Gian Chand vs State Of H.P on 1 July, 2025

[Cites 44, Cited by 0]

Himachal Pradesh High Court

Gian Chand vs State Of H.P on 1 July, 2025

Neutral Citation No. ( 2025:HHC:20630 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 499 of 2023

.
Reserved on: 17.06.2025

Date of Decision: 01.07.2025

Gian Chand ...Appellant

Versus

State of H.P.

Coram
r to ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No

For the Appellant : Mr. Sunil Kumar Banyal, Advocate.
For the Respondent : Mr. Jitender K. Sharma, Additional
Advocate General.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment of

conviction dated 25.09.2023 and order of sentence dated

26.09.2023 passed by learned Special Judge, Sundernagar, District

Mandi, HP (learned Trial Court) vide which the appellant

(accused before the learned Trial Court) was convicted of

commission of an offence punishable under Section 20 of

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS

Act') and was sentenced to undergo rigorous imprisonment for

.
five years, pay a fine of ₹ 50,000/- and in default of payment of

fine to undergo further rigorous imprisonment for six months for

the commission of aforesaid offence. (Parties shall hereinafter be

referred to in the same manner as they were arrayed before the

learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan against the accused

before the learned Trial Court for the commission of an offence

punishable under Section 20 of the NDPS Act. It was asserted that

SI/SHO Bheem Sen (PW11), HC-Vinod Kumar, HHC-Deepak Raj

(PW3), HHC-Khem Raj (PW4), Constable-Suresh Kumar (PW10)

were going towards Naulakha in their official vehicle bearing

registration No.HP-31-B-0190, via Dhanotu on 23.01.2016. When

they reached near Sananghat at about 5:00 PM, they saw the

accused, carrying a backpack on his right shoulder, coming

towards the Sundernagar Bus Stand. He returned after seeing the

police vehicle and started walking briskly. SI/SHO Bheem Sen

became suspicious that the accused might be carrying some

stolen articles. He asked the driver to stop the vehicle and

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apprehended the accused. The place was lonely and deserted, and

no independent witness was available; hence, HHC Deepak Raj

.
and Constable Suresh Kumar were associated as witnesses. The

accused revealed his name as Gian Chand on inquiry. The police

checked the backpack and found a packet wrapped with a

cellotape concealed between the clothes. The police checked the

packet and found charas in it. The charas was weighed and its

weight was found to be 340 grams. The charas was put in the

packet. The packet was wrapped with cello tape in the same

manner in which it was recovered. Cello tape was put in a cloth

parcel, and the parcel was sealed with six impressions of seal 'T'.

The parcel was marked as 'A1'. The backpack contained one t-

shirt and one towel. These were put in the backpack. The

backpack was put in a cloth parcel and the parcel was sealed with

eight impressions of the seal 'T'. The parcel was marked as 'A2'.

The NCB-1 form (Ext. P9/PW8) was filled in triplicate. The seal

impression was put on the NCB-I form. Specimen seal impression

(Ex. P3/PW3) was taken on a separate piece of cloth, and the seal

was handed over to HHC-Deepak Raj after its use. The

photographs of the proceedings (Ex. P11/PW11 to Ex.P16/PW11)

were taken. The parcels (A-1 and A-2), NCB-I form and sample

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seal were seized vide memo (Ex. P4/PW3). Ruqa (Ex.P17/PW11)

was prepared, and it was sent to the police station, where FIR

.
(Ex.P10/PW10) was registered. SI/SHO Bheem Sen conducted the

investigation. He prepared the spot map (Ex.P18/PW11) as per the

spot position and recorded the statement of witnesses, as per

their version. He handed over the case property to MHC-Gopal

Singh (PW8), who made an entry at Sr. No.142 (Ex.PW9/PW8) in

the Malkhana Register and kept the case property at Malkhana.

He handed over the cloth parcel, sealed with six seals of seal

impression 'T', NCB-I Form in triplicate, sample seal 'T', copy of

FIR and seizure memo to HHC/Hardev Singh (PW7) with a

direction to carry them to FSL, Junga vide RC No.7/16

(Ex.P8/PW7). HHC-Hardev Singh deposited the case property in

the FSL Junga and handed over the receipt to MHC-Gopal Singh

on his return. Bheem Sen (PW11) prepared the special report

(Ex.P1/PW1) and handed it over to Constable-Samad Akhtar on

24.01.2016 with a direction to hand it over to Sub-Divisional

Police Officer (SDPO), Sundernagar. He handed over the Special

Report (Ex. P1/PW1) to Kulbhushan Verma (PW2) on 24.01.2016,

at 6:00 PM. Kulbhushan Verma made the endorsement on the

special report and handed it over to his Reader-Sant Ram (PW1),

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on the next day. Sant Ram made an entry in the Special Report

.
The result of the analysis (Ex. P19/PW11) was issued, stating that

the exhibit was an extract of cannabis and a sample of charas.

The statements of witnesses were recorded, as per their version

and after the completion of the investigation, the 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 the accused pleaded not guilty and claimed to

be tried.

4. The prosecution examined 11 witnesses to prove its

case. HASI-Sant Ram (PW1) was posted as Assistant Reader to

Kulbhushan Verma (PW2), SDPO Sundernagar, to whom the

Special Report was handed over. Deepak Raj (PW3), Khem Raj

(PW4) and Suresh Kumar (PW10) are the witnesses to the

recovery. Constable Sudeep Jamwal (PW5) proved the entry in the

daily diary. HC-Samad Akhtar (PW6) carried the special report to

SDPO Sundernagar. HASI-Hardev Singh (PW7) carried the case

property to FSL Junga. Gopal Singh (PW8) was working as MHC,

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with whom the case property was deposited. ASI Satya Prakash

(PW9) proved the FIR. Bheem Sen (PW11) conducted the

.
investigation.

5. The accused in his statement recorded under Section

313 of Cr.P.C. denied the prosecution's case in its entirety. He

claimed that he was innocent; however, he did not lead any

defence evidence.

6. The learned Trial Court held that the testimonies of

the Police Officials corroborated each other. There was no

material contradiction in the testimonies of police officials. The

minor contradictions in the statements were not sufficient to

discard the prosecution's case, since the witnesses were

examined after a lapse of 6 years from the date of the incident.

The recovery was effected from the backpack, and there was no

requirement to comply with the provisions of Section 50 of the

NDPS Act. The accused failed to provide any reason why the

police should have falsely implicated him. The integrity of the

case property was established. It was confirmed to be charas after

the analysis; therefore, the accused was convicted and sentenced

as aforesaid.

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7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused filed the present appeal,

.
asserting that the learned Trial Court erred in appreciating the

evidence. The Investigating Officer failed to comply with the

requirements of Sections 41, 42, 43 and 50 of the NDPS Act.

Deepak Raj (PW3) specifically stated that the Investigating Officer

did not make any effort to call the independent person. This was

corroborated by HC-Khem Raj (PW4) and by Bheem Sen (PW11).

The witnesses stated that the Charas was recovered in the shape

of a ball, whereas the report of analysis shows that the charas was

in the shape of balls. The statements of prosecution witnesses

contradicted each other regarding the preparation of the

documents. Therefore, it was prayed that the present appeal be

allowed and the judgment and order passed by the learned Trial

Court be set aside.

8. I have heard Mr. Sunil Kumar Banyal, learned counsel

for the appellant and Mr. Jitender K. Sharma, learned Additional

Advocate General for the respondent/State.

9. Mr. Sunil Kumar Banyal, learned counsel for the

appellant/accused, submitted that the learned Trial Court erred in

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convicting and sentencing the accused. There were various

contradictions in the statements of the prosecution witnesses,

.
which were ignored by the learned Trial Court. No effort was

made to join any independent person, which makes the

prosecution's case highly suspect. The charas was stated to be in

the form of a ball, whereas the report of analysis shows that the

balls were analysed. Therefore, the case property is not

connected to the appellant.
r The prosecution failed to comply

with the requirements of Sections 42 and 50 of the NDPS Act,

which are mandatory. The case property was not resealed, and

there is a violation of Section 55 of the NDPS Act. The police did

not make any effort to join the independent witnesses, which

made the recovery doubtful; therefore, he prayed that the present

appeal be allowed and the judgment and order passed by the

learned Trial Court be set aside. He relied upon the judgment of

this Court in the State of HP Vs. Prem Bahadur Rawat,

2024:HHC:5946, in support of his submission.

10. Mr. Jitender Sharma, learned Additional Advocate

General for the respondent/State submitted that the incident

occurred in the year 2016, and the witnesses deposed before the

Court in the year 2022. Thus, there was a gap of nearly 6 years

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between the incident and the examination of the witnesses. The

minor contradictions are bound to come in the statements due to

.
the lapse of time. The statements of prosecution witnesses should

not be discarded simply because they are police officials. It was a

case of chance recovery, and it was not possible to associate

independent witnesses. Learned Trial Court had rightly

appreciated the evidence; therefore, he prayed that the present

appeal be dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. HASI-Deepak Raj (PW3) admitted in his cross-

examination that the Investigating Officer did not make any

effort to call an independent witness, nor was any police official

sent in search of independent witnesses. Similarly, HHC-Khem

Raj (PW4) stated in his cross-examination that the Investigating

Officer did not send any police official in search of independent

witnesses. Suresh Kumar (PW10) stated in his cross-examination

that he was not aware whether the Investigating Officer had sent

any police official in search of an independent witness. Bheem

Sen (PW11) admitted in his cross-examination that he had not

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sent any police official in search of the independent witnesses. It

was submitted that failure to join independent witnesses is fatal,

.
and the prosecution's case is to be discarded due to the failure to

join independent witnesses. This submission is not acceptable.

The statements of the prosecution witnesses show that the police

party proceeded in the vehicle when they noticed the accused

carrying the backpack on his shoulder. He returned after seeing

the police and started walking briskly. This led to the suspicion;

hence, it was a case of chance recovery.

13. The term chance recovery was explained by the

Hon'ble Supreme Court in State of H.P. v. Sunil Kumar, (2014) 4

SCC 780: (2014) 2 SCC (Cri) 449: 2014 SCC OnLine SC 205, and it was

held that chance recovery means a recovery made by chance or by

accident or unexpectedly. When the police were not looking for

the drugs nor expected to find the drugs, any recovery is a chance

recovery. A positive suspicion of the police official is not

sufficient to show that it was not a case of 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:

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1999 SCC (Cri) 79], this Court considered a chance recovery
as one when a police officer "stumbles on" narcotic drugs
when he makes a search. In Sorabkhan Gandhkhan

.
Pathan v. State of Gujarat [(2004) 13 SCC 608: (2006) 1 SCC

(Cri) 508], the police officer, while searching for illicit
liquor, accidentally found some charas. This was treated as
a "chance recovery".

14. Applying this to the facts of the present appeal, it is
clear that the police officers were looking for passengers
who were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried by

a passenger. This can only be described as a recovery by
chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.

15. It is not possible to accept the view of the High Court
that since the police officers conducted a random search

and had a "positive suspicion" that Sunil Kumar was
carrying contraband, the recovery of charas from his
person was not a chance recovery. The recovery of

contraband may not have been unexpected, but the
recovery of charas certainly was unexpected,
notwithstanding the submission that drugs are easily

available in the Chamba area. The police officers had no
reason to believe that Sunil Kumar was carrying any drugs,

and indeed that is also not the case set up in this appeal. It
was plainly a chance or accidental, or unexpected recovery
of charas--Sunil Kumar could well have been carrying any

other contraband, such as smuggled gold, stolen property
or an illegal firearm or even some other drug.

14. In the present case, the police had no prior

information about the transportation of charas by the accused.

They became suspicious of the conduct of the accused, and the

present case will fall within the meaning of chance recovery.

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15. 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

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 version."

16. In similar circumstances, it was laid down by this

Court in Chet Ram Vs State Criminal Appeal no. 151/2006 decided on

25.7.2018 that when the accused was apprehended after he tried to

flee on seeing the police, there was no necessity to associate any

person from the nearby village. It was observed: -

"(A)appellant was intercepted, and a search of his bag was
conducted on suspicion, when he turned back and tried to
flee, on seeing the police. Police officials did not have any

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prior information, nor did they have any reason to believe
that he was carrying any contraband. They overpowered
him when he tried to run away and suspected that he might

.
be carrying some contraband in his bag. Therefore, the

bag was searched, and Charas was recovered. After the
recovery of Charas, there was hardly any need to associate any
person from the nearby village because there remained nothing

to be witnessed.
It is by now well settled that non-association of
independent witnesses or non-supporting of the
prosecution version by independent witnesses where they

are associated, by itself, is not a ground to acquit an
accused. It is also well-settled that the testimony of
official witnesses, including police officials, carries the
same evidentiary value as the testimony of any other

person. The only difference is that Courts have to be more

circumspect while appreciating the evidence of official
witnesses to rule out the possibility of false implication of
the accused, especially when such a plea is specifically
raised by the defence. Therefore, while scrutinising the

evidence of official witnesses, in a case where independent
witnesses are not associated, contradictions and
inconsistencies in the testimony of such witnesses are

required to be taken into account and given due weightage
unless satisfactorily explained. Of course, it is only the

material contradictions and not the trivial ones, which
assume significance." (Emphasis supplied)

17. It was laid down by the Hon'ble Supreme Court of

India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557: (2023) 2

SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-association of the

independent witnesses will not be fatal to the prosecution case.

However, the Court will have to scrutinise the statements of

prosecution witnesses carefully. It was observed at page 566:

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"(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."

18. This position was reiterated in Rizwan Khan v. State of

Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730, wherein it

was observed at page 633:

"12. It is settled law that the testimony of the official

witnesses cannot be rejected on the ground of non-
corroboration by independent witnesses. As observed and
held by this Court in a catena of decisions, examination of

independent witnesses is not an indispensable requirement
and such non-examination is not necessarily fatal to the
prosecution case [see Pardeep Kumar [State of

H.P. v. Pardeep Kumar, (2018) 13 SCC 808: (2019) 1 SCC (Cri)
420]].

13. In the recent decision in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563:
(2020) 1 SCC (Cri) 767], while considering somewhat similar

submission of non-examination of independent witnesses,
while dealing with the offence under the NDPS Act, in paras
15 and 16, this Court observed and held as under: (SCC p.
568)
"15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC
521: (2011) 1 SCC (Cri) 1191], relied on by the counsel
for the respondent State, also supports the case of the
prosecution. In the aforesaid judgment, this Court
has held that merely because the prosecution did not

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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
r 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."

19. 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 case
cannot be said to have been proved by it in accordance with
provisions of the Act. Learned defence counsel, in support
of his contention, relied upon the titled Krishan Chand
versus State of H.P.,2017 4 CriCC 531
3(iii)(d). It is by now well settled that a prosecution case
cannot be disbelieved only because the independent
witnesses were not associated."

20. This position was reiterated in Kallu Khan v. State of

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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."

21. A similar view was taken in Kehar Singh v. State of H.P.,

2024 SCC OnLine HP 2825, wherein it was observed:

16. As regards non-association of the independent

witnesses, it is now well settled that non-association of the
independent witnesses or non-supporting of the
prosecution version by independent witnesses itself is not a

ground for acquittal of the Appellants/accused. It is also
well-settled that the testimonies of the official witnesses,
including police officials, carry the same evidentiary value
as the testimony of any other person. The only difference is
that the Court has to be most circumspect while
appreciating the evidence of the official witnesses to rule
out the possibility of false implication of the accused,
especially when such a plea is specifically raised by the
defence. Therefore, while scrutinising the evidence of the
official witnesses, in cases where independent witnesses
are not associated, contradictions and inconsistencies in

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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

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, police
could have lost the opportunity to recover the

contraband. Looking from another angle, the
relevance of independent witnesses could be there
when such witnesses were immediately available or
had already been associated at the place of 'nakka'.
These, however, are not mandatory conditions and
will always depend on the factual situation of each
and every case. The reason is that once the person is
apprehended and is with the police, a subsequent
association of independent witnesses may not be of
much help. In such events, the manipulation, if any,
cannot be ruled out."

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Xxxx
22. A similar reiteration of law can be found in a very recent
judgment of the Coordinate Bench of this Court in Cr. A. No.

.
202 of 2020, titled Dillo Begum v. State of H.P., decided on

27.03.2024."

22. 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.

23. It was submitted that police did not comply with the

requirement of Section 42 of the NDPS Act, which is fatal to the

prosecution's case. This submission is not acceptable. The

accused was walking on the open road with the backpack, and

Section 42 of the NDPS Act does not apply to an open place but

only to a closed place. It was laid down by the Hon'ble Supreme

Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal

2018 (9) SCC 708, that Section 42 of the NDPS Act does not apply

to the search made of a person walking in an open space. It was

observed: -

"12. An empowered officer under Section 42(1) is obligated
to reduce to writing the information received by him, only

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when an offence punishable under the Act has been
committed in any building, conveyance or an enclosed
place, or when a document or an article is concealed in a

.
building, conveyance or an enclosed place. Compliance

with Section 42, including recording of information
received by the empowered officer, is not mandatory when
an offence punishable under the Act was not committed in

a building, conveyance or an enclosed place. Section 43 is
attracted in situations where the seizure and arrest are
conducted in a public place, which includes any public
conveyance, hotel, shop, or other place intended for use by,

or accessible to, the public.
13. The appellant was walking along Picnic Garden Road.
He was intercepted and detained immediately by the
raiding party in front of Falguni Club, which was not a

building, conveyance or an enclosed place. The place of

occurrence was accessible to the public and fell within the
ambit of the phrase "public place" in the explanation to
Section 43. Section 42 had no application."

24. It was submitted that the prosecution had not

complied with the requirement of Section 50 of the NDPS Act,

which vitiated the prosecution's case. This submission cannot be

accepted. It was laid down by the Hon'ble Supreme Court in

Ranjan Kumar Chadda Vs. State of H.P., 2023 SCC Online SC 1262,

that even if the personal search of the accused is conducted, but

no recovery is effected during the personal search, there is no

requirement to comply with the provisions of Section 50 of the

NDPS Act, when the recovery was effected from the bag. In the

present case, the recovery was effected from the backpack and

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not from the personal search. Therefore, even if the personal

search of the accused was conducted, that is not sufficient to

.
attract the provisions of Section 50 of the NDPS Act.

25. Deepak Raj (PW3), Khem Raj (PW4), Suresh Kumar

(PW10) and Bheem Sen (PW11) supported the prosecution's case

in their examination-in-chief. Nothing was suggested to these

witnesses that they had any enmity with the accused.

26. It was submitted that there are various contradictions

in the statement of the police officials, which made the

prosecution's case doubtful. The following contradictions were

highlighted:

I. Deepak Raj (PW3) stated in his cross-examination that

they proceeded from the Police Station at 4:40 PM
and reached Naresh Chowk within 5-10 minutes.

HHC-Suresh Kumar (PW10), on the other hand,
stated in his cross-examination that they reached
Dhanotu bridge at about 4:15 PM and Sananghat at
4:40 PM.

II. Deepak Raj stated in his cross-examination that the
accused was apprised of his legal right to be searched
before a Gazetted Officer or a Magistrate. His
personal search was also conducted on the spot, and

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the consent memo was witnessed by him and Sh.
Suresh Kumar. Suresh Kumar (PW10) stated in his
cross-examination that the personal search of the

accused was not conducted on the spot.

III. HASI-Deepak Raj (PW3) stated in his cross-

examination that the documents were prepared on the
bonnet of the vehicle. Suresh Kumar (PW10) stated
that the documents were prepared by the Investigating
Officer while sitting on the parapet.

27.

The learned Trial Court had rightly pointed out that

the incident had taken place on 23.01.2016 and the witnesses

made the statements in the year 2022, after the lapse of more

than 6 years from the incident. Therefore, the contradictions

were bound to come in the statements of the prosecution

witnesses due to the failure of memory with time, and mere

contradictions are not sufficient to make the prosecution's case

doubtful. It was laid down by the Hon'ble Supreme Court in

Goverdhan Vs. State of Chhattisgarh (2025) SCC Online SC 69 that

the discrepancies are not sufficient to discard the prosecution

case unless they are material. It was observed: -

"51. As we proceed to examine this crucial aspect, it may be
apposite to keep in mind certain observations made by this
Court relating to discrepancies in the account of
eyewitnesses.

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In Leela Ram (Dead) through Duli Chand v. State of
Haryana, (1999) 9 SCC 525, it was observed as follows:
"9. Be it noted that the High Court is within its

.
jurisdiction, being the first appellate court to

reappraise the evidence, but the discrepancies found
in the ocular account of two witnesses, unless they
are so vital, cannot affect the credibility of the

evidence of the witnesses. There are bound to be
some discrepancies between the narrations of
different witnesses when they speak on details, and
unless the contradictions are of a material

dimension, the same should not be used to jettison
the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical
niceties cannot be expected in criminal cases. Minor

embellishment, there may be, but variations by

reason therefore should not render the evidence of
eyewitnesses unbelievable. Trivial discrepancies
ought not to obliterate otherwise acceptable
evidence. In this context, reference may be made to

the decision of this Court in State of U.P. v. M.K.
Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In para
10 of the Report, this Court observed: (SCC pp. 514-

15)

'10. While appreciating the evidence of a
witness, the approach must be whether the
evidence of the witness, read as a whole,

appears to have a ring of truth. Once that
impression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is against
the general tenor of the evidence given by the
witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy
of belief. Minor discrepancies on trivial

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matters not touching the core of the case,
hypertechnical approach by taking sentences
torn out of context here or there from the

.
evidence, attaching importance to some

technical error committed by the investigating
officer not going to the root of the matter
would not ordinarily permit rejection of the

evidence as a whole. If the court before whom
the witness gives evidence had the opportunity
to form the opinion about the general tenor of
evidence given by the witness, the appellate

court which had not this benefit will have to
attach due weight to the appreciation of
evidence by the trial court and unless there are
reasons weighty and formidable it would not
r be proper to reject the evidence on the ground

of minor variations or infirmities in the matter
of trivial details. Even honest and truthful
witnesses may differ in some details unrelated
to the main incident because the power of

observation, retention and reproduction differ
with individuals.'
10. In a very recent decision in Rammi v. State of

M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26], this Court
observed: (SCC p. 656, para 24)

'24. When an eyewitness is examined at
length, it is quite possible for him to make

some discrepancies. No true witness can
escape from making some discrepant details.
Perhaps an untrue witness who is well tutored
can successfully make his testimony totally
non-discrepant. But courts should bear in
mind that it is only when discrepancies in the
evidence of a witness are so incompatible with
the credibility of his version that the court is
justified in jettisoning his evidence. But too
serious a view to be adopted on mere
variations falling in the narration of an

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incident (either as between the evidence of two
witnesses or as between two statements of the
same witness) is an unrealistic approach for

.
judicial scrutiny.'

This Court further observed: (SCC pp. 656-57, paras
25-27)
'25. It is a common practice in trial courts to

make out contradictions from the previous
statement of a witness for confronting him
during cross-examination. Merely because
there is an inconsistency in evidence, it is not

sufficient to impair the credit of the witness.
No doubt, Section 155 of the Evidence Act
provides scope for impeaching the credit of a
r witness by proof of an inconsistent former
statement. But a reading of the section would

indicate that all inconsistent statements are
not sufficient to impeach the credit of the
witness. The material portion of the section is

extracted below:
"155. Impeaching the credit of a witness.--
The credit of a witness may be impeached in

the following ways by the adverse party, or,
with the consent of the court, by the party

who calls him--
(1)-(2) ***

(3) by proof of former statements
inconsistent with any part of his evidence
which is liable to be contradicted;"
26. A former statement, though seemingly
inconsistent with the evidence, need not
necessarily be sufficient to amount to a
contradiction. Only such an inconsistent
statement, which is liable to be
"contradicted", would affect the credit of the
witness. Section 145 of the Evidence Act also
enables the cross-examiner to use any former

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statement of the witness, but it cautions that if
it is intended to "contradict" the witness, the
cross-examiner is enjoined to comply with the

.
formality prescribed therein. Section 162 of the

Code also permits the cross-examiner to use
the previous statement of the witness
(recorded under Section 161 of the Code) for

the only a limited purpose, i.e. to "contradict"
the witness.
27. To contradict a witness, therefore, must be
to discredit the particular version of the

witness. Unless the former statement has the
potency to discredit the present statement,
even if the latter is at variance with the former
to some extent, it would not be helpful to

contradict that witness (vide Tahsildar

Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri
LJ 1231])."
52. Further, this Court also cautioned about attaching too

much importance to minor discrepancies of the evidence of
the witnesses in Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat (1983) 3 SCC 217 as follows:

"5. ... We do not consider it appropriate or permissible
to enter upon a reappraisal or reappreciation of the

evidence in the context of the minor discrepancies
painstakingly highlighted by the learned counsel for the
appellant. Overmuch importance cannot be attached to

minor discrepancies. The reasons are obvious:
(1) By and large, a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a videotape is
replayed on the mental screen.
(2) Ordinarily, it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence, which so often has an
element of surprise. The mental faculties,

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therefore, cannot be expected to be attuned to
absorb the details.
(3) The powers of observation differ from person to

.
person. What one may notice, another may not.

An object or movement might emboss its image
on one person's mind, whereas it might go
unnoticed on the part of another.

(4) By and large, people cannot accurately recall a
conversation and reproduce the very words used
by them or heard by them. They can only recall
the main purport of the conversation. It is

unrealistic to expect a witness to be a human tape
recorder.
(5) In regard to the exact time of an incident or the

time duration of an occurrence, usually, people

make their estimates by guesswork on the spur of
the moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it

depends on the time sense of individuals, which
varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall

accurately the sequence of events which take

place in rapid succession or in a short time span. A
witness is liable to get confused or mixed up when
interrogated later on.

(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the
piercing cross-examination made by the counsel
and, out of nervousness, mix up facts, get
confused regarding the sequence of events, or fill
up details from imagination on the spur of the
moment. The subconscious mind of the witness
sometimes so operates on account of the fear of
looking foolish or being disbelieved, though the
witness is giving a truthful and honest account of
the occurrence witnessed by him--perhaps it is a

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sort of psychological defence mechanism
activated on the spur of the moment."
53. To the same effect, it was also observed

.
in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:

"13. ... The court, while appreciating the evidence,
must not attach undue importance to minor
discrepancies. The discrepancies which do not shake

the basic version of the prosecution's case may be
discarded. The discrepancies which are due to
normal errors of perception or observation should
not be given importance. The errors due to lapse of

memory may be given due allowance. The court, by
calling into aid its vast experience of men and
matters in different cases, must evaluate the entire

material on record by excluding the exaggerated
version given by any witness. When a doubt arises in

respect of certain facts alleged by such a witness, the
proper course is to ignore that fact only unless it
goes to the root of the matter to demolish the entire

prosecution story. The witnesses nowadays go on
adding embellishments to their version, perhaps for
fear that their testimony being rejected by the court.

The courts, however, should not disbelieve the
evidence of such witnesses altogether if they are

otherwise trustworthy. Jaganmohan Reddy, J.

speaking for this Court in Sohrab v. State of M.P. [(1972) 3 SCC 751: 1972 SCC (Cri) 819] observed:

[SCC p. 756, para 8: SCC (Cri) p. 824, para 8] '8. ... This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 28 Neutral Citation No. ( 2025:HHC:20630 ) incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny .

cannot be considered....'"

28. Hence, the testimonies of the witnesses have to be examined to determine whether the contradictions are real or apparent, material or minor.

29. The contradiction regarding the time is not material because no person remembers the time by looking at the watch.

This position was laid down in Bharwada Bhoginbhai (Supra).

Since different people have different perceptions of time, therefore, any discrepancy in the time cannot be used to discard the prosecution's case.

30. The contradiction regarding apprising the accused of his legal right to search is also not material because no recovery was effected from the personal search of the accused in the present case; therefore, this contradiction cannot be used to discard the prosecution's case.

31. The contradiction regarding the place where the documents were prepared is also not significant, keeping in view the time elapsed between the incident and the date of deposition.

Further, the accused never claimed that the documents were not ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 29 Neutral Citation No. ( 2025:HHC:20630 ) prepared on the spot, and these were prepared in the police station. He simply denied the prosecution's case; hence, the .

contradiction regarding the place of preparing the documents will not make the prosecution's case doubtful.

32. HHC-Khem Raj stated that the Investigating Officer prepared the documents in natural daylight till he remained on the spot. Bheem Sen (PW11) stated in his cross-examination that they remained on the spot for 2 hours and 15 minutes, and the documents were prepared in the daylight. It was submitted that the sun sets early in January, and it was not possible to prepare the documents in the daylight at about 7:00 PM. This submission is not acceptable. The witnesses consistently stated that the documents were prepared in natural daylight. The estimation of time given by the witnesses for remaining on the spot can be different, as noticed in Bharwada Bhoginbhai (supra), and will not make their statements doubtful. Further, there is no positive evidence as to when the sun had set on the date of the incident, and it is difficult to discard the positive statements of the police officials on the ground that the sun sets early in winter.

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33. The learned Trial Court found the testimonies of the prosecution witnesses credible. It was laid down by the Hon'ble .

Supreme Court in Goverdhan (supra) that the Appellate Court should not interfere with the findings regarding the credibility of the witnesses recorded by the learned Trial Court unless there is some illegality in it. It was observed: -

"83. The trial court, after recording the testimony of the PW-10, and on consideration of the same, found her evidence trustworthy and credible. We see no reason to question the assessment about the credibility of the witness by the Trial Court, which had the advantage of seeing and hearing the witness and all other witnesses. Nothing has been brought to our notice of any serious illegality or breach of fundamental law to warrant taking a different view of the evidence of PW-10.

In this regard, we may keep in mind the valuable observations made by this Court in Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497, in the following words:

"28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in the appraisal ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 31 Neutral Citation No. ( 2025:HHC:20630 ) of evidence is erroneous, contrary to well- established principles of law or unreasonable.

29. .........................................

.

30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75 IA 252: AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated [Quoting from Watt v. Thomas, [1947] 1 All ER 582, pp. 583 H-584 A.]: (IA p. 255) "... but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of the first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing how their evidence is given."

34. Nothing was shown in the cross-examination of the prosecution's witnesses to shake their credibility, and the finding of the learned Trial Court regarding the credibility of the witnesses is to be accepted as correct.

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35. Learned Trial Court had held that the testimonies of the police officials cannot be discarded simply because they .

happened to be police officials. The presumption that an official act is done regularly applies to the acts done by police officials as well. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri.L.J.4254 that the testimonies of the police officials cannot be discarded on the ground that they belong to the police force. It was observed:

"11. It is a settled proposition of law that the sole testimony of the police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer, even if such evidence is otherwise trustworthy. The rule of prudence may require more careful scrutiny of their evidence. Wherever the evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction, and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force."

36. 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, ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 33 Neutral Citation No. ( 2025:HHC:20630 ) and there is no principle of law that, without corroboration by independent witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies, .

as much in favour of police personnel as of other persons, and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case, and no principle of general application can be laid down." (Emphasis supplied)

37. This position was reiterated in Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, wherein it was observed:

22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy, then basing the conviction thereupon cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi) 2013 (6) SCC 588

13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48], State (Govt.

of NCT of Delhi) v. Sunil [(2001) 1 SCC 652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595: AIR 2013 SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large shows their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him, but it should not do so solely on the presumption ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 34 Neutral Citation No. ( 2025:HHC:20630 ) 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 weighs over .

the quantity of evidence.

23. Referring to State (Govt. of NCT of Delhi) v. Sunil 2001 (1) SCC 652, in Kulwinder Singh v. State of Punjab (2015) 6 SCC 674, this court held that: --

"23. ... That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record, the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."

24. We must note that in the former it was observed: --

"21... At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature... If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery.

But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi) 2023 SCC OnLine 784 had observed that the testimonies of police witnesses, as well as pointing out memos, do not stand vitiated due to the absence of independent witnesses.

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26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because .

independent witnesses were not examined. The correctness or authenticity is only to be doubted on "any good reason", which, quite apparently, is missing from the present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW-1 and PW-2, which the courts below have found absolutely to be inspiring in confidence. Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and confirmed by the High Court vide the impugned judgment, cannot be faulted with."

38. It was submitted that the case property was not produced before the learned Magistrate, which is violative of the mandatory provisions of Section 52A of the NDPS Act. This submission is not acceptable. It was laid down in Sandeep Kumar Vs State of H.P., 2022 Law Suits (HP) 149, that the provisions of Section 52-A of the NDPS Act is not mandatory and its non-

compliance is not fatal to the prosecution case. It was observed : -

"24. It has also been strenuously argued on behalf of the appellants that the investigating agency had failed to comply with the provisions of Section 52-A of the NDPS Act and thus cast a shadow of doubt on its story. The contention raised on behalf of the appellants is that the rules framed for investigations under the NDPS Act are mandatory and have to be strictly followed. Neither the required sample was taken on the spot, nor 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.....

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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 Punjab vs. Makhan Chand, 2004 (3) SCC 453, the Hon'ble Supreme Court, while dealing with the question of the effect of non-compliance of Section 52-A, has held as under: -

10. This contention, too, has no substance for two reasons. Firstly, Section 52A, as the marginal note indicates, deals with the "disposal of seized narcotic drugs and psychotropic substances". Under Sub-

section (1), the Central Government, by notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in Sub-sections (2) & (3). If the procedure prescribed in Sub-sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by Subsection (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub- section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for the search of an accused but only deals with the disposal of seized narcotic drugs and psychotropic substances.

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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 are merely .

intended to guide the officers to see that a fair procedure is adopted by the Officer-in-Charge of the investigation. It was also held that they were not inexorable rules, as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention."

39. Therefore, the prosecution's case cannot be discarded due to the non-compliance with the provisions of Section 52A of the NDPS Act.

40. It was submitted that the case property was not resealed, and this violated the mandatory provisions of Section 55 of the NDPS Act. This submission is not acceptable. The recovery was made by SHO Bheem Sen, and if he thought that, being an SHO, he was not supposed to comply with the requirement of Section 55 of the NDPS Act, he cannot be faulted. It was laid down by this Court in Prem Bahadur Vs State of H.P., 2009 (1) Shim. L.C. 65, that the provisions of Sections 52 and 55 of the NDPS Act are not mandatory and directory. When the Investigating Officer was the SHO and he had not resealed the case property, believing that, since he was the SHO and there was no such requirement, it was not sufficient to acquit the accused. It was observed:-

::: Downloaded on - 01/07/2025 21:22:53 :::CIS

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compliance with the same, the accused cannot be acquitted. If there are sufficient reasons for non- compliance with the Sections, then also the accused cannot claim the benefit of acquittal under these provisions. At best, the Court may have to scrutinise the prosecution evidence with greater care and caution.

13. In the present case, the recovery of the Charas has been proved beyond a reasonable doubt. We cannot lose sight of the fact that the investigating officer, PW6, was also the SHO of the Police Station, Manali. He presumed that he was the charge of the police station and, therefore, the provisions of Sections 52 and 55 were not applicable to him. At best, it can be presumed that when he was the investigating officer, some other police officer must be deemed to be in charge of the police station. At best, we can presume that MHC Khem Chand (PW 2) was the in-charge of the police station. However, even if we presume that MHC Khem Chand (PW 2) was the in-charge of the police station, then the mere non-compliance of Sections 52 and 55 by not putting the seal on the sample would not by itself be a ground to acquit the accused."

41. Therefore, the prosecution cannot be doubted because the case property was not re-sealed by SHO Bhim Sen (PW11).

42. It was submitted that the seal was not produced before the Court, and the same is fatal to the prosecution's case. This submission is not acceptable. It was laid down by this Court in Fredrick George v. State of Himachal Pradesh, 2002 SCC OnLine HP ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 39 Neutral Citation No. ( 2025:HHC:20630 ) 73: 2002 Cri LJ 4600 that there is no requirement to produce the seal before the Court. It was observed at page 4614:

.

"62. It is a fact that the seals used for sealing and re- sealing the bulk case property and the samples have not been produced at the trial. In Manjit Singh's case (2001 (2) Cri LJ (CCR) 74) (supra), while dealing with the effect of non-production of the seal, this Court held as under: "In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether, by non-

production of the seal at the trial, any doubt is raised about the safe custody of the case property or not."

63. In view of the above position in law and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the non-

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."

43. It was laid down by the Hon'ble Supreme Court in Varinder Kumar Versus State of H.P. 2019 (3) SCALE 50 that failure to produce the seal in the Court is not fatal. It was observed:-

"6. We have considered the respective submissions. PW10 is stated to have received secret information at 2.45 P.M. on 31.03.1995. He immediately reduced it into writing and sent the same to PW8, Shri Jaipal Singh, Dy. S.P., C.I.D., Shimla. At 3.05 P.M., PW7, Head Constable Surender Kumar, stopped PW5, Naresh Kumar and another independent witness, Jeevan Kumar, travelling together, whereafter the ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 40 Neutral Citation No. ( 2025:HHC:20630 ) appellant was apprehended at 3.30 P.M. with two Gunny Bags on his Scooter, which contained varying quantities of 'charas'. PW8, Shri Jaipal Singh, Dy.S.P., C.I.D., Shimla, who .

had arrived by then, gave notice to the appellant and obtained his consent for carrying out the search. Two samples of 25 gms. Each were taken from the two Gunny Bags and sealed with the seal 'S' and given to PW5. PW2, Jaswinder Singh, the Malkhana Head Constable, resealed it with the seal 'P'. The conclusion of the Trial Court that the seal had not been produced in the Court is, therefore, perverse in view of the two specimen seal impressions having been marked as Exhibits PH and PK. It is not the case of the appellant that the seals were found tampered with in any manner."

44. 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.

45. In the present case, a seal impression was obtained on the NCB-I form. The sample seal was also produced before the learned Trial Court. The learned Trial Court had the NCB-I Form and the sample seal to compare the seal impression on the parcel.

The learned Trial Court noticed while examining HASI-Deepak Raj (PW3) that the case property was bearing six seals of seal impression 'T' and the seals were intact. Another parcel has eight impressions of the seal 'T', and the seals were intact. Thus, the learned Trial Court satisfied itself regarding the correctness of the ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 41 Neutral Citation No. ( 2025:HHC:20630 ) seal impression, and the failure to produce the seal cannot be held to be material.

46. It was submitted that the prosecution witnesses stated that the charas was in the form of a ball, whereas balls were found during the analysis; hence, the case property was not connected to the accused. This submission is not acceptable. It was mentioned in the Ruqa that charas was in the form of balls (Golenuma). The photograph (Ex. P16/PW11) also shows the small balls. The seizure memo also mentions balls (Golenuma).

Therefore, the mere use of the word ball shape in the learned Trial Court does not mean that there was only one ball and not multiple balls.

47. The report of the analysis shows that the case property consisted of one sealed cloth parcel marked as "A1" bearing six impressions of seal 'T'. The seals were found intact and were tallied with the specimen seal sent by the forwarding authority and seal impression incorporated on the NCB-I Form. This report establishes the integrity of the case property. It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, where the report of analysis shows that the seals were intact, the case of the prosecution that ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 42 Neutral Citation No. ( 2025:HHC:20630 ) 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."

48. Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held:

"It has also come to evidence that to date, the parcels of the sample were received by the Chemical Examiner, and the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the previously mentioned seal in the sample at any stage, and the sample received by the analyst for chemical examination contained the same opium, which was recovered from the possession of the appellant. In that view of the matter, a delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant."

49. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402, the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon'ble Supreme Court that the case property was produced in the Court, and there was no evidence of tampering. Seals were found to be ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 43 Neutral Citation No. ( 2025:HHC:20630 ) intact, which would rule out the possibility of tampering. It was observed:

.

"The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom, which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put in the samples were in any manner tampered with before it was examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to how the aforesaid delay of seven days has affected the said examination, when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion, is based on surmises and conjectures and cannot take the place of proof.

17. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard.

18. The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with."

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50. Similar is the judgment of the Hon'ble Supreme Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563, wherein it .

was held: -

"10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence, was incomplete. In this regard, it is to be noticed that Yogi Raj, SHO, handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13.

The concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody, in Police Station Khuian Sarwar, till further orders. Since Joginder Singh, ASI, was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all.

11. Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 45 Neutral Citation No. ( 2025:HHC:20630 ) chain of evidence was complete." (Emphasis supplied)

51. Therefore, the integrity of the case property is duly .

established in the present case.

52. The compliance of Section 57 of the NDPS Act was also duly proved. SI-Bheem Sen (PW11) stated that he prepared the special report and handed it over to Samad Akhtar on 24.01.2016 with a direction to carry it to SDPO, Sundernagar. Samad Akhtar (PW6) stated that Bheem Sen handed over the special report to him on 24.01.2016, and he handed it over to the SDPO at 6:00 pm. Kulbhushan Verma (PW2) stated that Constable Samad Akhtar handed over the special report to him on 24.01.2016 at 6:00 pm. There is nothing in their cross-examination to show that they were making false statements; hence, it was proved that the special report was handed over to SDPO, Sundernagar, within 72 hours of the recovery.

53. Therefore, the learned Trial Court had rightly held that the prosecution case was proved beyond a reasonable doubt for the commission of an offence punishable under Section 20 of the NDPS Act and had rightly convicted the accused of the commission of an offence punishable under Section 20 of the NDPS Act.

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54. Learned Trial Court sentenced the accused to undergo rigorous imprisonment for five years and to pay a fine of .

₹50,000/-, and in default of payment of fine to further undergo rigorous imprisonment for six months. A perusal of the notification issued by the Central Government shows that 100 grams of charas is a small quantity, whereas 1 kg of charas is the commercial quantity. It means that a person possessing 1 kg of charas can be sentenced to 10 years of imprisonment. It was laid down by the Hon'ble Supreme Court in Uggarsain v. State of Haryana, (2023) 8 SCC 109: 2023 SCC OnLine SC 755 that the Courts have to apply the principle of proportionality while imposing 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 (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., ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 47 Neutral Citation No. ( 2025:HHC:20630 ) (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, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration." (emphasis supplied)

11. Again, in Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 : (2012) 8 SCR 189] the Court stressed that : (SCC p. 744, para 33) "33. ... It is the duty of the court to see that an appropriate sentence is imposed, regard being had to the commission of the crime and its impact on the social order" (emphasis supplied) and that sentencing includes "adequate punishment". In B.G. Goswami v. Delhi Admn. [B.G. Goswami v. Delhi Admn., (1974) 3 SCC 85: 1973 SCC (Cri) 796 : (1974) 1 SCR 222], the Court considered the issue of punishment and observed that punishment is designed to protect society by deterring potential offenders as well as prevent the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentences.

12. In Sham Sunder v. Puran [Sham Sunder v. Puran, (1990) 4 SCC 731: 1991 SCC (Cri) 38: 1990 Supp (1) SCR 662], the appellant-accused was convicted under Section 304 Part I IPC. The appellate court reduced the sentence to the term of imprisonment already undergone, i.e. six months.

::: Downloaded on - 01/07/2025 21:22:53 :::CIS

P a g e | 48 Neutral Citation No. ( 2025:HHC:20630 ) However, it enhanced the fine. This Court ruled that the sentence awarded was inadequate. Proceeding further, it opined that: (SCC p. 737, para 8) .

"8. ... The court, in fixing the punishment for any particular crime, should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of the opinion that to meet the ends of justice, the sentence has to be enhanced."

(emphasis supplied) This Court enhanced the sentence to one of rigorous imprisonment for a period of five years. This Court has emphasised, in that sentencing depends on the facts, and the adequacy is determined by factors such as "the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected" [Ravada Sasikala v. State of A.P. [Ravada 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.

55. The learned Trial Court held that the impact of charas is severe on society, but the Central Government has already taken care of it while prescribing the quantity. The Legislature also considered the same while providing a range of sentences up ::: Downloaded on - 01/07/2025 21:22:53 :::CIS P a g e | 49 Neutral Citation No. ( 2025:HHC:20630 ) to 10 years. Therefore, there is no reason to deviate from the provision of principle of proportionality. If this principle is .

applied to the present case, the accused possessing 340 grams of charas would be liable to punishment for three years and four months and pay a fine of ₹ 34,000/-. Hence, the sentence imposed by the learned Trial Court is excessive, which is liable to be interfered with.

56. In view of the above, the present appeal is partly allowed and the appellant/accused is sentenced to undergo rigorous imprisonment for three years and four months and to pay a fine of ₹34,000/- and in default of payment of fine, to further undergo rigorous imprisonment for four months for the commission of offence punishable under Section 20(B)(ii)(b) of ND&PS Act. Subject to this modification, the rest of the sentence awarded by the learned Trial Court is upheld.

57. In view of the above, the present appeal is partly allowed, and the sentence imposed by the learned Trial Court is modified as noted above. The modified warrants be prepared accordingly.

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58. Records be sent back forthwith. Pending applications, if any, also stand disposed of.


                                                     (Rakesh Kainthla)
                                                               Judge
     1st July, 2025





          (Saurav pathania)




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Gian Chand vs State Of H.P on 1 July, 2025