Himachal Pradesh High Court
Reserved On: 6.10.2025 vs State Of H.P on 22 November, 2025
2025:HHC:39599
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 503 of 2023
Reserved on: 6.10.2025
.
Date of Decision: 22.11.2025
Ranjeet Singh ...Appellant
Versus
State of H.P. ...Respondent
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1 No.
For the Appellant : Ms Prajwal Busta, Advocate, Legal
Aid Counsel.
For the Respondent : Mr Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment of conviction dated 17.10.2023 and order of sentence dated 18.10.2023, passed by learned Special Judge, Sarkaghat, District Mandi, H.P., (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (NDPS) and sentenced to undergo rigorous imprisonment for four years, pay 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 22025:HHC:39599 a fine of ₹25,000/- and in default of payment of fine to undergo further imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the .
learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused of before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that rt Inspector/SHO Amar Singh (PW10), ASI Govind Pal (PW8), ASI Rajesh Kumar (PW7), HHC Malkiyat Chand (PW4), Constable Ajay Kumar (PW6), and HHG Parveen Kumar were present at Galu for traffic checking on 13.11.2014, in the official vehicle bearing registration No. HP-33C-1821 being driven by HHC Kuldeep Chand. A vehicle bearing registration No. HP-01D-3589 came from Gumma at about 4.25 PM. The police signalled the driver to stop the vehicle; however, the driver sped away towards Jogindernagar. The police followed the vehicle and intercepted the vehicle bearing registration No. HP-01D-3589 at some distance. The driver identified himself as Ranjeet Singh (the accused). He was frightened. The place of the incident was lonely and deserted. No independent witnesses were available. The ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 3 2025:HHC:39599 police searched the vehicle and recovered one beige bag kept beneath the driver's seat bearing the words 'Dharwal Garments' (Ex.P4). The police checked the bag and found a polythene bag .
(Ex.P5) containing black sticks (Ex.P6). The police checked the sticks and smelled them. They were found to be charas. The police weighed the charas and found its weight to be 800 grams.
of The police put the charas into the polythene bag and the polythene bag into the cloth bag. The cloth bag was put in a cloth rt parcel, and the parcel was sealed with six impressions of seal 'R'.
NCB-1 Form (Ex.P10/PW10) was filled in triplicate, and the seal impression was put on the form. Seal impression (Ex.P2/PW7) was taken on a separate piece of cloth, and the seal was handed over to ASI Govind Pal after its use. The police seized the parcel and the car vide memo (Ex.P1/PW7). The personal search of the accused was conducted, but no incriminating substance was found in his possession. The memo (Ex.P7/PW10) was prepared.
Rukka (PW11/PW10) was prepared and sent to the Police Station through Constable Ajay Kumar. FIR (Ex.PW6/A) was registered in the Police Station. Amar Singh (PW10) investigated the matter.
He prepared the site plan (Ex.P12/PW10) and recorded the statements of witnesses as per their version. He arrested the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 4 2025:HHC:39599 accused vide memo (Ex.P8/PW10) and prepared the identification certificate (Ex.P9/PW10). Amar Singh handed over the case property on his return to HC Gopal Chand (PW2), who made an .
entry in Register No.19 at Serial No.853 (Ex.PW2/B) and deposited the case property in Malkhana. He handed over the case property, NCB-1 Form to Constable Vikram Singh with a of direction to deposit them at SFSL, Junga vide RC No. 166/14.
Constable Vikram deposited all the articles in a safe condition at rt SFSL, Junga and handed over the receipt to HC Gopal Chand on his return. Amar Singh (PW10) prepared the special report (Ex.P13/PW10) and handed it over to HHC Malik Chand with a direction to hand it over to Sub Divisional Police Officer (SDPO), Sarkaghat. HHC Malik Chand handed over the special report to SDPO Sanjeev Bhatia, who made the endorsement on the special report and handed it over to HC Prakash Chand (PW3). HC Prakash Chand made an entry in the register of the special report (Ex.PW3/A) and retained it on record. The result of the analysis (Ex.P14/PW10) was issued, in which it was mentioned that the exhibit was an extract of cannabis and a sample of charas, which contained 20.44% W/W resin in it. The statements of remaining witnesses were recorded as per their version, and after the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 5 2025:HHC:39599 completion of the investigation, a challan was prepared and presented before the learned Trial Court.
3. Learned Trial Court charged the accused with the .
commission of an offence punishable under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined ten witnesses to prove its of case. HHC Deepak Raj (PW1) proved the entry in the daily diary.
HC Gopal Chand (PW2) was working as MHC. HC Prakash Chand rt (PW3) was the Reader to SDPO, Sarkaghat. Malik Chand (PW3) carried the special report to SDPO, Sarkaghat. Constable Vikram Singh (PW5) carried the case property to FSL, Junga. HC Ajay Kumar (PW6), SI Rajesh Kumar (PW7) and SI Govind Pal (PW8) are the eyewitnesses. SI Ranjeet (PW9) signed the FIR. Amar Singh (PW10) effected the recovery of charas and investigated the matter.
5. The accused, in his statement recorded under Section 313 of Cr.PC denied the prosecution's case in its entirety. He stated that a false case was made against him, and he was innocent. He did not produce any evidence in defence.
6. Learned Trial Court held that the statements of official witnesses corroborated each other. Non-association of ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 6 2025:HHC:39599 independent witnesses was not significant. Failure to produce the seal before the Court was not material. The integrity of the case property was established. The report of the analysis showed .
that the sample analysed was an extract of cannabis. The special report was sent to the SDPO on 15.11.2024. Therefore, the learned Trial Court convicted and sentenced the accused as aforesaid.
of
7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, rt asserting that the learned Trial Court failed to appreciate the material on record. It was wrongly held that the prosecution had proved its case beyond a reasonable doubt. The prosecution's story was full of contradictions. The onus to prove the case was upon the prosecution. The official witnesses contradicted each other, but the contradictions were overlooked by the learned Trial Court. No independent witness was associated. The place of nakka was a bus road, and it was possible to join an independent witness. The Investigating Officer admitted that he had not sent any person to call the independent witness, which made the whole of the prosecution case suspect. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
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8. I have heard Ms Prajwal Busta, Advocate, learned Legal Aid Counsel for the appellant, and Mr Prashant Sen, learned Deputy Advocate General, for the respondent-State.
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9. Ms Prajwal Busta, Advocate, learned Legal Aid Counsel for the appellant/accused, submitted that the prosecution's case is highly doubtful. No independent witness of was associated. The Investigating Officer admitted that he had not sent any police official to call the independent witnesses.
rt There were major contradictions in the statements of official witnesses. Requirements of Section 52A of the NDPS Act were not complied with. The sample seal was not produced before the Court, which made the integrity of the prosecution's case highly suspect. Therefore, she 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 police party had set up a naka at Gallu. The police signalled the accused to stop the vehicle, but he fled away from the spot. He was apprehended at a lonely place, and it was not possible to join any independent witness. Learned Trial Court had rightly held that the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 8 2025:HHC:39599 testimonies of police officials could not be discarded because of failure to join independent witnesses. Nothing was suggested in the cross-examination of the police officials to show that they .
had any motive to depose against the accused. The failure to produce the seal before the Court is not fatal. Therefore, he prayed that the present appeal be dismissed.
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11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. rt Amar Singh (PW10) stated that he, ASI Govind Pal, ASI Rajesh Kumar, Constable Ajay Kumar, HHC Manik Chand and HHG Parveen Kumar were checking the vehicles at Galu. A car bearing registration No. HP-01D-3589 came from Jogindernagar at 4.25 PM. The police signalled the driver to stop the car, but the driver sped away. The police chased the car and stopped it after about 150 mtrs. There was a pine forest at the place of the incident. The accused was driving the car. The police searched the car and recovered a bag containing a polythene bag. The police checked the polythene bag and found charas, which was weighed, and its weight was found to be 800 grams. The charas was packed in the same manner in which it was recovered and was put in a cloth parcel. The NCB-1 Form was filled in triplicate.
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 92025:HHC:39599 The seal impression was taken on a separate piece of cloth, and the seal was handed over to ASI Govind Pal (PW8) after its use.
The parcel, sample seals, NCB-1 Form and the vehicle bearing .
registration No. HP-01D-3589 were seized vide memo (Ex.P1/PW7). The personal search of the accused was conducted, but nothing incriminating was found in his possession. Rukka of (P11/PW10) was prepared and was handed over to Constable Ajay Kumar (PW6) with a direction to carry it to the Police Station. He rt identified the case property in the Court. He stated in his cross-
examination that the police party left the Police Station at 2.30 PM in a Government vehicle. They stopped on the way to the place of Nakka and reached the spot within 15 minutes. The place of Nakka was located at a distance of 5 kilometres. Galu was at a distance of 1.5 kilometres from Naka Point. All the police officials were checking the vehicles and were stopping the vehicles coming from either side. The accused did not try to run away from the spot. He was standing near the vehicle when it was checked. He had not sent any police official to search for any independent person. He denied that no recovery was effected, and a false case was made against the accused.
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13. Ajay Kumar (PW6) supported the prosecution's case in his examination-in-chief; hence, his examination-in-chief is not being reproduced to avoid prolixity and repetition. He stated .
in his cross-examination that the police started from the Police Station at about 2.30 PM. They went to Gallu in a Government vehicle. Galu is located at a distance of 05 kilometres from the of police station. No barricade was set up on the road. SHO was pointing at the vehicle, which was to be stopped for checking rt purposes. The road was National Highway. The vehicle was stopped after a distance of 200-300 mtrs. Police officials had not given their personal search to the accused. No option was given to the accused to be searched before a Magistrate or the Gazetted Officer. Papers were prepared on the spot. He left the spot with a rukka at 5.40 PM and reached the Police Station at about 6.05 PM. He left the Police Station at 6.40 PM and reached the spot at 6.55 PM. He denied that a false case was made against the accused.
14. Rajesh Kumar (PW7) also made a similar statement in his examination-in-chief as was made by ASI Amar Singh (PW10). Hence, his examination-in-chief is not being reproduced to avoid prolixity and repetition. He stated in his ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 11 2025:HHC:39599 cross-examination that they had left the Police Station at 2.30 PM in a Government vehicle. They did not stop on the way to Gallu. They reached Gallu after about half an hour. The Gallu was .
located at a distance of 6-7 kilometres. They had not laid any barricade on the spot. The police had checked 30-35 vehicles on the spot. He did not know who had signalled the accused to stop of the vehicle. The accused drove the vehicle fast. The police officials took some time to board the vehicle. SHO alighted from rt the police vehicle at the spot, and thereafter, all the police officials came out of the vehicle. SHO searched the vehicle, and the police party joined him. No personal search was given to the accused. No option of being searched was given to the accused.
The Investigating Officer did not send any police official to Gallu to join any independent witnesses. The seizure memo was prepared first. He denied that no recovery was effected from the accused, and he was falsely implicated.
15. SI Govind Pal (PW8) supported the prosecution case in his examination-in-chief. He stated in his cross-examination that they had left the Police Station at about 2.30 PM in a Government vehicle. They reached the spot at about 3-3.15 PM.
They did not stop on the way to the spot. The distance from the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 12 2025:HHC:39599 Police Station to the spot was 7-8 kilometres. No barricade was put on the spot, and they were signalling the drivers to stop the vehicle. The police team had checked 30-35 vehicles. The accused .
drove his vehicle fast, and it took about a few seconds for the police party to catch up to the vehicle. SHO got out of the vehicle, and the other persons got out of the vehicle after SHO. Naka was of set up towards Hara Bag. There were 3-4 shops at Gallu. The police did not conduct a personal search of the accused. No rt option under Section 50 of the NDPS Act was given to the accused. There was a Forest Plants Nursery near the spot where the workers were present. He volunteered to say that no one was present on the date of the incident. It took about 2.5/3 hours to complete the proceedings. The memo was prepared first. He denied that the accused had sped away from the spot, and a false case was made against him.
16. It was submitted that the Investigating Officer had not sent any police official to call any person from Gallu, which is fatal to the prosecution's case. This submission will not help the accused. The statements of witnesses show that the police party had set up a nakka and were checking the vehicles. They signalled the accused to stop the vehicle, but the accused fled ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 13 2025:HHC:39599 away from the spot, and the police followed his vehicle. There is nothing in the statement of the official witnesses to show that they had any prior information regarding the transportation of .
the charas. Hence, it was a case of chance recovery.
17. The term 'chance recovery' was explained by the Hon'ble Supreme Court in the State of H.P. v. Sunil Kumar, (2014) of 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 rt 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 SorabkhanGandhkhan 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 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.
rt
18. In the present case also, the police also 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.
19. 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 against the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 15 2025:HHC:39599 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."
20. In similar circumstances, it was laid down by this of court in Chet Ram Vs State, Criminal Appeal no. 151/2006, decided on 25.7.2018, that when the accused was apprehended after he rt 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 was nothing left to be witnessed.
It is by now well settled that non-association of independent witnesses or non-support of the prosecution version by independent witnesses where they are associated, by itself, is not a ground to acquit an accused. It is also well-settled that the testimony of official witnesses, including police officials, carries the same evidentiary value as the testimony of any other person. The only difference is that Courts have to be more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 16 2025:HHC:39599 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)
21. It was laid down by the Hon'ble Supreme Court of 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 rt 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."
22. 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 17 2025:HHC:39599 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's 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 of 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 rt 521: (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State, also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because the prosecution did not examine any independent witness would not necessarily lead to a conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it was held as under: (SCC p. 655) 'It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust in the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 18 2025:HHC:39599 principle of presumption and recognised even by the legislature."
23. 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 of 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 rt 3(iii)(d). It is by now well settled that a prosecution case cannot be disbelieved only because the independent witnesses were not associated."
24. This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it was held at page 204: -
"17. The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two courts, has also been dealt with by this Court in Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563: (2020) 1 SCC (Cri) 767] holding that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was falsely implicated. Therefore, the said issue is also well settled and in particular, looking at the facts of the present case, when the conduct of the accused was found suspicious, and a chance recovery from the vehicle used by him is made from a public place and proved beyond a reasonable doubt, the appellant cannot avail any benefit on this issue. In our view, the concurrent findings of the courts do not call for interference."::: Downloaded on - 05/12/2025 22:54:56 :::CIS 19
2025:HHC:39599
25. 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-support 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 of 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, rt 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, 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 20 2025:HHC:39599 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 of place of 'nakka'. These, however, are not mandatory conditions and will always depend rt 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."
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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."
26. 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.
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27. It was submitted that no option to be searched before a Magistrate or the Gazetted Officer was given. All the witnesses admitted this fact. This submission will also not help the accused.
.
In the present case, the recovery was effected from the 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 of Singh & another, (2019) 10 SCC 473, that where the recovery was effected from the bag, briefcase, etc., non-compliance with rt Section 50 of the NDPS Act 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 22 2025:HHC:39599 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 person only. Secondly, the section speaks of taking 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 of 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) rt "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 [(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.
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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 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 of for want of compliance with 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 rt 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 24 2025:HHC:39599 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 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 of 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 rt 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 25 2025:HHC:39599 on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get 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 of 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."
rt
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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 26 2025:HHC:39599 took the view that if the bag carried by the accused is searched and his person is also 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 of 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).
rt 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. It was submitted that the police officials had not given their personal search to the accused, and this made the prosecution's case suspect. This submission cannot be accepted.
The police had recovered 800 grams of cannabis, which could not have been concealed by the police officials. Nothing was suggested to the witnesses that the police had seized the charas ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 27 2025:HHC:39599 in some other case, took it to the spot and planted it in the vehicle of the accused. The accused also did not take any such defence. No motive was suggested to the police officials to do so.
.
Therefore, the fact that the police officials had not given their personal search to the accused would not be material in the present case.
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33. SI Rajesh Kumar (PW7) stated that the distance from the Police Station to the spot was about 6-7 kilometres. SI rt Govind Pal (PW8) stated that the distance from the Police Station to the spot was 7-8 kilometres. Amar Singh (PW10) stated that the distance from the Police Station to the spot was about 5 kilometres. It was submitted that the witnesses had given different distances from the Police Station to the spot, which made their testimonies highly suspect. This submission cannot be accepted. Nobody measures the distances with the help of a scale, and when asked about the distance, they give their estimate, which may or may not be correct depending on the sense of distance between various persons. Further, the incident occurred on 13.11.2014. Ajay Kumar (PW6) made the statement on 28.11.2019, and Amar Singh (PW10) made the statement on 18.11.2022. Thus, a considerable period had elapsed since the date ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 28 2025:HHC:39599 of apprehension of the accused and the date of the deposition.
The contradictions were bound to come with time due to failure to remember the facts identically and different powers of .
observation. These contradictions cannot be used to discard the prosecution's case unless they affect the core of the prosecution's case, namely, the recovery.
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34. Hon'ble Supreme Court held in Rajan v. State of Haryana, 2025 SCC OnLine SC 1952, that the discrepancies in the rt statements of the witnesses are not sufficient to discard the prosecution case unless they shake the core of the testimonies. It was observed: -
"32. The appreciation of ocular evidence is a hard task. There is no fixed or straitjacket formula for the appreciation of the ocular evidence. The judicially evolved principles for the appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 29 2025:HHC:39599 general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence .
on the ground of minor variations or infirmities in the matter of trivial details.
III. When an eye-witness is examined at length, it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so of incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper hyper-technical approach by rt taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer, not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.
VII. Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 30 2025:HHC:39599 person's mind, whereas it might go unnoticed on the part of another.
IX. By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main .
purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people of to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals, which varies from person to person. rt XI. Ordinarily, a witness cannot be expected to recall accurately the sequence of events that take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and, out of nervousness, mix up facts, get confused regarding the sequence of events, or fill in details from imagination on the spur of the moment. The subconscious mind of the witness sometimes operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement, though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to a contradiction. Unless the former statement has the potency to discredit the latter statement, even if the latter statement is at variance with the former to some extent, it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217: 1983 Cri LJ 1096: (AIR 1983 SC 753) Leela Ram v. State of Haryana (1999) 9 SCC ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 31 2025:HHC:39599 525: AIR 1999 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)"
35. In the present case, the discrepancy regarding the distance is a minor contradiction that was bound to arise with .
time and cannot be used to discard the prosecution's case.
36. SI Govind Pal (PW8) stated that they reached the spot at about 3-3.15 AM. Amar Singh (PW10) stated that they left the of Police Station at 2.30 PM and reached the spot within 15 minutes.
It was submitted that there is a discrepancy regarding the time, rt which made the prosecution's case suspect. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 that people make their estimates by guesswork regarding the time on the spur of the moment, and one cannot expect people to make very precise or reliable estimates in such matters. It was observed:-
"(5) In regard to the exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters.
Again, it depends on the time sense of individuals, which varies from person to person."
37. Therefore, the testimonies of the witnesses cannot be discarded because of a discrepancy in the time; such a ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 32 2025:HHC:39599 discrepancy is bound to come because of the different time sense of individuals.
38. The police officials deposed consistently about the .
interception of the vehicle being driven by the accused and recovery of 'charas' from the bag vehicle. Nothing was suggested to the police officials to show that they had any motive to depose of 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 rt Cri.L.J.4254 that the testimonies of the police officials cannot be discarded on the ground that they belong to the police force. It was observed:
"11. It is a settled proposition of law that the sole testimony of the police official, which, if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. There is also no rule of law that 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 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's case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force."::: Downloaded on - 05/12/2025 22:54:56 :::CIS 33
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39. 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 of depend upon the facts and circumstances of each case, and no principle of general application can be laid down."
(Emphasis supplied) rt
40. This position was reiterated in Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, wherein it was observed:
22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy, then basing the conviction thereupon cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi) 2013 (6) SCC 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 its 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 34 2025:HHC:39599 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 of 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 rt the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."
24. We must note that in the former it was observed: --
"21... At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around.
That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature... If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."::: Downloaded on - 05/12/2025 22:54:56 :::CIS 35
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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 of 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 rt 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."
41. 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 36 2025:HHC:39599 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 of not be forgotten that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's rt conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in the appraisal of evidence is erroneous, contrary to well-
established principles of law or unreasonable.
29. .........................................
30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75 IA 252: AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated [Quoting from Watt v. Thomas, [1947] 1 All ER 582, pp. 583 H-584 A.]: (IA p. 255) "...but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 37 2025:HHC:39599 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 of having the witnesses before him and observing how their evidence is given."
42. Therefore, the learned Trial Court had rightly relied rt upon the testimonies of the police officials.
43. It was submitted that the case property was not resealed, and this is fatal to the prosecution's case. This submission cannot be accepted. 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 are not mandatory but directory and the accused cannot be acquitted because of non-compliance of Section 55 of NDPS Act. 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 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.::: Downloaded on - 05/12/2025 22:54:56 :::CIS 38
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44. Therefore, the prosecution cannot be doubted because the case property was not resealed.
45. It was submitted that the seal was not produced .
before the Court, which 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 of 73: 2002 Cri LJ 4600 that there is no requirement to produce the seal before the Court. It was observed at page 4614:
rt "62. It is a fact that the seals used for sealing and re-
sealing the bulk case property, and the samples have not been produced at the trial. In Manjit Singh's case (2001 (2) Cri LJ (CCR) 74) (supra), while dealing with the effect of non-production of the seal, this Court held as under:
In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether, by non-
production of the seal at the trial, any doubt is raised about the safe custody of the case property or not."
63. In view of the above position in law and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the non-
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."
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 392025:HHC:39599
46. 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 of 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 rt 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 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."
47. 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.
48. In the present case, the sample seal (Ex. P2/PW7) was produced before the Court; NCB-1 Form (Ex. P10/PW10) also bears the sample seal. Therefore, the Court had the sample seal to ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 40 2025:HHC:39599 compare the seals. The Court noticed while recording the statement of SI Rajesh Kumar (PW7) that the cloth parcel was bearing 6 seals of letter 'R' and three seals of FSL-II. Therefore, .
the learned Trial Court had satisfied itself regarding the correctness of the seal impression and failure to produce the seal is not material.
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49. The result of analysis (Ex 14/PW10) mentions that the parcel was sealed with six seals of seal 'R'. The seals were found rt intact and tallied with the specimen seal sent by the forwarding authority and seal impression impressed on the Form NCB-1.
This report establishes the integrity of the case property. It was held in Baljit Sharma vs. State of H.P. 2007 HLJ 707, that where the report of analysis shows that the seals were intact, the case of the prosecution that the case property remained intact is to be accepted as correct. It was observed:
"A perusal of the report of the expert Ex.PW8/A shows that the samples were received by the expert in a safe manner, and the sample seal 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."
50. Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held:
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 412025:HHC:39599 "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."
of
51. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402, the High Court had concluded that there could have been rt tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon'ble Supreme Court that the case property was produced in the Court, and there was no evidence of tampering. Seals were found to be intact, which would rule out the possibility of tampering. It was observed:
"The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom, which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 42 2025:HHC:39599 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 of 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 rt 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."
52. 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.::: Downloaded on - 05/12/2025 22:54:56 :::CIS 43
2025:HHC:39599 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 of 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 rt evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete."
(Emphasis supplied)
53. Therefore, the integrity of the case property is duly established in the present case.
54. The report of analysis shows that the actual weight of the exhibit was 796.0 grams, and it was a sample of charas.
Therefore, the learned Trial Court had rightly held that the accused was found in possession of the charas and had rightly convicted the accused of the commission of an offence punishable under Section 20(b)(ii)(b).
55. It was submitted that there is a violation of the provisions of Section 52-A of the NDPS Act, which is mandatory.
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 442025:HHC:39599 This submission will not help the accused. A perusal of the impugned judgment shows that no samples were drawn in the present case, and the whole bulk was sent to FSL. It was laid .
down by this Court in Narayan Singh v. State of H.P. 2023 HHC 9715 that the provisions of Section 52-A of the NDPS Act will not apply when the samples were not drawn and the entire contraband was of sent to the FSL for analysis. It was observed:-
19. After going through the aforesaid judgments, we are of the considered view that the same does not apply to the rt facts of the instant case. It would be noticed that in all the earlier judgments, the Hon'ble Court was dealing with cases where samples had been drawn from the bulk and then samples had been sent for chemical analysis, and the residue or bulk sample remained with the investigating agency. However, this is not the fact of the obtaining situation in the instant case. Here, the entire contraband had been sent for chemical analysis, that to be done on the very next date of its recovery. In such circumstances, there could be no better and primary evidence for the purpose of the trial.
56. Similarly, it was laid down in Sandeep Kumar Vs State of H.P., 2022 Law Suits (HP) 149, that the provisions of Section 52-A are not mandatory and non-compliance with Section 52-A is not fatal to the prosecution case. It was observed:-
"24. It has also been strenuously argued on behalf of the appellants that the investigating agency had failed to comply with the provisions of Section 52-A of the NDPS Act and thus cast a shadow of doubt on its story. The contention raised on behalf of the appellants is that the ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 45 2025:HHC:39599 rules framed for investigations under the NDPS Act are mandatory and have to be strictly followed. Neither the required sample was taken on the spot nor were the samples preserved by complying with Section 52-A of the Act. It has been argued that compliance with Section 52-A .
of the Act is mandatory.....
xxxxxx
27. The precedent relied upon on behalf of the appellants, however, did not lay down the law that non-compliance with Section 52-A of the Act is fatal to the prosecution's case under the NDPS Act. On the other hand, in State of of Punjab vs. Makhan Chand, 2004 (3) SCC 453, the Hon'ble Supreme Court, while dealing with the question of the effect of non-compliance of Section 52-A, has held as under: -
rt
10. This contention, too, has no substance for two reasons. Firstly, Section 52A, as the marginal note indicates, deals with the "disposal of seized narcotic drugs and psychotropic substances". Under Sub-
section (1), the Central Government, by notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in Sub-sections (2) & (3). If the procedure prescribed in Sub- sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by Subsection (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub-section (2) of Section 52A as certified by the Magistrate, would be treated as ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 46 2025:HHC:39599 primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for the search of an accused but only deals with the disposal of seized narcotic drugs and psychotropic .
substances.
11. Secondly, when the very same standing orders came up for consideration in Khet Singh v. Union of India, 2002 (4) SCC 380, this Court took the view that they were merely intended to guide the officers to see that a fair procedure is adopted by the Officer-
of in-Charge of the investigation. It was also held that they were not inexorable rules, as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the rt spot if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention."
57. It was laid down in Bharat Aambale v. State of Chhattisgarh, 2025 SCC OnLine SC 110, that non-compliance with Section 52-A of the ND&PS Act does not vitiate the trial. It was observed:
"50. We summarise our conclusion as under:--
(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate.
Mere drawing of samples in the presence of a ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 47 2025:HHC:39599 gazetted officer would not constitute sufficient compliance with the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although there is no mandate that the drawing of samples from the seized substance must take .
place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the of very spot of seizure.
(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the rt NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in the original is actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in charge of the investigation, and as such, what is required is substantial compliance with the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully, keeping in mind the procedural lapses.
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 482025:HHC:39599 (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as well as conscious possession of the contraband from the accused persons, then even in .
such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the of court to draw an adverse inference against the prosecution; however, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and rt circumstances of each case.
(VIII) Where there has been a lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Actor the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non- compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-
::: Downloaded on - 05/12/2025 22:54:56 :::CIS 492025:HHC:39599 compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.
58. Therefore, the non-compliance of Section 52-A of the .
NDPS Act will not make any difference to the present case.
59. Learned Trial court sentenced the accused to undergo rigorous imprisonment for a period of four years and pay a fine of of ₹25,000/-. A perusal of the notification issued by the Central Government shows that 100 grams of charas is a small quantity, rt 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 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 50 2025:HHC:39599 (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 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, of 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 rt 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 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 ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 51 2025:HHC:39599 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 of 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." rt (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 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.
60. If the principle of proportionality is applied to the present case, the person possessing 796 grams of charas would be liable for imprisonment for eight years and pay a fine of ::: Downloaded on - 05/12/2025 22:54:56 :::CIS 52 2025:HHC:39599 ₹80,000/-, whereas the learned Trial Court had sentenced the accused to undergo simple imprisonment of four years and pay a fine of ₹25,000/-. Hence, the sentence imposed by the learned .
Trial Court is lenient, and no interference is required with it.
61. No other point was urged.
62. In view of the above, the present appeal fails and it is of dismissed, so also the pending miscellaneous application(s), if any. rt
63. Records of the learned Trial Court be sent back forthwith along with copy of the judgment.
(Rakesh Kainthla) Judge 22nd November, 2025 (Chander) ::: Downloaded on - 05/12/2025 22:54:56 :::CIS