlier he could not identify him because he was not wearing mask at that time. It has also been recorded by the ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 10 2025:HHC:28892 Court in observations that he had identified the appellant Rajesh correctly. He has also admitted that he, Sonia and Shankar .
Sidharth were present on the spot and had signed various memos by identifying signatures.
22. It is settled law that statements of hostile witness cannot be discarded in toto, but the reliable portion of his statement, corroborating or corroborated by other material on
23.
r to record, can be taken into consideration for determining the guilt or innocence of an accused.
In present case, though another independent witness Sonia has not been examined, but at the same time, it is also fact that she has also not been summoned by the appellant as a witness despite the fact that in defence, appellant had led evidence and Sonia being Pradhan of the Gram Panchayat was well known to him, and he had opportunity to contradict the claim of the prosecution by producing her in the Court as a defence witness.
24. No doubt, prosecution has to prove its case on the basis of evidence led by it but independent witness PW-13 Vijay Kumar , examined in the Court, has corroborated his presence on the spot at the relevant point of time as well as presence of Sonia, police party and the appellant Rajesh Kumar, recovery of charas, weighing thereof, seizure and sealing procedure ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 11 2025:HHC:28892 conducted by the police. In the photographs proved on record Ex. PW9/A-1 to Ex. PW9/A-5, independent witnesses Vijay Kumar, .
Sonia and appellant Rajesh Kumar were clearly visible present on spot alongwith police party. Nothing has been produced in evidence to rebut the same. Therefore, on this ground, plea raised on behalf of the appellant to disbelieve the prosecution story is not sustainable.
25. PW-1 C. Suresh Kumar No. 224, deposed that on 05.03.2021 he had brought the result of analysis and case property from SFSL and handed over it to the then MHC. As per prosecution story, as also has not been disputed, PW-12 HC Hem Chand was MHC on duty on that day i.e. 05.03.2021. Though HC- 12 Hem Chand in his deposition, has stated that analysis report and case property was brought back from SFSL by one C. Daleep Kumar, No. 24, but at the same time, he has also stated that he made entry in this regard at Sr. No. 388 of the Malkhana Register, extract whereof has been placed on record as Ext. PW- 7/A and the entry of receiving analysis report and case property has been recorded in red circle.
26. On perusal of Ext. PW-7/A, reading the entry made by PW-12 Hem Chand, at the time of receipt of analysis report and case property on 05.03.2021, encircled in red circle, it transpires that it has been recorded by PW-12 HC Hem Chand ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 12 2025:HHC:28892 with his initial that on 05.03.2021 result and parcel with 4 stamps of SFSL was received in the Police Station through HHC .
Suresh Kumar, No. 224. PW-12 Hem Chand in his examination-in- chief, has deposed with respect to this entry made by him against Sr. No. 388 and the said statement has not been disputed and this is corroborated by the statement of PW-1 Suresh Kumar. So far as, deposition of PW-12 Hem Chand stating that HHC Daleep Kumar, No. 24 had brought the parcel and analysis report from SFSL, Junga is concerned, the same appears to be a result of faded memory depending upon capability of retention power of this witness, as the entry was made in March, 2021 and this witness was examined in the Court on 25.05.2022. This discrepancy in the statement of PW-12 Hem Chand stood clarified from the evidence on record, therefore, it is also not fatal to the prosecution case.
27. No doubt, in the document Ext. D-1, which appears to be a copy of NCB Form supplied to the appellant-accused by the Investigating Officer/prosecution before or at the time of filing of challan, case FIR number has been mentioned as FIR No. 15/21. However, it is also apt to recall that in the SFSL report Ext. PW10/E, it has been clearly mentioned that contraband was received in SFSL, Junga, in case FIR No. 12/21, through C. Ajay Kumar vide RC No. 15/21. In NCB Form produced in evidence in ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 13 2025:HHC:28892 Court, there is a correction made with respect to number of FIR by correcting it from FIR No. 15/21 to 12/21. It is evident from .
other material on record, especially, the examination report of SFSL, where the case property was received on 09.02.2021, that mention of case FIR No. 15/21, in the documents supplied to the appellant-accused before or at the time of filing challan, is an inadvertent ministerial mistake, particularly, for the reason that the contraband/case property was sent for SFSL through C. Ajay Kumar vide RC No. '15/21' and there is possibility that inadvertently FIR No. 15/21 was mentioned at both places i.e. case FIR number as well as RC number. The possibility of sending case property of case FIR No. 15/21 to SFSL instead of case property of case FIR No. 12/21 is also ruled out from the extract of Malkhana Register, proved on record as Ext. PW-7/A, wherein at Sr. No. 389, there is a entry of case FIR No. 15/21, dated 19.02.2021, registered under Sections 20 and 29 of the NDPS Act and deposit of the case property of FIR No. 15 of 2021 in Malkhana on 19.02.2021. Because the case property/contraband in present case, was sent to SFSL vide RC No. 15/21 on 08.02.2021, after producing it before JMIC on 08.02.2021, through C. Ajay Kumar, therefore, there was no chance of mixing or exchange/replacement of contraband of FIR No. 15/21 with the case FIR No. 12/2021 i.e. contraband of the present case. ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 14
2025:HHC:28892 The process of sending and submitting the case property in the present case was completed much prior to registration of FIR No. .
15/21. Therefore, the plea raised on this count is also not sustainable.
28. With respect to mention of seal 'I SUI' in examination report supplied by the SFSL is concerned, the same has been clarified by the prosecution by placing on record communication dated 15.06.2022 as Ex. PA, received from Assistant Director, NDPS Division, SFSL, Shimla, wherein, it has been communicated that the case property/parcel received through C. Ajay Kumar, vide RC No. 15/21, dated 08.02.2021, was bearing 9 seals of 'I SIU' but not 'I SUI', and in Examination Report, 9 seals of 'I SUI' were inadvertently mentioned at serial No. 7 of Examination Report Ex.PW10/E as 'SUI' due to typing mistake. This document Ex. PA has not been rebutted by the defence.
29. With respect to colour of carry bag, it is also apparent from the photographs taken before the Judicial Magistrate that in internal carry bag in which sticks of charas were found was white in colour, whereas the outer carry bag in which the white carry bag having sticks were found, was though white but with coloured printing thereon and, therefore, there is no discrepancy in mentioning the colour of the carry bag in the ::: Downloaded on - 27/08/2025 21:27:23 :::CIS 15 2025:HHC:28892 seizure memo as well as in the SFSL report because internal as well as external bags were white in colour, however, external .
bag was also having multi coloured printing thereon. Observation and expression thereof also vary person to person. Therefore, this plea on this count on behalf of the appellant is also not sustainable.
30. As, not only for deposition of official witnesses, but for admission of the independent witness PW-13 Vijay Kumar, the prosecution had successfully discharged onus of recovery of contraband from the appellant, therefore, for reverse onus upon the appellant, especially, for the provisions of Sections 35 and 54 of the NDPS Act, it was for the appellant to prove the contrary by rebutting any presumption of commission of offence as provided under Sections 35 and 54 of the NDPS Act.
31. No other point urged.
32. After going through the entire material on record, the judgment passed by the learned Trial Court and considering the submissions made by both sides, as discussed supra, we are of the considered opinion that there is no merit in the appeal. Accordingly, the appeal is dismissed.
(Vivek Singh Thakur)
Judge
(Bipin C. Negi)
27 th
August, 2025 Judge
(sanjeev)
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