Himachal Pradesh High Court
Reserved On: 01.01.2025 vs State Of Himachal Pradesh on 6 January, 2025
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
2025:HHC:835
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 133 of 2024
Reserved on: 01.01.2025
Date of Decision: 06.01.2025
Chamaru Ram
….Appellant
Versus
State of Himachal Pradesh
….Respondent
Coram
Hon’ble Mr Justice Tarlok Singh Chauhan, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Ms. Anjali Soni Verma, and
Ms.Shivani Tegta, Advocates.
For the Respondent/ : Mr. Anup Rattan, Advocate
State General with Ms. Sharmila
Patial, Mr. Navlesh Verma,
Additional Advocates General
and Mr. Raj Negi, Deputy
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the
judgment and order dated 01.03.2021 passed by learned
Special Judge, Chamba, H.P. (learned Trial Court) vide which
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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the appellant (accused before the learned Trial Court) was
convicted of the commission of an offence punishable under
Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act (in short ‘NDPS Act‘) and was sentenced to
undergo rigorous imprisonment for 10 years, pay a fine of
₹1,00,000/- and, in default of payment of the fine, to undergo
further simple imprisonment for one year. (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 before the
learned Trial Court for the commission of an offence
punishable under Section 20 of the NDPS Act. It was asserted
that H.C. Ramesh Kumar (PW-13), HC Dinesh Kumar (PW-1),
Constable Hem Raj (PW-2), HHG Raj Kumar, H.C. Sanjeev
Kumar (PW-4), HHC Manohar Lal, LHC Upender Chona,
Constable Sunil Kumar, Constable Sanjay Kumar (PW-12) and
ASI Govind Pal were present at Koti Bridge on 01.02.2018 in
an official vehicle bearing registration No. HP73-8754, being
driven by Constable Dinesh Kumar and in a private vehicle
bearing registration No. HP44-2048. They were checking the
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vehicles and the persons moving on the road. The accused
came towards Koti Bridge at about 8:50 p.m. on foot. He got
frightened after seeing the police and tried to go back. HC
Ramesh Kumar (PW-13) apprehended him with the help of
accompanying police officials. The accused was carrying a
backpack (Ext.P-2) in his shoulders. He revealed his name as
Chamaru Ram on enquiry. He could not give any satisfactory
reply regarding the contents of the backpack and the place to
which he was going. The place was lonely and deserted one. It
was night time, and no independent witness was available;
hence, Chamaru Ram’s backpack was searched in the presence
of police officials. The police found a carry bag bearing the
words “Mahsem” inside the backpack. The police opened the
carry bag and found black charas/cannabis. The police
weighed the charas/cannabis in two lots: one lot of 700 grams
and the second lot of 540 grams, and found its weight to be
1kg and 240 grams. The charas/cannabis was put in the carry
bag, and the carry bag was put in the backpack in the same
manner in which it was recovered. The backpack was put
into a cloth parcel, and the same was sealed with six seals of
‘SA’. The seal impression was taken on a separate piece of
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cloth. NCB-1 form (Ext.PW13/A) was filled in triplicate. The
seal impression was put on the NCB form. The parcel,
NCB-I form and sample seal were seized vide memo
(Ext.PW-1/B). Photographs (Ext.PW-8/A to Ext.PW-8/C) of
the spot were taken by Constable Sanjay Kumar (PW-12). The
seal was handed over to HC Dinesh Kumar (PW-1) after the
use. Rukka (Ext.PW-2/A) was prepared and sent to the Police
Station where F.I.R. (Ext.PW-11/A) was registered. HC Ramesh
Kumar (PW-13) investigated the case. He prepared the site
plan (Ext.PX) and recorded the statements of witnesses as per
their version. He arrested the accused vide memo
(Ext.PW-1/C). He searched the accused and prepared a memo
(Ext.PW-1/D). The case property was produced before SI
Krishan Kumar (PW-11), who resealed it with three seals of
‘SC’. SI Kirshan Kumar obtained the seal impression
(Ext.PW-5/B) on a separate piece of cloth and put the seal
impression on the NCB-1 form. He handed over the seal to
constable Khem Raj (PW-5) after the use. He prepared the
reseal memo (Ext.PW-5/A). He handed over the case
property, NCB-1 form and sample seal to HC Rajput Pardeep
(PW-7), who entered it in the Malkhana register at Sl. No.
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717/18 (Ext.PW-7/A) and deposited it in Malkhana. He handed
over the parcel to HC Ramesh Kumar (PW-13) to get the
inventory certified by the Court. HC Ramesh Kumar produced
the case property and the accused before the learned Judicial
Magistrate First Class, Dalhousie, District Chamba, H.P. with
an application (Ext.PW-13/B) for certification of the
inventory. Learned Judicial Magistrate First Class Dalhousie,
District Chamba, H.P. passed an order (Ext.PW-13/C) and
issued a certificate (Ext.PW-13/D). Two samples of 26 grams
each of cannabis were drawn in the presence of the learned
Magistrate. Each sample was put in a parcel, and the parcel
was sealed with three seals of the Court. Seal impression
(Ext.W-13/E) was obtained on a separate piece of cloth.
Photographs (Ext.PW-13-F to Ext.PW-13/K) were taken.
Certificate (Ext.PW-13/L) and Annexure-1 (Ext.PW13/M) were
issued by the learned Judicial Magistrate, First Class,
Dalhousie, District Chamba, H.P. HC Ramesh Kumar (PW-13)
deposited the parcel, samples parcels, and seal impression
with HC Rajput Pardeep (PW-7), who deposited it in the
Malkhana. He sent the sample parcel, NCB-I form in
triplicate, inventory certificate, certificates, and order of the
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learned Judicial Magistrate, First Class, Dalhousie, District
Chamba, H.P., copies of seizure memo & reseal memo, and
specimen of Court seal to SFSL, Junga, H.P. through Constable
Surinder Singh (PW-6), who deposited them at State FSL,
Junga, and handed over the receipt to MHC on his return. A
special report (Ext.PW-4/B) was prepared and sent to the
Additional Superintendent of Police, Chamba, through LC
Anoopa (PW-3). She handed over the special report to
Varinder Singh (Additional Superintendent of Police, Chamba,
H.P.) on 03.02.2018 at 11:25 a.m. Varinder Singh, Additional
S.P. Chamba, handed over the special report to HC Sanjeev
Kumar (PW-4) after making his endorsement. HC Sanjeev
Kumar (PW-4) made an entry in the receipt register at Sl. No.
57 (Ext.PW-4/C) and retained it on record. The result of the
analysis (Ext.PY) was issued, in which it was shown that the
exhibit was an extract of cannabis and a sample of charas,
which contained 27.67% w/w resin in it. Statement of
witnesses were recorded as per their version, and after the
completion of the investigation, the challan was prepared and
presented before the Court.
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3. The learned Trial Court charged the accused with
the commission of an offence punishable under Section
20(b)(ii) (C) of the NDPS Act, to which the accused pleaded
not guilty and claimed to be tried.
4. The prosecution examined 13 witnesses to prove its
case. HC Dinesh Kumar (PW-1), Constable Hem Raj (PW-2),
and Constable Sanjay Kumar (PW-12) are the official
witnesses to the recovery. LC Anoopa (PW-3) carried the
Special report to Additional S.P. Chamba. HC Sanjeev Kumar
(PW-4) was posted as a Reader to Additional S.P.Chamba, to
whom the Special Report was handed over by Additional
S.P.Chamba. Constable Khem Raj (PW-5) is the witness to the
resealing, Constable Surinder Singh (PW-6) carried the case
property to SFSL, Junga, H.P. HC Rajput Pardeep (PW-7) was
working as MHC with whom the case property was deposited.
Sher Khan (PW-8) developed the photographs. LHHC
Shankuntla (PW-9) proved the entries in the daily diary.
Constable Amit Kumar (PW-10) prepared the CD regarding
the destruction of the case property. SI Krishan Kumar
(PW-11) was working as SHO, who resealed the case property.
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HC Ramesh Kumar (PW-13) effected the recovery and
conducted the investigation.
5. The accused, in his statement recorded under
Section 313 of Cr.P.C., denied the prosecution case in its
entirety. He claimed that he was innocent,the witnesses
deposed against him because they were police officials, and a
false case was made out against him. No defence was sought
to be adduced by the accused.
6. The learned Trial Court held that the prosecution
case was based upon a chance recovery. The police
apprehended the accused during the search of the vehicles
and the people during the Nakka. It was not possible to
associate independent witnesses in such circumstances. The
witnesses consistently stated about the apprehension of the
accused, the search of his backpack and the recovery of
cannabis. Minor contradictions in the statements were not
sufficient to discard them. The integrity of the case property
was proved. There was no requirement to comply with
Sections 42 and 50 of the NDPS Act. Therefore, the accused
was convicted and sentenced as aforesaid.
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7. Being aggrieved and dissatisfied with the
judgment and order passed by the learned Trial Court, the
accused/appellant has filed the present appeal asserting that
the learned Trial Court erred in convicting and sentencing the
accused. There were material contradictions and
improvements in the statements of prosecution witnesses,
which were ignored by the learned Trial Court. The
independent witnesses were not associated, which casts doubt
on the prosecution case. All the official witnesses present on
the spot were not examined. An adverse inference should have
been drawn against the prosecution. There was non-
compliance with Sections 42 and 50 of the NDPS Act, which
are mandatory. The contradictions were significant, and the
learned Trial Court erred in discarding them. The link
evidence was missing, and the prosecution case was not
proved beyond a reasonable doubt; 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. We have heard Ms Anjali Soni Verma and Ms
Shivani Tegta, learned counsel for the appellant, and Mr Anup
Rattan, learned Advocate General assisted by Ms Sharmila
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Patial, Mr Navlesh Verma, learned Additional Advocates
General and Mr Raj Negi, learned Deputy Advocate General
for the respondent/State.
9. Ms Anjali Soni Verma, learned counsel for the
appellant/accused, submitted that the learned Trial Court
erred in convicting and sentencing the accused. There were
major contradictions and improvements in the testimonies of
official witnesses, and the learned Trial Court erred in
discarding them. The prosecution had failed to comply with
the requirements of Sections 42 and 50 of the NDPS Act,
which are mandatory. The integrity of the case property was
not established. There was no evidence that the sample was
homogenous, and case property was not produced before the
learned Trial Court, which is fatal to the case of the
prosecution case. She prayed that the present appeal be
allowed and the judgment and order passed by the learned
Trial Court be set aside. She relied upon the judgments of this
Court in Sanju Kumar vs State of H.P. 2023:HHC8835 and
Lalman vs State of Himachal Pradesh, 2024:HHC:6596 in
support of her submission.
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10. Mr. Anup Rattan, learned Advocate General for the
respondent-State, supported the judgment and order passed
by the learned Trial Court. He submitted that the recovery
was effected while checking the vehicles and the persons.It
was a chance recovery, and it was not possible to associate
any independent witness. The case property was destroyed by
the Drug Destruction Committee, and a certificate of
destruction was duly brought on record. Therefore, no adverse
inference should be drawn against the prosecution. Samples
were drawn randomly from the Charas as per the standing
orders. The contradictions were minor and bound to come
with time. Learned Trial Court had rightly discarded the
minor contradictions. He prayed that the present appeal be
dismissed.
11. We have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
12. HC Ramesh Kumar (PW-13) stated that he, HC
Dinesh Kumar (PW-1), Constable Hem Raj (PW-2), and HHG
Raj Kumar had left Police Station Sadar Chamba at about 5:20
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p.m. in a private vehicle bearing registration No.HP44-2048.
When they reached the police lines, they met an SIU team
consisting of ASI Govind Pal, HC Sanjay Kumar, HHC Manohar
Lal, LHC Upinder Chona, Constable Sunil Kumar and
Constable Sanjay Kumar (PW-12), who were travelling in an
official vehicle bearing registration No.HP73-8754, which was
being driven by Constable Dinesh Kumar. Both the police
teams went together towards Koti. They laid a nakka and
started checking the vehicles and the people moving on the
road. The accused came towards PWD Chowk at about 8:50
p.m. He got perplexed after seeing the police party and tried
to flee by turning away. Police officials apprehended him. He
revealed his name as Chamaru Ram on enquiry. The accused
could not offer any satisfactory explanation about the articles
lying inside the backpack and why he had tried to run after
seeing the police party. The police checked the backpack and
found a carry bag in it. The cannabis was weighed in two lots
of 700 grams and 540 grams. The total weight of the
contraband was found to be 1 kg 240 grams. The cannabis was
put in the carry bag, and the carry bag was put in the
backpack. The backpack was put in a cloth parcel, and the
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parcel was sealed with six seals of ‘SA’. The seal impression
was taken on a separate piece of cloth. NCB-I form in
triplicate was filled. The sealed parcel, NCB-I form, and
sample seal were seized vide memo (Ext.PW-1/B).
Photographs were taken. Seal was handed over to HC Dinesh
Kumar (PW-1). Rukka (Ext.PW-2/A) was sent through
Constable Hem Raj (PW-5) to the Police Station Sadar
Chamba, H.P. The Site plan of the spot (Ext.PX) was prepared.
Statements of witnesses were recorded as per their version.
13. Similar statements were made by HC Dinesh
Kumar (PW-1), Constable Hem Raj (PW-2), and Constable
Sanjay Kumar (PW-12).
14. Ms Anjali Soni Verma, learned counsel for the
appellant-accused, highlighted the following contradictions
in the statements of the witnesses:
i). HC Dinesh Kumar (PW-1) stated in his cross-
examination that 10-15 vehicles and 3-4 persons were
checked on the spot. C.Sanjay Kumar (PW-12) and HC
Ramesh Kumar (PW-13) stated in their cross-
examination that 30-35 vehicles were checked. HC
Ramesh Kumar (PW-13) further in his cross-
examination stated that no person was checked.
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ii). HC Dinesh Kumar (PW-1) it his cross-
examination that the proceedings were conducted in
the light of the vehicle. Constable Hem Raj (PW-5) in
his cross-examination stated that nakka was laid in the
light of vehicles and mega lights. HC Ramesh Kumar
(PW-13) in his cross-examination stated that
proceedings were conducted in the light of the vehicle
and the searchlight.
15. The principles of appreciation of ocular evidence
were explained by the Hon’ble Supreme Court in Balu Sudam
Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC
OnLine SC 355, wherein it was observed:-
Appreciation of oral evidence
“25. The appreciation of ocular evidence is a hard task.
There is no fixed or straitjacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for 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 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.
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II. 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 be proper to reject the evidence on the
ground of minor variations or infirmities in the
matter of trivial details.
III. When an eyewitness 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
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, 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.
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 video tape 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,
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2025:HHC:835cannot 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
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 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.
XI. 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.
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 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.
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XIII. A former statement, though seemingly
inconsistent with the evidence, need not necessarily
be sufficient to amount to contradiction. Unless the
former statement has the potency to discredit the
later statement, even if the later 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 [Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, (1983) 3 SCC 217: 1983 SCC (Cri) 728: AIR 1983
SC 753], Leela Ram v. State of Haryana [Leela
Ramv. State of Haryana, (1999) 9 SCC 525: 2000 SCC
(Cri) 222: AIR 1999 SC 3717] and Tahsildar
Singh v. State of U.P. [Tahsildar Singh v. State of U.P.,
1959 SCC OnLine SC 17: AIR 1959 SC 1012]]
16. It was laid down by the Hon’ble Supreme Court in
Karan Singh v. State of U.P., (2022) 6 SCC 52 : (2022) 2 SCC (Cri)
479: 2022 SCC OnLine SC 253 that the Court has to examine the
evidence of the witnesses to find out whether it has a ring of
truth or not. The Court should not give undue importance to
omission, contradictions and discrepancies which do not go to
the heart of the matter. It was observed at page 60:-
“38. From the evidence of Mahender Singh, PW 4, it
appears that no specific question was put to him as to
whether the appellant was present at the place of
occurrence or not. This Court in Rohtash Kumar v. State
of Haryana [Rohtash Kumar v. State of Haryana, (2013)
14 SCC 434: (2014) 4 SCC (Cri) 238]held : (SCC p. 446,
para 24)
“24. … The court has to examine whether the
evidence read as a whole appears to have a ring of
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2025:HHC:835truth. 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 witnesses and whether the
earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to
the heart of the matter and shake the basic version
of the prosecution witness.”
39. Referring to Narayan Chetanram Chaudhary v. State
of Maharashtra [Narayan Chetanram Chaudhary v. State
of Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546],
Mr Tyagi argued that minor discrepancies caused by
lapses in memory were acceptable, contradictions were
not. In this case, there was no contradiction, only
minor discrepancies.
40. In Kuriya v. State of Rajasthan [Kuriya v. State of
Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202],
this Court held: (SCC pp. 447-48, paras 30-32)
“30. This Court has repeatedly taken the view that
the discrepancies or improvements which do not
materially affect the case of the prosecution and are
insignificant cannot be made the basis for doubting
the case of the prosecution. The courts may not
concentrate too much on such discrepancies or
improvements. The purpose is to primarily and
clearly sift the chaff from the grain and find out the
truth from the testimony of the witnesses. Where it
does not affect the core of the prosecution case,
such discrepancy should not be attached undue
significance. The normal course of human conduct
would be that while narrating a particular incident,
there may occur minor discrepancies. Such
discrepancies may even, in law, render credentials
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to the depositions. The improvements or variations
must essentially relate to the material particulars of
the prosecution case. The alleged improvements
and variations must be shown with respect to
the material particulars of the case and the
occurrence. Every such improvement, not directly
related to the occurrence, is not a ground to doubt
the testimony of a witness. The credibility of a
definite circumstance of the prosecution case
cannot be weakened with reference to such minor or
insignificant improvements. Reference in this
regard can be made to the judgments of this Court
in Kathi Bharat Vajsur v. State of Gujarat [Kathi
Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 :
(2012) 2 SCC (Cri) 740], Narayan Chetanram
Chaudhary v. State of Maharashtra [Narayan
Chetanram Chaudhary v. State of Maharashtra,
(2000) 8 SCC 457: 2000 SCC (Cri) 1546], Gura
Singh v. State of Rajasthan [Gura Singh v. State of
Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323]
and Sukhchain Singh v. State of Haryana [Sukhchain
Singh v. State of Haryana, (2002) 5 SCC 100: 2002 SCC
(Cri) 961].
31. What is to be seen next is whether the version
presented in the Court was substantially similar to
what was said during the investigation. It is only
when exaggeration fundamentally changes the
nature of the case the Court has to consider whether
the witness was stating the truth or not. [Ref. Sunil
Kumar v. State (NCT of Delhi) [Sunil Kumar v. State
(NCT of Delhi), (2003) 11 SCC 367: 2004 SCC (Cri)
1055] ].
32. These are variations which would not amount to
any serious consequences. The Court has to accept
the normal conduct of a person. The witness who is
watching the murder of a person being brutally
beaten by 15 persons can hardly be expected to state
a minute-by-minute description of the event.
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Everybody, and more particularly a person who is
known to or is related to the deceased, would give
all his attention to take steps to prevent the assault
on the victim and then to make every effort to
provide him with medical aid and inform the police.
The statements which are recorded immediately
upon the incident would have to be given a little
leeway with regard to the statements being made
and recorded with utmost exactitude. It is a settled
principle of law that every improvement or
variation cannot be treated as an attempt to falsely
implicate the accused by the witness. The approach
of the court has to be reasonable and practicable.
Reference in this regard can be made to Ashok
Kumar v. State of Haryana [Ashok Kumar v. State of
Haryana, (2010) 12 SCC 350: (2011) 1 SCC (Cri) 266]
and Shivlal v. State of Chhattisgarh [Shivlal v. State of
Chhattisgarh, (2011) 9 SCC 561 : (2011) 3 SCC (Cri)
777].”
41. In Shyamal Ghosh v. State of W.B. [Shyamal
Ghosh v. State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC
(Cri) 685], this Court held : (SCC pp. 666-67, paras 46
& 49)
“46. Then, it was argued that there are certain
discrepancies and contradictions in the statement
of the prosecution witnesses inasmuch as these
witnesses have given different timing as to when
they had seen the scuffling and strangulation of the
deceased by the accused. … Undoubtedly, some
minor discrepancies or variations are traceable in
the statements of these witnesses. But what the
Court has to see is whether these variations are
material and affect the case of the prosecution
substantially. Every variation may not be enough to
adversely affect the case of the prosecution.
***
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49. It is a settled principle of law that the court
should examine the statement of a witness in its
entirety and read the said statement along with the
statement of other witnesses in order to arrive at a
rational conclusion. No statement of a witness can
be read in part and/or in isolation. We are unable to
see any material or serious contradiction in the
statement of these witnesses which may give any
advantage to the accused.”
42. In Rohtash Kumar v. State of Haryana [Rohtash
Kumar v. State of Haryana, (2013) 14 SCC 434 : (2014) 4
SCC (Cri) 238], this Court held : (SCC p. 446, para 24)
“24. … The court has to examine whether
the evidence 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 witnesses and whether the
earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to
the heart of the matter and shake the basic version
of the prosecution witness.”
17. Similar is the judgment in Anuj Singh v. State of
Bihar, 2022 SCC OnLine SC 497: AIR 2022 SC 2817, wherein it
was observed:-
“[17] It is not disputed that there are minor
contradictions with respect to the time of the
occurrence or injuries attributed on hand or foot, but
the constant narrative of the witnesses is that the
appellants were present at the place of occurrence
22
2025:HHC:835armed with guns and they caused the injury on
informant PW-6. However, the testimony of a witness
in a criminal trial cannot be discarded merely because
of minor contradictions or omissions, as observed by
this court in Narayan Chetanram Chaudhary &Anr. Vs.
State of Maharashtra, 2000 8 SCC 457. This Court, while
considering the issue of contradictions in the
testimony while appreciating the evidence in a
criminal trial, held that only contradictions in material
particulars and not minor contradictions can be
ground to discredit the testimony of the witnesses. The
relevant portion of para 42 of the judgment reads as
under:
“42. Only such omissions which amount to a
contradiction in material particulars can be used
to discredit the testimony of the witness. The
omission in the police statement by itself would
not necessarily render the testimony of the
witness unreliable. When the version given by
the witness in the court is different in material
particulars from that disclosed in his earlier
statements, the case of the prosecution becomes
doubtful and not otherwise. Minor
contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false, and the sense of
observation differs from person to person. The
omissions in the earlier statement, if found to be
of trivial details, as in the present case, the same
would not cause any dent in the testimony of PW
2. Even if there is a contradiction of statement of
a witness on any material point, that is no
ground to reject the whole of the testimony of
such witness.”
18. Therefore, in view of the binding precedents of the
Hon’ble Supreme Court, the statements of the witnesses
23
2025:HHC:835
cannot be discarded due to omissions, contradictions or
discrepancies. The Court has to see whether the discrepancies
affect the prosecution case adversely or not and whether they
are related to the core of the prosecution case or the details.
19. The contradiction regarding the number of
vehicles or the persons checked by the police relates to
matters of details and does not affect the core of the
prosecution’s case. No person counts the number of vehicles,
and a person, when asked about the number of vehicles, gives
his estimate, which may vary from person to person;
therefore, the difference in the number of vehicles is
insignificant. The contradictions regarding the number of
persons checked by the police party can occur with time;
therefore, this contradiction will not make the prosecution
case suspect.
20. All the witnesses consistently stated that the
proceedings were conducted with the help of the lights of the
vehicles. Constable Hem Raj (PW-2) stated that the mega light
was also used for conducting the proceedings. HC Ramesh
Kumar (PW-13) stated that a search light was also used. There
24
2025:HHC:835
is no difference between search light and mega light, and
there is no real contradiction in the statements Constable
Hem Raj (PW-2) and HC Ramesh Kumar (PW-13). The failure
to mention the searchlight by HC Dinesh Kumar can be due to
the failure of the memory with time. Hence, this contradiction
will not affect the prosecution case adversely.
21. It was submitted that all the witnesses to the
incident were not examined which would make the
prosecution case doubtful. This submission cannot be
accepted. It was held in Hukam Singh v. State of Rajasthan,
(2000) 7 SCC 490: 2000 SCC (Cri) 1416: 2000 SCC OnLine SC 1311
that the Public Prosecutor is not obliged to examine all the
witnesses. It was observed at page 495:
“13. When the case reaches the stage envisaged in
Section 231 of the Code the Sessions Judge is obliged
“to take all such evidence as may be produced in
support of the prosecution”. It is clear from the said
section that the Public Prosecutor is expected to
produce evidence “in support of the prosecution” and
not in derogation of the prosecution case. At the said
stage the Public Prosecutor would be in a position to
take a decision as to which among the persons cited are
to be examined. If there are too many witnesses on the
same point the Public Prosecutor is at liberty to choose
two or some among them alone so that the time of the
Court can be saved from repetitious depositions on the
same factual aspects. That principle applies when there
25
2025:HHC:835are too many witnesses cited if they all had sustained
injuries at the occurrence. The Public Prosecutor in
such cases is not obliged to examine all the injured
witnesses. If he is satisfied by examining any two or
three of them, it is open to him to inform the Court
that he does not propose to examine the remaining
persons in that category. This will help not only the
prosecution in relieving itself of the strain of adducing
repetitive evidence on the same point but also help the
Court considerably in lessening the workload. The time
has come to make every effort possible to lessen the
workload, particularly those courts crammed with
cases, but without impairing the cause of justice.
14. The situation in a case where the prosecution cited
two categories of witnesses to the occurrence, one
consisting of persons closely related to the victim and
the other consisting of witnesses who have no such
relation, the Public Prosecutor’s duty to the Court may
require him to produce witnesses from the latter
category, also subject to his discretion to limit to one
or two among them. But if the Public Prosecutor got
reliable information that anyone among that category
would not support the prosecution version, he is free to
state in court about that fact and skip that witness
from being examined as a prosecution witness. It is
open to the defence to cite him and examine him as a
defence witness. The decision in this regard has to be
taken by the Public Prosecutor in a fair manner. He can
interview the witness beforehand to enable him to
know well in advance the stand which that particular
person would be adopting when examined as a witness
in court.
15. A four-judge Bench of this Court had stated the
above legal position thirty-five years ago
in Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ
226] It is contextually apposite to extract the following
observation of the Bench:
26
2025:HHC:835
“It is not unknown that where serious offences like
the present are committed, and a large number of
accused persons are tried, attempts are made either
to terrorise or win over prosecution witnesses, and
if the prosecutor honestly and bona fide believes
that some of his witnesses have been won over, it
would be unreasonable to insist that he must tender
such witnesses before the court.”
16. The said decision was followed in Bava Hajee
Hamsa v. State of Kerala [(1974) 4 SCC 479: 1974 SCC
(Cri) 515: AIR 1974 SC 902]. In Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973
SCC (Cri) 1033], Krishna Iyer J., speaking for a three-
judge Bench had struck a note of caution that while a
Public Prosecutor has the freedom “to pick and
choose” witnesses he should be fair to the court and
the truth. This Court reiterated the same position
in Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158: 1976
SCC (Cri) 527].
22. It was laid down by the Hon’ble Supreme Court in
Pohlu v. State of Haryana, (2005) 10 SCC 196: 2005 SCC (Cri)
1496: 2004 SCC OnLine SC 1393 that the intrinsic worth of the
testimony of witnesses has to be assessed by the Court, and if
the testimony of the witnesses appears to be truthful, the
non-examination of other witnesses will not make the
testimony doubtful. It was observed at page 199: –
“10. It was then submitted that some of the material
witnesses were not examined, and in this connection, it
was argued that two of the eyewitnesses named in the
FIR, namely, Chander and Sita Ram, were not examined
by the prosecution. Dharamvir, son of Sukhdei, was
also not examined by the prosecution, though he was a
27
2025:HHC:835material witness, being an injured eyewitness, having
witnessed the assault that took place in the house of
Sukhdei, PW 2. It is true that it is not necessary for the
prosecution to multiply witnesses if it prefers to rely
upon the evidence of the eyewitnesses examined by it,
which it considers sufficient to prove the case of the
prosecution. However, the intrinsic worth of the
testimony of the witnesses examined by the
prosecution has to be assessed by the court. If their
evidence appears to be truthful, reliable and
acceptable, the mere fact that some other witnesses
have not been examined will not adversely affect the
case of the prosecution. We have, therefore, to examine
the evidence of the two eyewitnesses, namely, PW 1 and
PW 2, and to find whether their evidence is true, on the
basis of which the conviction of the appellants can be
sustained.”
23. This position was reiterated in Rohtash Kumar v.
State of Haryana, (2013) 14 SCC 434: (2014) 4 SCC (Cri) 238: 2013
SCC OnLine SC 496 and it was held that the prosecution is not
bound to examine all the cited witnesses and it can drop
witnesses to avoid multiplicity or plurality of witnesses. It was
observed at page 442:
“Whether the prosecution must examine all the witnesses
14. A common issue that may arise in such cases where
some of the witnesses have not been examined, though
the same may be material witnesses, is whether the
prosecution is bound to examine all the listed/cited
witnesses. This Court, in Abdul Gani v. State of
M.P. [(1952) 1 SCC 253: AIR 1954 SC 31: 1954 Cri LJ 323],
has examined the aforesaid issue and held that as a
general rule, all witnesses must be called upon to
28
2025:HHC:835testify in the course of the hearing of the prosecution,
but that there is no obligation compelling the public
prosecutor to call upon all the witnesses available who
can depose regarding the facts that the prosecution
desires to prove. Ultimately, it is a matter left to the
discretion of the public prosecutor, and though a court
ought to, and no doubt would take into consideration
the absence of witnesses whose testimony would
reasonably be expected, it must adjudge the evidence as
a whole and arrive at its conclusion accordingly, taking
into consideration the persuasiveness of the testimony
given in the light of such criticism, as may be levelled
at the absence of possible material witnesses.
15. In Sardul Singh v. State of Bombay [AIR 1957 SC 747:
1957 Cri LJ 1325], a similar view has been reiterated,
observing that a court cannot normally compel the
prosecution to examine a witness which the
prosecution does not choose to examine, and that the
duty of a fair prosecutor extends only to the extent of
examination of such witnesses, who are necessary for
the purpose of disclosing the story of the prosecution
with all its essentials.
16. In Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1
Cri LJ 226], this Court held that it would be unsound to
lay down as a general rule, that every witness must be
examined, even though the evidence provided by such
witness may not be very material, or even if it is a
known fact that the said witness has either been won
over or terrorised.
In such cases, it is always open to the defence to
examine such witnesses as their own witnesses, and
the court itself may also call upon such a witness in
the interests of justice under Section 540 CrPC. (SCC
p. 209, para 12)emphasis supplied)
(See also Bir Singh v. State of U.P. [(1977) 4 SCC 420: 1977
SCC (Cri) 640])
29
2025:HHC:835
17. In Darya Singh v. State of Punjab [AIR 1965 SC 328 :
(1965) 1 Cri LJ 350], this Court reiterated a similar view
and held that if the eyewitness(s) is deliberately kept
back, the court may draw an inference against the
prosecution and may, in a proper case, regard the
failure of the prosecutor to examine the said witnesses
as constituting a serious infirmity in the proof of the
prosecution case.
18. In Raghubir Singh v. State of U.P. [(1972) 3 SCC 79:
1972 SCC (Cri) 399: AIR 1971 SC 2156] this Court held as
under: (SCC p. 84, para 10)
“10. … Material witnesses considered necessary by
the prosecution for unfolding the prosecution story
alone need to be produced without unnecessary and
redundant multiplication of witnesses. The
appellant’s counsel has not shown how the
prosecution story is rendered less trustworthy as a
result of the non-production of the witnesses
mentioned by him. No material and important
witness was deliberately kept back by the
prosecution. Incidentally, we may point out that
the accused, too, have not considered it proper to
produce those persons as witnesses for controverting
the prosecution version.”(emphasis added)
19. In Harpal Singh v. Devinder Singh [(1997) 6 SCC 660:
1997 SCC (Cri) 981: AIR 1997 SC 2914], this Court
reiterated a similar view and further observed : (SCC p.
668, para 24)
“24. … Illustration (g) in Section 114 of the Evidence
Act is only a permissible inference and not a
necessary inference. Unless there are other
circumstances also to facilitate the drawing of an
adverse inference, it should not be a mechanical
process to draw the adverse inference merely on the
strength of non-examination of a witness even if it
is a material witness.”
30
2025:HHC:835
20. In Mohanlal Shamji Soni v. Union of India [1991 Supp
(1) SCC 271: 1991 SCC (Cri) 595: AIR 1991 SC 1346], this
Court held : (SCC p. 277, para 10)
“10. It is a cardinal rule in the law of evidence that
the best available evidence should be brought before
the court to prove a fact or the points in issue. But it
is left either for the prosecution or for the defence to
establish its respective case by adducing the best
available evidence, and the court is not empowered
under the provisions of the Code to compel either
the prosecution or the defence to examine any
particular witness or witnesses on their sides.
Nonetheless, if either of the parties withholds any
evidence which could be produced and which, if
produced, be unfavourable to the party withholding
such evidence, the court can draw a presumption
under Illustration (g) to Section 114 of the Evidence
Act. … In order to enable the court to find out the
truth and render a just decision, the salutary
provisions of Section 540 of the Code (Section 311 of
the new Code) are enacted whereunder any court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in
attendance though not summoned as a witness or
recall or re-examine any person in attendance
though not summoned as a witness or recall and re-
examine any person already examined who are
expected to be able to throw light upon the matter in
dispute; because if judgments happen to be
rendered on inchoate, inconclusive and speculative
presentation of facts, the ends of justice would be
defeated.”
21. In Banti v. State of M.P. [(2004) 1 SCC 414: 2004 SCC
(Cri) 294: AIR 2004 SC 261], this Court held : (SCC p. 419,
paras 12-14)
“12. In trials before a Court of Session, the
prosecution ‘shall be conducted by a Public
31
2025:HHC:835
Prosecutor’. Section 226 of the Code of Criminal
Procedure, 1973 … enjoins on him to open up his
case by describing the charge brought against the
accused. He has to state what evidence he proposes
to adduce for proving the guilt of the accused. … If
that version is not in support of the prosecution
case, it would be unreasonable to insist on the
Public Prosecutor to examine those persons as
witnesses for prosecution.
13. When the case reaches the stage as envisaged in
Section 231 of the Code, the Sessions Judge is
obliged ‘to take all such evidence as may be
produced in support of the prosecution’. It is clear
from the said section that the Public Prosecutor is
expected to produce evidence ‘in support of the
prosecution’ and not in derogation of the
prosecution case. At the said stage, the Public
Prosecutor would be in a position to take a decision
as to which among the persons cited are to be
examined. If there are too many witnesses on the
same point, the Public Prosecutor is at liberty to
choose two or some among them alone so that the
time of the court can be saved from repetitious
depositions on the same factual aspects. … This will
help not only the prosecution in relieving itself of
the strain of adducing repetitive evidence on the
same point but also help the court considerably in
lessening the workload. The time has come to make
every possible effort to lessen the workload,
particularly of those courts crammed with cases, but
without impairing the cause of justice.
14. … It is open to the defence to cite him and
examine him as a defence witness.”
22. The said issue was also considered by this Court
in R. Shaji [R. Shaji v. State of Kerala, (2013) 14 SCC 266:
AIR 2013 SC 651] and the Court, after placing reliance
upon its judgments in Vadivelu Thevar v. State of
Madras [AIR 1957 SC 614: 1957 Cri LJ 1000] and Kishan
32
2025:HHC:835Chand v. State of Haryana [(2013) 2 SCC 502: JT (2013) 1
SC 222], held as under : (SCC pp. 281-82, para 39)
“39. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses but the
quality of their evidence which is important, as
there is no requirement in the law of evidence
stating that a particular number of witnesses must
be examined in order to prove/disprove a fact. It is a
time-honoured principle that evidence must be
weighed and not counted. The test is whether the
evidence has a ring of truth, is cogent, credible and,
trustworthy, or otherwise. The legal system has laid
emphasis on the value provided by each witness, as
opposed to the multiplicity or plurality of witnesses.
It is thus the quality and not quantity which
determines the adequacy of evidence, as has been
provided by Section 134 of the Evidence Act. Where
the law requires the examination of at least one
attesting witness, it has been held that the number
of witnesses produced over and above this does not
carry any weight.”
23. Thus, the prosecution is not bound to examine all
the cited witnesses, and it can drop witnesses to avoid
multiplicity or plurality of witnesses. The accused can
also examine the cited, but not examined, witnesses, if
he so desires, in his defence. It is the discretion of the
prosecutor to tender the witnesses to prove the case of
the prosecution, and “the court will not interfere with
the exercise of that discretion unless, perhaps, it can be
shown that the prosecution has been influenced by
some oblique motive”. In an extraordinary situation, if
the court comes to the conclusion that a material
witness has been withheld, it can draw an adverse
inference against the prosecution, as has been provided
under Section 114 of the Evidence Act. Undoubtedly, the
public prosecutor must not take the liberty to “pick and
choose” his witnesses, as he must be fair to the court
and, therefore, to the truth. In a given case, the court
33
2025:HHC:835
can always examine a witness as a court witness if it is
so warranted in the interests of justice. In fact, the
evidence of the witnesses must be tested on the
touchstone of reliability, credibility and
trustworthiness. If the court finds the same to be
untruthful, there is no legal bar for it to discard the
same.
24. This position was reiterated in Rajesh Yadav v. State
of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it
was observed at page 224: –
Non-examination of witness
34. A mere non-examination of the witness per se will
not vitiate the case of the prosecution. It depends upon
the quality and not the quantity of the witnesses and
their importance. If the court is satisfied with the
explanation given by the prosecution, along with the
adequacy of the materials sufficient enough to proceed
with the trial and convict the accused, there cannot be
any prejudice. Similarly, if the court is of the view that
the evidence is not screened and could well be
produced by the other side in support of its case, no
adverse inference can be drawn. The onus is on the part
of the party who alleges that a witness has not been
produced deliberately to prove it.
35. The aforesaid settled principle of law has been laid
down in Sarwan Singh v. State of Punjab [Sarwan
Singh v. State of Punjab, (1976) 4 SCC 369: 1976 SCC (Cri)
646]: (SCC pp. 377-78, para 13)
“13. Another circumstance which appears to have
weighed heavily with the Additional Sessions Judge
was that no independent witness of Salabatpura had
been examined by the prosecution to prove the
prosecution case of assault on the deceased,
although the evidence shows that there were some
34
2025:HHC:835persons living in that locality like the
“pakodewalla”, hotelwalla, shopkeeper and some of
the passengers who had alighted at Salabatpura
with the deceased. The Additional Sessions Judge
has drawn an adverse inference against the
prosecution for its failure to examine any of those
witnesses. Mr Hardy has adopted this argument. In
our opinion, the comments of the Additional
Sessions Judge are based on a serious
misconception of the correct legal position. The
onus of proving the prosecution case rests entirely on
the prosecution, and it follows as a logical corollary
that the prosecution has complete liberty to choose its
witnesses if it is to prove its case. The court cannot
compel the prosecution to examine one witness or the
other as its witness. At the most, if a material witness is
withheld, the court may draw an adverse inference
against the prosecution. But it is not the law that the
omission to examine any and every witness, even on
minor points, would undoubtedly lead to rejection of
the prosecution case or drawing of an adverse inference
against the prosecution. The law is well-settled that
the prosecution is bound to produce only such witnesses
as are essential for the unfolding of the prosecution
narrative. In other words, before an adverse inference
against the prosecution can be drawn, it must be
proved to the satisfaction of the court that the witnesses
who had been withheld were eyewitnesses who had
actually seen the occurrence and were, therefore,
material to prove the case. It is not necessary for the
prosecution to multiply witnesses after witnesses on the
same point; it is the quality rather than the quantity of
the evidence that matters. In the instant case, the
evidence of the eyewitnesses does not suffer from
any infirmity or any manifest defect on its intrinsic
merit. Secondly, there is nothing to show that at the
time when the deceased was assaulted, a large
crowd had gathered, and some of the members of
the crowd had actually seen the occurrence and
35
2025:HHC:835were cited as witnesses for the prosecution and then
withheld. We must not forget that in our country;
there is a general tendency amongst the witnesses
in mofussil to shun giving evidence in courts
because of the cumbersome and dilatory procedure
of our courts, the harassment to which they are
subjected by the police and the searching cross-
examination which they have to face before the
courts. Therefore, nobody wants to be a witness in a
murder or any serious offence if he can avoid it.
Although the evidence does show that four or five
persons had alighted from the bus at the time when
the deceased and his companions got down from
the bus, there is no suggestion that any of those
persons stayed on to witness the occurrence. They
may have proceeded to their village
homes.”(emphasis supplied)
36. This Court has reiterated the aforesaid principle
in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State
of Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195]: (SCC
pp. 410-11, para 19)
“19. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses but the
quality of their evidence which is important, as
there is no requirement under the Law of Evidence
that any particular number of witnesses is to be
examined to prove/disprove a fact. It is a time-
honoured principle that evidence must be weighed
and not counted. The test is whether the evidence
has a ring of truth, is cogent, credible, trustworthy
or otherwise. The legal system has laid emphasis on
the value provided by each witness rather than the
multiplicity or plurality of witnesses. It is quality
and not quantity, which determines the adequacy of
evidence, as has been provided by Section 134 of the
Evidence Act. Even in probate cases, where the law
requires the examination of at least one attesting
witness, it has been held that the production of
36
2025:HHC:835
more witnesses does not carry any weight. Thus, the
conviction can even be based on the testimony of a
sole eyewitness if the same inspires confidence.
(Vide Vadivelu Thevar v. State of Madras [Vadivelu
Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC
614], Kunju v. State of T.N. [Kunju v. State of T.N.,
(2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin
Kumar Mondal v. State of W.B. [Bipin Kumar
Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC
(Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of
M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri)
783], Prithipal Singh v. State of Punjab [Prithipal
Singh v. State of Punjab, (2012) 1 SCC 10 : (2012) 1 SCC
(Cri) 1] and Kishan Chand v. State of Haryana [Kishan
Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2
SCC (Cri) 807] .)”
25. Thus, no adverse inference can be drawn for not
examining all the prosecution witnesses.
26. It was submitted that there is non-compliance
with Section 42 of the NDPS Act. This submission is only
stated to be rejected; the police had effected the search of the
accused, who was walking on the road. There was no search
inside the building, conveyance or enclosed place mentioned
in Section 42 of the ND& PS Act. It was laid down by the
Hon’ble Supreme Court in Raju v. State of W.B., (2018) 9 SCC
708: (2019) 1 SCC (Cri) 371: 2018 SCC OnLine SC 1344 that
Section 42 does not apply to the search made of a person
walking in an open space. It was observed at page 716:-
37
2025:HHC:835
“12. An empowered officer under Section 42(1) is
obligated to reduce to writing the information received
by him only when an offence punishable under the Act
has been committed in any building, conveyance or
enclosed place or when a document or an article is
concealed in a building, conveyance or an enclosed
place. Compliance with Section 42, including recording
of information received by the empowered officer, is
not mandatory when an offence punishable under the
Act was not committed in a building, conveyance or an
enclosed place. Section 43 is attracted in situations
where the seizure and arrest are conducted in a public
place, which includes any public conveyance, hotel,
shop, or other place intended for use by, or accessible
to, the public.
13. The appellant was walking along the 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.”
27. Thus, there was no requirement of compliance
with regard to the provisions of Section 42 of the ND&PS Act,
and the prosecution case cannot be doubted due to non-
compliance with Section 42 of the ND&PS Act.
28. It was submitted that a personal search of the
accused was conducted, and the provisions of Section 50 of
the NDPS Act was not complied with. This submission is not
acceptable. It was laid down by the Hon’ble Supreme Court in
38
2025:HHC:835
Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262:
AIR 2023 SC 5164,that where the recovery was effected from
the backpack being carried by the accused, and no recovery
was effected from the personal search, there is no
requirement to comply with the provision of Section 50 of
NDPS Act. Hence, the submission that the prosecution case is
to be discarded due to the non-compliance of Section 50 of
the NDPS Act is not acceptable.
29. It was submitted that no efforts were made to
associate any independent witness, and it is fatal to the
prosecution case. This submission is not acceptable. The
statements of prosecution witnesses show that the police
were checking the vehicles and the people. The accused ran
away after seeing the police, and police apprehended him
based on suspicion. A search of the backpack was conducted,
during which one carry bag containing cannabis was found in
it. 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
39
2025:HHC:835
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 in 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.”
30. 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 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
40
2025:HHC:835searched, 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)
31. 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 on page 566:
“(C) Need for independent witnesses
41
2025:HHC:835
19. It would be gainsaid that the lack of independent
witnesses is not fatal to the prosecution 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.”
32. 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 grounds of non-
corroboration by independent witnesses. As observed
and held by this Court in a catena of decisions,
examination of independent witnesses is not an
indispensable requirement and such non-examination
is not necessarily fatal to the prosecution case
[see Pardeep Kumar [State of H.P. v. Pardeep Kumar,
(2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ].
13. In the recent decision in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC
563 : (2020) 1 SCC (Cri) 767], while considering
somewhat similar submission of non-examination of
independent witnesses, while dealing with the offence
under the NDPS Act, in paras 15 and 16, this Court
observed and held as under : (SCC p. 568)
“15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC
521 : (2011) 1 SCC (Cri) 1191], relied on by the counsel
for the respondent State also supports the case of
the prosecution. In the aforesaid judgment, this
Court has held that merely because the prosecution
did not examine any independent witness would not
necessarily lead to a conclusion that the accused
42
2025:HHC:835was 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 on the actions and the documents
made by the police. At any rate, the court cannot
start with the presumption that the police
records are untrustworthy. As a proposition of
law, the presumption should be the other way
around. That official acts of the police have been
regularly performed is a wise principle of
presumption and recognised even by the
legislature.'”
33. 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 titled
Krishan Chand versus State of H.P.,2017 4 CriCC 531
3(iii)(d). It is by now well settled that prosecution case
cannot be disbelieved only because the independent
witnesses were not associated.”
34. This position was reiterated in Kallu Khan v. State
of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223,
43
2025:HHC:835
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..”
35. 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 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,
44
2025:HHC:835
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
material and not trivial one, that 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 fact 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 fact
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
45
2025:HHC:835witnesses may not be of much help. In such events,
the manipulation, if any, cannot be ruled out.”
Xxxx
22. A similar reiteration of law can be found in a very
recent judgment of the Coordinate Bench of this Court
in Cr. A. No. 202 of 2020, titled Dillo Begum v. State of
H.P., decided on 27.03.2024.”
36. Thus, in view of the binding precedents of this
Court and Hon’ble Supreme Court, the non-association of
independent witnesses is not fatal, and the prosecution 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.
37. The accused stated in his statement recorded
under Section 313 of Cr.P.C. that he was falsely implicated, and
the witnesses deposed against him because they were police
officials. No material was brought on record to show any
motive of the police officials to falsely depose against the
accused. It was laid down by the Hon’ble Supreme Court in
Kripal Singh v. State of Rajasthan, (2019) 5 SCC 646: (2019) 2
SCC (Cri) 680: 2019 SCC OnLine SC 207 that the testimonies of
the police officials cannot be ignored because they are police
officials. It was observed at page 656:
46
2025:HHC:835
“21. The submission of the learned Senior Counsel for
the appellant that recovery has not been proved by any
independent witness is of no substance for the reason
that in the absence of an independent witness to
support the recovery in substance cannot be ignored
unless proved to the contrary. There is no such legal
proposition that the evidence of police officials, unless
supported by an independent witness, is unworthy of
acceptance or the evidence of police officials can be
outrightly disregarded.”
38. Therefore, the learned Trial Court had rightly
accepted the testimonies of all the police officials.
39 The integrity of the case property has also been
established. The samples were drawn before the learned
Judicial Magistrate, First Class, Dalhousie, District Chamba,
H.P. and were sealed with the Court seal. The report of the
analysis (Ext.PY) shows that the sealed parcel bore three seals
of ‘Civil Judge cum Judicial Magistrate Dalhousie’, which were
found intact and tallied with the specimen seal sent by the
forwarding authority. This report shows that the case
property was intact, and there was no tampering with the
seals.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:
47
2025:HHC:835
“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 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.”
40. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
“It has also come on evidence that till the date the
parcels of the sample were received by the Chemical
Examiner, 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.”
41. 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 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:
48
2025:HHC:835
“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.”
49
2025:HHC:835
42. 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
50
2025:HHC:835Chemical 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)
43. Therefore, the prosecution version is to be
accepted as correct that the case property remained intact till
its analysis at FSL, Junga.
44. The prosecution had only produced the samples
before the Court, and the bulk parcel was not produced before
the Court. It was submitted that the case property was
disposed of as per orders of the Drug Destruction Committee.
Certificate of Destruction (Ext.PW-13/O) was produced on
record; however, no order of destruction of the case property
was produced before the learned Trial Court.
45. The Central Government issued a notification
under Section 52-A of the NDPS Act for the disposal of seized
narcotic drugs vide GSR 38 (E) dated 16.01.2015. Para -3 of the
notification provides that an Officer-in-charge of a Police
Station or any officer empowered under Section 53 of the
NDPS Act shall initiate action for disposal of narcotic drugs.
Para 4 provides the manner of disposal. Para-5 deals with the
Drug Disposal Committee, and Para 7 deals with the
51
2025:HHC:835
procedure to be followed by the Drug Disposal Committee
regarding the disposal of seized items. It provides that the
Committee shall examine the list to satisfy itself that the
requirement of Section 52-A of the NDPS Act has been
complied with. They shall endorse the necessary certificate,
examine and verify the weight and other details and record its
findings in each case.
46. In the present case, no such record was produced
before the Court. It was laid down inJitendra v. State of M.P.,
(2004) 10 SCC 562: 2004 SCC (Cri) 2028: 2003 SCC OnLine SC
1038 ,that where the case property was not produced before
the Court, the conviction of the accused could not be
sustained. It was observed:
“6. In our view, the view taken by the High Court is
unsustainable. In the trial, it was necessary for the
prosecution to establish by cogent evidence that the
alleged quantities of charas and ganja were seized from
the possession of the accused. The best evidence would
have been the seized materials, which ought to have
been produced during the trial and marked as material
objects. There is no explanation for this failure to
produce them. Mere oral evidence as to their features
and production of panchnama does not discharge the
heavy burden which lies on the prosecution,
particularly where the offence is punishable with a
stringent sentence as under the NDPS Act. In this case,
we notice that panchas have turned hostile, so the
52
2025:HHC:835panchnama is nothing but a document written by the
police officer concerned. The suggestion made by the
defence in the cross-examination is worthy of notice. It
was suggested to the prosecution witnesses that the
landlady of the house, in collusion with the police, had
lodged a false case only for evicting the accused from
the house in which they were living. Finally, we noticed
that the investigating officer was also not examined.
Against this background, to say that, despite the panch
witnesses having turned hostile, the non-examination
of the investigating officer and the non-production of
the seized drugs, the conviction under the NDPS Act
can still be sustained, is far-fetched.”
47. It was held in Noor Aga v. State of Punjab, (2008) 16
SCC 417: (2010) 3 SCC (Cri) 748: 2008 SCC OnLine SC 1026, that
the case property can be destroyed as per the order of the
competent Magistrate and the non-production of the case
property will create a serious dent in the prosecution case. It
was observed:
“92. Omission on the part of the prosecution to
produce evidence in this behalf must be linked with a
second important piece of physical evidence that the
bulk quantity of heroin allegedly recovered
indisputably has also not been produced in court. The
respondents contended that the same had been
destroyed. However, on what authority it was done is
not clear. The law requires that such an authority must
flow from an order passed by the Magistrate. Such an order
whereupon reliance has been placed is Exhibit PJ; on a
bare perusal whereof, it is apparent that at no point of
time had any prayer been made for the destruction of
the said goods or disposal thereof otherwise. What was
necessary was a certificate envisaged under Section
53
2025:HHC:835110(1-B) of the 1962 Act. An order was required to be
passed under the aforementioned provision providing
for authentication, inventory, etc. The same does not
contain within its mandate any direction as regards
destruction.
93. The only course of action the prosecution should
have resorted to is to obtain an order from the
competent court of the Magistrate as envisaged under
Section 52-A of the Act in terms whereof the officer
empowered under Section 53 upon preparation of an
inventory of narcotic drugs containing such details
relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying
particulars of the narcotic drugs or psychotropic
substances or the packing in which they are packed,
country of origin and other particulars as he may
consider relevant to the identity of the narcotic drugs
or psychotropic substances in any proceedings
thereunder make an application for any or all of the
following purposes:
“(a) Certifying correctness of the inventory so
prepared; or
(b) Taking, in the presence of such Magistrate,
photographs of substances and certifying such
photographs as true or
(c) Allowing to draw representative samples of such
drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list
of samples so drawn.”
Sub-section (3) of Section 52-A of the Act provides that
as and when such an application is made, the
Magistrate may, as soon as may be, allow the
application. The reason wherefore such a provision is
made would be evident from sub-section (4) of Section
52-A, which reads as follows:
“52-A. Disposal of seized narcotic drugs and
psychotropic substances.–***
54
2025:HHC:835(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1972) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act shall treat the
inventory, the photographs of narcotic drugs or
psychotropic substances and any list of samples
drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such
offence.”
Concededly, neither was any such application filed nor
was any such order passed. Even no notice has been
given to the accused before such alleged destruction.
94. We must also notice a distinction between Section
110(1-B) of the 1962 Act and Section 52-A(2) of the Act
as sub-section (4) thereof, namely, that the former
does not contain any provision like sub-section (4) of
Section 52-A. It is of some importance to notice that
Para 3.9 of the Standing Order requires pre-trial
disposal of drugs to be obtained in terms of Section 52-
A of the Act. Exhibit PJ can be treated as nothing other
than an order of authentication as it is a certificate
under Section 110(1-B) of the 1962 Act, as the aspect of
disposal clearly provided for under Section 52-A of the
Act is not alluded to. The High Court, in its judgment,
purported to have relied upon an assertion made by the
prosecution with regard to the prevalence of a
purported general practice adopted by the Customs
Department to obtain a certificate in terms of the said
provision prior to the destruction of case property,
stating:
“To a specific query put to Mr Guglani by the Court
with regard to the aforesaid arguments, he fairly
states that the general practice adopted by the
Customs Department is that before destroying the
case property, a certificate is obtained under Section
110(1-B) of the Customs Act. He states that in this
regard, a sample as per the provisions contained in
sub-clause (c) to clause (1-B) is also drawn for the
55
2025:HHC:835purposes of certification of correctness so that at a
later stage, the identity of the case property is not
disputed.
Maybe, in my view, some irregularities were
committed in this case by the Customs Department
while obtaining the order, Exhibit PJ from the court
for the reason that if the case property was to be
destroyed, at least a notice should have been given
to the accused on the application moved under
Section 110(1-B) of the Customs Act or at least a
specific request in this regard should have been
made in the application, but at the same time, the
aforesaid irregularity cannot be said to be a vital
flaw in the case of the prosecution from which the
appellant can derive any benefit, especially under
the circumstances when confessional statements
made by the appellant are held to be made
voluntarily as observed by me hereinabove….
Similarly, non-production of cardboard cartons is
also not fatal to the prosecution.”
The question which arises for our consideration is as to
whether it is permissible to do so. Evidently, it is not.
Firstly, because taking recourse to the purported
general practice adopted by the Customs Department is
not envisaged in regard to prosecution under the Act.
Secondly, no such general practice has been spoken of
by any witness. A statement made at the Bar as regards
the existence of such a purported general practice, to
say the least, cannot be a substitute of evidence
whereupon only the court could rely. Thirdly, the High
Court failed to take into consideration that a certificate
issued under Section 110(1-B) of the 1962 Act can be
recorded as a certificate of authentication and no more;
authority for disposal would require a clear direction of
the court in terms of Section 52-A of the Act. Fourthly,
the High Court failed and/or neglected to consider that
physical evidence, being the property of the court and
56
2025:HHC:835
being central to the trial, must be treated and disposed
of in strict compliance with the law.
95. The High Court proceeded on the basis that the
non-production of physical evidence is not fatal to the
prosecution case, but the fact remains that a
cumulative view with respect to the discrepancies in
physical evidence creates an overarching inference
which dents the credibility of the prosecution. Even for
the said purpose, the retracted confession on the part
of the accused could not have been taken recourse to.”
49. It was held in Ashok v. State of M.P., (2011) 5 SCC 123:
(2011) 2 SCC (Cri) 547: 2011 SCC OnLine SC 570 that in the event
of non-production of the case property before the Court, the
report of the Forensic Analysis cannot be connected to the
case. It was observed:
“12. Last but not least, the alleged narcotic powder
seized from the possession of the accused, including
the appellant, was never produced before the trial court
as a material exhibit, and once again, there is no
explanation for its non-production. There is, thus, no
evidence to connect the forensic report with the
substance that was seized from the possession of the
appellant or the other accused.”
50. It was held in Vijay Jain v. State of M.P., (2013) 14
SCC 527: (2014) 4 SCC (Cri) 276: 2013 SCC OnLine SC 500that
non-production of the case property will not establish the
seizure from the accused. It was observed:
“10. On the other hand, on a reading of this Court’s
judgment in Jitendra case [Jitendra v. State of M.P.,
57
2025:HHC:835(2004) 10 SCC 562: 2004 SCC (Cri) 2028], we find that
this Court has taken the view that in the trial for an
offence under the NDPS Act, it was necessary for the
prosecution to establish by cogent evidence that the
alleged quantities of the contraband goods were seized
from the possession of the accused and the best
evidence to prove this fact is to produce during the
trial, the seized materials as material objects and where
the contraband materials alleged to have been seized
are not produced and there is no explanation for the
failure to produce the contraband materials by the
prosecution, mere oral evidence that the materials
were seized from the accused would not be sufficient to
make out an offence under the NDPS Act particularly
when the panch witnesses have turned hostile. Again,
in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123:(2011) 2
SCC (Cri) 547] this Court found that the alleged narcotic
powder seized from the possession of the accused was
not produced before the trial court as a material exhibit
and there was no explanation for its non-production
and this Court held that there was, therefore, no
evidence to connect the forensic report with the
substance that was seized from the possession of the
appellant.
Xxxx
12. We are thus of the view that as the prosecution has
not produced the brown sugar before the Court and has
also not offered any explanation for non-production of
the brown sugar alleged to have been seized from the
appellants and as the evidence of the witnesses (PW 2
and PW 3) to the seizure of the materials does not
establish the seizure of the brown sugar from the
possession of the appellants, the judgment of the trial
court convicting the appellants and the judgment of the
High Court maintaining the conviction are not
sustainable.
58
2025:HHC:835
51. It was held in Gorakh Nath Prasad v. State of Bihar,
(2018) 2 SCC 305: (2018) 1 SCC (Cri) 711: 2017 SCC OnLine SC
1505that where the case property was not produced before the
Court, the prosecution case was not proved. It was observed:
“6. In the facts of the present case, the independent
witnesses with regard to the search and seizure, PW 2
and PW 3, having turned hostile, deposing that their
signatures were obtained on blank paper at the police
station, the mere fact of an FSL Report (Ext. 8), being
available is no confirmation either of the seizure or
that what was seized was ganja, in the absence of the
production of the seized item in court as an exhibit. The
non-production of the seized material is therefore
considered fatal to the prosecution case. The issue
whether there has been compliance with Sections 42
and 50 of the NDPS Act loses its relevance in the facts
of the case.
7. The remaining prosecution witnesses being police
officers only, it will not be safe to rely upon their
testimony alone, which in any event cannot be
sufficient evidence by itself either with regard to
recovery or the seized material being ganja. No
explanation has also been furnished by the prosecution
for the non-production of the ganja as an exhibit in the
trial. The benefit of the doubt will, therefore, have to be
given to the appellant and in support of which learned
Senior Counsel Shri Rai has relied upon Jitendra v. State
of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004
SCC (Cri) 2028] and reiterated in Ashok v. State of
M.P. [Ashok v. State of M.P., (2011) 5 SCC 123: (2011) 2 SCC
(Cri) 547] as follows: (SCC pp. 126-27, paras 12-13)
“12. Last but not least, the alleged narcotic powder
seized from the possession of the accused, including
the appellant, was never produced before the trial
59
2025:HHC:835court as a material exhibit, and once again, there is
no explanation for its non-production. There is,
thus, no evidence to connect the forensic report
with the substance that was seized from the
possession of the appellant or the other accused.
13. It may be noted here that in Jitendra v. State of
M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004
SCC (Cri) 2028], on similar facts, this Court held that
the material placed on record by the prosecution did
not bring home the charge against the accused
beyond reasonable doubt and it would be unsafe to
maintain their conviction on that basis.
In Jitendra [Jitendra v. State of M.P., (2004) 10 SCC
562: 2004 SCC (Cri) 2028], the Court observed and
held as under: (SCC pp. 564-65, paras 5-6)
‘5. The evidence to prove that charas and ganja
were recovered from the possession of the
accused consisted of the evidence of the police
officers and the panch witnesses. The panch
witnesses turned hostile. Thus, we find that apart
from the testimony of Rajendra Pathak (PW 7),
Angad Singh (PW 8) and Sub-Inspector D.J. Rai
(PW 6), there is no independent witness as to the
recovery of the drugs from the possession of the
accused. The charas and ganja alleged to have
been seized from the possession of the accused
were not even produced before the trial court so
as to connect them with the samples sent to the
forensic science laboratory. There is no material
produced in the trial, apart from the interested
testimony of the police officers, to show that the
charas and ganja were seized from the
possession of the accused or that the samples
sent to the forensic science laboratory were taken
from the drugs seized from the possession of the
accused. …
6. … The best evidence would have been the
seized materials, which ought to have been
60
2025:HHC:835
produced during the trial and marked as material
objects. There is no explanation for this failure to
produce them. Mere oral evidence as to their
features and production of panchnama does not
discharge the heavy burden which lies on the
prosecution, particularly where the offence is
punishable with a stringent sentence as under
the NDPS Act. In this case, we notice that panchas
have turned hostile, so the panchnama is nothing
but a document written by the police officer
concerned.”
52. It was held in Union of India v. Jarooparam, (2018)
4 SCC 334: (2018) 2 SCC (Cri) 465: 2018 SCC OnLine SC 204that
where no application for the destruction of the case property
was filed, and the case property was not produced before the
court, the prosecution case cannot be relied upon. It was
observed:
“9. From the above proceedings, it is crystal clear that
the remaining seized stuff was not disposed of by the
Executive Magistrate. The contraband stuff, as well as
the samples sealed as usual, were handed over
physically to the Investigating Officer Harvinder Singh
(PW 6). Also, the trial court, in its judgment,
specifically passed instructions to preserve the seized
property and record of the case in safe custody, as the
co-accused Bhanwarlal was absconding. The trial court
more specifically instructed to put a note with red ink
on the front page of the record for its safe custody. In
such a situation, it assumes important that there was
nothing on record to show as to what happened to the
remaining bulk quantity of contraband. The absence of
a proper explanation from the prosecution
significantly undermines its case and reduces the
61
2025:HHC:835evidentiary value of the statements made by the
witnesses.
10. Omission on the part of the prosecution to produce
the bulk quantity of seized opium would create doubt in
the mind of the Court on the genuineness of the
samples drawn and marked as A, B, C, D, E, F from the
allegedly seized contraband. However, the simple
argument that the same had been destroyed cannot be
accepted as it is not clear that on what authority it was
done. The law requires that such an authority must
flow from an order passed by the Magistrate. On a bare
perusal of the record, it is apparent that at no point in
time, any prayer had been made by the prosecution for
the destruction of the said opium or disposal thereof
otherwise. The only course of action the prosecution
should have resorted to for its disposal is to obtain an
order from the competent court of Magistrate as
envisaged under Section 52-A of the Act. It is explicitly
made under the Act that as and when such an
application is made, the Magistrate may, as soon as
may be, allow the application (see also Noor Aga v. State
of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417:
(2010) 3 SCC (Cri) 748] ).
11. There is no denial of the fact that the prosecution
has not filed any such application for
disposal/destruction of the allegedly seized bulk
quantity of contraband material, nor was any such
order passed by the Magistrate. Even no notice has
been given to the accused before such alleged
destruction/disposal. It is also pertinent here to
mention that the trial court appears to have believed
the prosecution story in haste and awarded conviction
to the respondent without warranting the production
of a bulk quantity of contraband. But, the High Court
committed no error in dealing with this aspect of the
case and disbelieving the prosecution story by arriving
at the conclusion that at the trial, the bulk quantities of
62
2025:HHC:835contraband were not exhibited to the witnesses at the
time of adducing evidence.”
53. This position was reiterated in Mangilal v. State of
M.P., 2023 SCC OnLine SC 862, wherein it was observed:
“8. Before any proposed disposal/destruction mandate
of Section 52A of the NPDS Act is required to be duly
complied with, starting with an application to that
effect. A Court should be satisfied with such compliance
while deciding the case. The onus is entirely on the
prosecution in a given case to satisfy the Court when
such an issue arises for consideration. Production of
seized material is a factor to establish seizure followed
by recovery. One has to remember that the provisions
of the NDPS Act are both stringent and rigorous, and
therefore, the burden heavily lies on the prosecution.
Non-production of physical evidence would lead to a
negative inference within the meaning of
Section 114(g) of the Indian Evidence Act,
1872 (hereinafter referred to as the Evidence Act). The
procedure contemplated through the notification has
an element of fair play, such as the deposit of the seal,
numbering the containers seriatim wise and keeping
them in lots preceded by compliance with the
procedure for drawing samples….
Xxxxx
The record would also indicate that an order was
passed by the trial Judge permitting the prosecution to
keep the seized materials within the police station, to
be produced at a later point in time. This itself is a
sufficient indication that the mandate of Section 52A
has not been followed. There is no explanation either
for the non-production of the seized materials or the
manner in which they are disposed of. No order passed
by the Magistrate allowing the application, if any, filed
under Section 52A of the NDPS Act. P.W.10, Executive
Magistrate, has deposed to the fact that he did not pass
63
2025:HHC:835any order for the disposal of the narcotics substance
allegedly seized. Similarly, P.W.12, who is in
chargeof Malkhana, also did not remember any such
order having been passed. On the issue of disposing of
narcotic substances in derogation of the compliance
contained in Section 52A of the NDPS Act”
54. In the present case, no person has deposed that
any application for the destruction of the case property was
filed. No report of the compliance of the procedure laid down
by the Central Government was filed; therefore, it cannot be
said that the prosecution had a valid reason for the non-
production of the case property before the learned Trial Court.
55. The prosecution has only produced two samples
before the learned Trial Court. One of the samples was
analysed in the laboratory. The weight of the sample was 26
and 26 grams; therefore, the prosecution has only produced
52 grams of the case property before the learned Trial Court,
which is a small quantity. Hence, the prosecution case is only
established regarding the possession of a small quantity of the
charas/cannabis.
56. The attention of the learned Trial Court was not
brought to the judgments of the Hon’ble Supreme Court,
wherein it was held that the production of the case property is
64
2025:HHC:835
essential, and in the absence of the same, the accused cannot
be convicted of the possession of the charas. Therefore, the
judgment passed by the learned Trial Court convicting the
accused for the possession of the commercial quantity of the
charas/cannabis cannot be sustained.
57. In view of the above, the present appeal is partly
allowed, and the judgment and order passed by the learned
Trial Court are ordered to be set aside. The accused is
convicted of the commission of an offence punishable under
Section 20(b)(ii)(A) of the NDPS Act for possession of 52
grams of charas and is sentenced to undergo rigorous
imprisonment for one year and to pay a fine of ₹10,000/- and
in default of payment of fine to further undergo rigorous
imprisonment of two months for the commission of an
offence punishable under Section 20(b)(ii)(A) of the NDPS
Act. The convict is entitled to the benefit of set off regarding
the imprisonment already undergone by him as per Section
428 of Cr.P.C. (now substituted by Section 468 of BNSS). The
modified warrant of sentence be issued accordingly.
65
2025:HHC:835
58. The record of the learned Trial Court be returned
with a copy of this order for the information of the learned
Trial Court.
59. Appeal stands disposed of alongwith pending
miscellaneous application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Rakesh Kainthla)
Judge
6th January, 2025
(ravinder)
Digitally signed by KARAN SINGH GULERIA
KARAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH,
OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA,
Phone=e5d61f6599be410af7c5f0b57379e225878f23c9e
a27b281046985b3b1fe0b75, PostalCode=171001,
SINGH S=Himachal Pradesh,
SERIALNUMBER=f72cf9165791d55ec939375291962d0
d90d094876bd59591426c0b1ce651f01f, CN=KARAN
SINGH GULERIA
GULERIA Reason: I am the author of this document
Location:
Date: 2025-01-06 17:42:58