Himachal Pradesh High Court
Reserved On: 08.08.2025 vs State Of H.P on 26 August, 2025
2025:HHC:28738
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 540 of 2024
Reserved on: 08.08.2025
.
Date of Decision: 26.08.2025
Yashpal Thakur. ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Appellant : M/s. Manoj Pathak and Harsh,
Advocates.
For the Respondent : Mr. Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment of
conviction and order of sentence dated 23.08.2024, passed by
learned Special Judge (Forests) Shimla, District Shimla, H.P.
(learned Trial Court) vide which the appellant (accused before the
learned Trial Court) was convicted of the commission of an offence
punishable under Section 21 of Narcotic Drugs and Psychotropic
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Substances Act (in short ‘NDPS Act‘) and was sentenced to undergo
rigorous imprisonment for four years, pay a fine of ₹ 25,000/- and
.
in default of payment of fine to undergo further simple
imprisonment for six months for the commission of aforesaid
offence. (Parties shall hereinafter be referred to in the same manner as
they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan before the learned Trial
Court against the accused for the commission of an offence
punishable under Section 21 of the NDPS Act. It was asserted that
HHC Lalit Kumar (PW-12), HHC Sunil Kumar, Rahul (PW-9),
Constable Bhuvnesh Kumar and Constable Dheeraj (PW-6) had
gone towards Sankat Mochan, Tara Devi, Shoghi under the
supervision of ASI Ambi Lal on 22.03.2021. They stopped a bus
bearing registration No. PB32P-3661 for checking at 4:00 p.m. at
Shoghi Naka. The accused was occupying seat No. 19. He threw a
plastic wrapper of Lays after seeing the police. The police became
suspicious and associated conductor Nitish Kumar (PW-7) and
driver Paramjeet. The accused identified himself as Yashpal
Thakur. The police checked the wrapper and found a transparent
pouch containing a light brown substance and another plastic
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pouch containing seven syringes of 1Ml each. The police checked
the substance with the help of a Drug Detection Kit and found it to
.
be Heroin. The police weighed the heroin and found its weight to be
10.50 grams. Heroin and syringes were put in the wrapper in the
same manner in which they were recovered. The wrapper was put
in a cloth parcel, and the parcel was sealed with eight seal
impressions of seal ‘U’. Sample seal (Ext.P-2/PW-7) was put on a
separate piece of cloth. NCB-I Form (Ext.P-3/PW-10) was
prepared, and the seal impression was put on the Form. The seal
was handed over to Nitish Kumar (PW-7) after its use. The parcel
was seized vide memo (Ext.P-1/PW-7). Photographs were taken,
and the proceedings were video recorded. Rukka (Ext. P-1/PW-10)
was prepared and sent to the Police Station through Constable
Rahul (PW-9). F.I.R. (Ext.P-7/PW-10) was registered in the Police
Station. HC Ashwani Kumar (PW-13) was directed to carry out the
investigation. He visited the spot. HC Lalit Kumar (PW-12) handed
over the case property, documents and the custody of the accused
to HC Ashwani Kumar (PW-13). Inventory (Ext.P-1/PW-12) was
prepared. HC Ashwani Kumar prepared the spot map
(Ext.P-1/PW-13) and recorded the statement of witnesses as per
their version. He arrested the accused vide memo (Ext.P-2/PW-
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13). He produced the case file and case property before Lakshman
Kumar (PW-10), who re-sealed the parcel with three seal
.
impressions of seal ‘O’. He obtained the sample seal (Ext.P-2/PW-
10) on a separate piece of cloth. He filled columns No. 9 to 11 of the
NCB-I form and put the seal impression on the Form. He issued a
re-seal certificate (Ext.P-4/PW-10). He handed over the case
property to MHC Vinod Bhagta, who deposited the same in
Malkhana.
HC Ashwani Kumar (PW-13) filed an application
(Ext.P-6/PW-10) in the Court of the learned Additional Chief
Judicial Magistrate, Court No.2, Shimla, under Section 52A of the
NDPS Act for the certification of inventory. Learned Additional
Chief Judicial Magistrate, Court No.2, Shimla issued a certificate
(Ext.P-19/PW-13) regarding the correctness of the inventory and
passed an order (Ext.P-18/PW-13). Photographs of the inventory
proceedings (Ext.P-8/PW-13 to Ext.P-17/PW-13) were taken. The
parcel was sealed with the Court seal. Sample seal (Ext.P-7/PW-13)
was taken on a separate piece of cloth. Special Report (Ext.P-
1/PW-1) was handed over to LHC Archna (PW-2), who delivered it
to Sushil Kumar, Additional Superintendent of Police (PW-1).
Sushil Kumar made an endorsement on the Special Report and
handed it over to Constable Sandeep Kumar (PW-3), who made an
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entry at Sl. No. 21 (Ext.P-2/PW-1) and retained the special report
on record. Constable Sahil (PW-4) carried the case property,
.
sample seals, and documents for analysis to the State Forensic
Science Laboratory (SFSL), Junga, H.P. The result of analysis
(Ext.P-21/PW-13) shows that the exhibit stated as heroin is a
sample of Diacetyl morphine (Heroin). Statements of the
remaining witnesses were recorded as per their version, and after
completion of the investigation, the challan was prepared and
presented before the learned Trial Court.
3. Learned Trial Court charged the accused with the
commission of an offence punishable under Section 21 of the NDPS
Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined 13 witnesses to prove its
case. Sushil Kumar Sharma (PW-1) was posted as Additional
Superintendent of Police, Shimla, to whom the Special Report was
handed over. LHC Archana (PW-2) carried the Special Report to
the Additional Superintendent of Police. Constable Sandeep Kumar
(PW-3) was posted as a Reader, who made an entry in the Special
Report Register. Constable Sahil (PW-4) carried the case property
to SFSL, Junga. Constable Raman Deep (PW-5) brought the case
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property and the result of the analysis from the SFSL, Junga.
Constable Dheeraj (PW-6) proved the entry in the daily diary.
.
Nitish Kumar (PW-7) and Constable Rahul (PW-9) are the
witnesses to the recovery. Raman Deep Singh (PW-8) proved the
duty roster. Lakshman Kumar (PW-10) resealed the case property.
Constable Hamesh (PW-11) proved the entries in the daily diary.
HC Lalit Kumar (PW-12) effected the recovery. HC Ashwani Kumar
5. to
(PW-13) conducted the investigation.
The accused, in his statement recorded under Section
313 of Cr.P.C., admitted that he had disclosed his name as Yashpal
to the police. He denied the rest of the prosecution’s case. He
stated that he was travelling on the bus. One person came near his
seat and conducted his search; however, nothing was recovered
during the search. He did not produce any evidence in defence.
6. Learned Trial Court held that the testimonies of the
prosecution witnesses corroborated each other. There was nothing
to show that witnesses had any enmity with the accused. The
minor contradictions in the statements of the witnesses were not
sufficient to discard the prosecution’s case. The integrity of the
case property was established. Hence, the accused was convicted
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of the commission of an offence punishable under Section 21 of the
NDPS Act and was sentenced to undergo rigorous imprisonment
.
for four years, pay a fine of ₹25,000/- and, in default of payment
of fine, to undergo simple imprisonment of six months.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused has filed the present appeal,
asserting that the learned Trial Court erred in convicting and
sentencing the accused.
contraband. to
The accused had no concern with the
Learned Trial Court brushed aside the material
contradictions in the statements prosecution of witnesses. There
was non-compliance with various provisions of NDPS Act.
Therefore, it was prayed that the present appeal be allowed and the
judgment and order passed by the learned Trial Court be set aside.
8. I have heard M/s Manoj and Harsh, learned counsel for
the appellant and Mr. Prashant Sen, learned Deputy Advocate
General, for the respondent/State.
9. Mr. Manoj Pathak, learned counsel for the appellant,
submitted that the learned Trial Court erred in convicting and
sentencing the accused. Statements of the prosecution witnesses
contradicted each other on material particulars. The prosecution
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examined only the conductor and did not examine the driver of the
bus. Hence, an adverse inference should be drawn against the
.
prosecution. The integrity of the case property was not
established; therefore, he prayed that the present appeal be
allowed and the judgment and order passed by the learned Trial
Court be set aside. He submitted in the alternative that the learned
Trial Court has imposed a disproportionate sentence without any
justification. Hence, he prayed in the alternative that the sentence
imposed upon the appellant be reduced.
10. Mr. Prashant Sen, learned Deputy Advocate General, for
the respondent/State, submitted that the learned Trial Court had
rightly held that minor contradictions are insufficient to discard
the prosecution case. The incident occurred on 22.03.2021, and the
witnesses made the statements in the year 2024. The
contradictions were bound to come with time due to the failure of
memory and could not have been used to discard the prosecution’s
case. Heroin is affecting the young generation adversely, and the
learned Trial Court had rightly taken a strict view in the matter.
Therefore, he prayed that the present appeal be dismissed.
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11 I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
.
12. Nitish Kumar (PW-7) stated that he and Paramjeet
driver, were coming from Jalandhar to Shimla in a bus bearing
registration No. PB32P-3661. The police stopped the bus at Shoghi
Barrier. The police started searching the luggage of the passengers.
When they reached near seat No. 19, a passenger threw something
near his feet. The police picked it up and found it to be a wrapper of
Lays chips. A brown substance wrapped in a plastic pouch and two
syringes were found inside the packet. The police said that the
substance was heroin. The police weighed the heroin and found its
weight to be 10.50 grams. The police sealed the contraband along
with the packet in a parcel and seized the parcel. He identified his
signatures on the memo. He admitted in his cross-examination
that long-distance buses do not stop at the transit. One person was
wearing a uniform, and the remaining were in civil dress. He could
not tell the number of police officials present outside the bus. He
admitted that he had told the police that one police official boarded
the bus from the front door and another police official boarded
from the rear door. 20-22 passengers were present in the bus.
There were two female passengers in the bus, but no female
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constable was inside the bus. He volunteered to say that the lady
constables were standing outside. The police did not give their
.
search to any person. He admitted that he had mentioned seven
syringes in his statement recorded under Section 161 Cr.P.C. He
could not produce the seal before the Court. The photographs
were taken on the spot. Proceedings continued for five hours. He
denied that no recovery was effected.
13.
This witness has supported the prosecution’s case.
There is nothing in his cross-examination to show that he has
enmity with the accused or any motive to falsely depose against the
accused. It was submitted that there were major contradictions in
his statement. He has stated to the police in his statement
recorded under Section 161 Cr.P.C. that one police official boarded
the front door of the bus and one police official boarded from the
rear door, whereas he stated in the Court that two police officials
boarded the bus from the front door and two officials boarded the
bus from the rear door. Further, he stated before the Court that two
syringes were recovered, whereas he had stated before the police
that seven syringes were recovered. These contradictions are not
sufficient to discard the testimony of this witness. It was rightly
pointed out that the incident had taken place on 22.03.2021,
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whereas this witness was making his statement on 10.01.2024 after
the lapse of about three years. Therefore, contradictions were
.
bound to come with time due to failure of memory. It was laid down
by the Hon’ble Supreme Court in Goverdhan v. State of Chhattisgarh
(2025) SCC Online SC 69 that the discrepancies are not sufficient to
discard the prosecution case unless they are material. It was
observed: –
“51. As we proceed to examine this crucial aspect, it may be
apposite to keep in mind certain observations made by this
Court relating to discrepancies in the account ofeyewitnesses.
In Leela Ram (Dead) through Duli Chand v. State of
Haryana, (1999) 9 SCC 525, it was observed as follows:
“9. Be it noted that the High Court is within its
jurisdiction, being the first appellate court to
reappraise the evidence, but the discrepancies found in
the ocular account of two witnesses, unless they are so
vital, cannot affect the credibility of the evidence ofthe witnesses. There are bound to be some
discrepancies between the narrations of differentwitnesses when they speak on details, and unless the
contradictions are of a material dimension, the sameshould not be used to jettison the evidence in its
entirety. Incidentally, corroboration of evidence with
mathematical niceties cannot be expected in criminal
cases. Minor embellishment, there may be, but
variations by reason thereof should not render the
evidence of eyewitnesses unbelievable. Trivial
discrepancies ought not to obliterate otherwise
acceptable evidence. In this context, reference may be
made to the decision of this Court in State of U.P. v. M.K.::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In para
10 of the Report, this Court observed: (SCC pp. 514-15)
’10. While appreciating the evidence of a witness,
the approach must be whether the evidence of.
the witness, read as a whole, appears to have a
ring of truth. Once that impression is formed, it
is undoubtedly necessary for the court to
scrutinise the evidence more particularlykeeping 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 givenby the witness and whether the earlier
evaluation of the evidence is shaken as to render
it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case,
r a hypertechnical approach by taking sentencestorn out of context here or there from the
evidence, attaching importance to some
technical error committed by the investigating
officer, not going to the root of the matter,would not ordinarily permit rejection of the
evidence as a whole. If the court before whom
the witness gives evidence had the opportunityto form the opinion about the general tenor of
evidence given by the witness, the appellatecourt which had not this benefit will have to
attach due weight to the appreciation of
evidence by the trial court and unless there arereasons 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. Even honest and truthful
witnesses may differ in some details unrelated to
the main incident because the power of
observation, retention and reproduction differ
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10. In a very recent decision in Rammi v. State of
M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26], this Court
observed: (SCC p. 656, para 24)
’24. When an eyewitness is examined at length,.
it is quite possible for him to make some
discrepancies. No true witness can escape from
making some discrepant details. Perhaps an
untrue witness who is well tutored cansuccessfully make his testimony totally non-
discrepant. But courts should bear in mind that
it is only when discrepancies in the evidence of a
witness are so incompatible with the credibilityof his version that the court is justified in
jettisoning his evidence. But too serious a view
to be adopted on mere variations falling in the
narration of an incident (either as between the
r evidence of two witnesses or as between twostatements of the same witness) is an unrealistic
approach for judicial scrutiny.’
This Court further observed: (SCC pp. 656-57, paras
25-27)’25. It is a common practice in trial courts to
make out contradictions from the previous
statement of a witness to confront him duringcross-examination. Merely because there is an
inconsistency in evidence, it is not sufficient toimpair the credit of the witness. No doubt,
Section 155 of the Evidence Act provides scope
for impeaching the credit of a witness by proofof an inconsistent former statement. But a
reading of the section would indicate that all
inconsistent statements are not sufficient to
impeach the credit of the witness. The material
portion of the section is extracted below:
“155. Impeaching the credit of a
witness.–The credit of a witness may be
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2025:HHC:28738adverse party, or, with the consent of the
court, by the party who calls him–
(1)-(2) ***
.
(3) by proof of former statements
inconsistent with any part of his evidence
which is liable to be contradicted;”
26. A former statement, though seemingly
inconsistent with the evidence, need not
necessarily be sufficient to amount to a
contradiction. Only such an inconsistent
statement, which is liable to be “contradicted”,
would affect the credit of the witness. Section
145 of the Evidence Act also enables the cross-
examiner to use any former statement of the
witness, but it cautions that if it is intended to
r “contradict” the witness, the cross-examiner is
enjoined to comply with the formality prescribed
therein. Section 162 of the Code also permits the
cross-examiner to use the previous statement of
the witness (recorded under Section 161 of the
Code) for the only a limited purpose, i.e. to
“contradict” the witness.
27. To contradict a witness, therefore, must be to
discredit the particular version of the witness.
Unless the former statement has the potency to
discredit the present statement, even if the latter
is at variance with the former to some extent, it
would not be helpful to contradict that witness
(vide Tahsildar Singh v. State of U.P. [AIR 1959 SC
1012: 1959 Cri LJ 1231]).”
52. Further, this Court also cautioned about attaching too
much importance to minor discrepancies of the evidence of
the witnesses in Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat (1983) 3 SCC 217 as follows:
“5. … We do not consider it appropriate or permissible
to enter upon a reappraisal or reappreciation of the
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2025:HHC:28738painstakingly highlighted by the learned counsel for
the appellant. Overmuch importance cannot be
attached to minor discrepancies. The reasons are
obvious:
.
(1) By and large, a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a videotape is
replayed on the mental screen.
(2) Ordinarily, it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence, which so often has
an element of surprise. The mental faculties,therefore, cannot be expected to be attuned to
absorb the details.
(3) The powers of observation differ from person
r to person. What one may notice, another may
not. An object or movement might emboss itsimage on one person’s mind, whereas it might
go unnoticed on the part of another.
(4) By and large, people cannot accurately recall
a conversation and reproduce the very words
used by them or heard by them. They can only
recall the main purport of the conversation. It isunrealistic to expect a witness to be a human
tape recorder.
(5) In regard to the exact time of an incident or
the time duration of an occurrence, usually,
people make their estimates by guesswork onthe spur of the moment at the time of
interrogation. And one cannot expect people to
make very precise or reliable estimates in such
matters. Again, it depends on the time sense of
individuals, which varies from person to person.
(6) Ordinarily, a witness cannot be expected to
recall accurately the sequence of events which
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2025:HHC:28738span. A witness is liable to get confused or mixed
up when interrogated later on.
(7) A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the.
piercing cross-examination made by the counsel
and, out of nervousness, mix up facts, get
confused regarding the sequence of events, or
fill up details from imagination on the spur of
the moment. The subconscious mind of the
witness sometimes so operates on account of the
fear of looking foolish or being disbelieved,
though the witness is giving a truthful and
honest account of the occurrence witnessed by
him–perhaps it is a sort of psychological
defence mechanism activated on the spur of the
moment.”
53. To the same effect, it was also observed
in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:
“13. … The court, while appreciating the evidence,
must not attach undue importance to minor
discrepancies. The discrepancies which do not shakethe basic version of the prosecution’s case may be
discarded. The discrepancies which are due to normal
errors of perception or observation should not be givenimportance. The errors due to lapse of memory may be
given due allowance. The court, by calling into aid itsvast experience of men and matters in different cases,
must evaluate the entire material on record by
excluding the exaggerated version given by anywitness. When a doubt arises in respect of certain facts
alleged by such a witness, the proper course is to
ignore that fact only unless it goes to the root of the
matter to demolish the entire prosecution story. The
witnesses nowadays go on adding embellishments to
their version, perhaps for fear that their testimony
being rejected by the court. The courts, however,
should not disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy.
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2025:HHC:28738Jaganmohan Reddy, J. speaking for this Court
in Sohrab v. State of M.P. [(1972) 3 SCC 751: 1972 SCC
(Cri) 819] observed: [SCC p. 756, para 8: SCC (Cri) p.
824, para 8]
.
‘8. … This Court has held that falsus in uno,
falsus in omnibus is not a sound rule for the
reason that hardly one comes across a witness
whose evidence does not contain a grain of
untruth or, at any rate, exaggeration,
embroideries or embellishments. In most cases,
the witnesses when asked about details venture
to give some answer, not necessarily true or
relevant for fear that their evidence may not be
accepted in respect of the main incident which
they have witnessed but that is not to say that
their evidence as to the salient features of the
r case after cautious scrutiny cannot be
considered….'”
14. The number of people who boarded the bus and the
number of syringes recovered are the matters of detail which do
not affect the core of the prosecution case. Hence, his testimony
cannot be discarded due to these two contradictions.
15. It was submitted that the driver of the bus was not
examined, and an adverse inference should be drawn against the
prosecution. This submission cannot be accepted. The record
shows that Pramjeet was given up as being repetitive. 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
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2025:HHC:28738obliged to examine all the witnesses and e can give the respective
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 are 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
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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 fairly. He can interview the witness
beforehand to enable him to know well in advance the stand
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:
“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 prosecutorhonestly 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], KrishnaIyer 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].
16. It was laid down by the Hon’ble Supreme Court in Pohlu
v. State of Haryana, (2005) 10 SCC 196, 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-
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examination of other witnesses will not make the testimony
doubtful. It was observed: –
.
“[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 eye-witnesses named in the FIR,
namely, Chander and Sita Ram, were not examined by theprosecution. Dharamvir, son of Sukhdei, was also not
examined by the prosecution, though he was a material
witness, being an injured eyewitness, having witnessed the
assault that took place in the house of Sukhdei, PW 2. It istrue that it is not necessary for the prosecution to multiply
witnesses if it prefers to rely upon the evidence of
eyewitnesses examined by it, which it considers sufficient to
prove the case of the prosecution. However, the intrinsicworth 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 eye witnesses,
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. ”
17. This position was reiterated in Rohtash vs. State of
Haryana 2013 (14) SCC 434, 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:
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,::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738in Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954 SC
31, has examined the aforesaid issue and held, that as a
general rule, all witnesses must be called upon to testify 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, 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. the State of U.P., AIR 1965 SC 202, 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 Cr. P.C.
(See also: Bir Singh & Ors. vs. State of U.P., (1977 (4) SCC 420)
17. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328,
this Court reiterated a similar view and held that if the eye-
witness(s) is deliberately kept back, the Court may draw an
inference against the prosecution and may, in a proper case,
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2025:HHC:28738
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., AIR 1971 SC 2156, this
.
Court held as under:
“10. … Material witnesses considered necessary by the
prosecution for unfolding the prosecution’s storyalone need to be produced without unnecessary and
redundant multiplication of witnesses. The appellant’s
counsel has not shown how the prosecution’s story is
rendered less trustworthy as a result of the non-
production of the witnesses mentioned by him. Nomaterial 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 forcontroverting the prosecution version…..”
19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC 2914,
this Court reiterated a similar view and further observed:
“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 shouldnot be a mechanical process to draw the adverse
inference merely on the strength of non-examinationof a witness even if it is a material witness…..”
20. In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991
SC 1346, this Court held:
“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 side. Nonetheless, if::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738either of the parties withholds any evidence which
could be produced and which, if produced, would 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
another 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
rupon 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 @ Guddu v. State of M.P. AIR 2004 SC 261, this
Court held:
“12. In trials before a Court of Session, the prosecution
“shall be conducted by a Public Prosecutor”. Section226 of the Code of Criminal Procedure, 1973, enjoins
him to open up his case by describing the chargebrought 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 theprosecution’s case, it would be unreasonable to insist
on the Public Prosecutor to examine those persons as
witnesses for the prosecution.
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::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738produce evidence “in support of the prosecution” and
not in derogation of the prosecution’s case. At the said
stage, the Public Prosecutor would be in a position to
take a decision as to which among the presences 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 repetitiousdepositions 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 lesseningthe 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.
r14. 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 (supra), and the Court, after placing reliance upon its
judgments in Vadivelu Thevar v. State of Madras, AIR 1957 SC
614, and Kishan Chand v. State of Haryana JT 2013 (1) SC 222,
held as under:
“22. In the matter of the appreciation of evidence of
witnesses, it is not the number of witnesses, but the
quality of their evidence, that is important, as there isno requirement in the law of evidence stating that a
particular number of witnesses must be examined to
prove/disprove a fact. It is a time-honoured principlethat 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, 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::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738one 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
can always examine a witness as a court witness if it is so
warranted in the interests of justice. 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.
18. 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 the 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::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738convict 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 persons 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’s 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’s 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
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2025:HHC:28738
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 were 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 the 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,
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2025:HHC:28738
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 more
witnesses does not carry any weight. Thus, 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], PrithipalSingh 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] .)”
19. Thus, no adverse inference can be drawn against the
prosecution for not examining Paramjeet Singh.
20. Constable Rahul (PW-9) also supported the prosecution
case in his examination in chief, which is not being reproduced to
avoid prolixity and repetition. He stated in his cross-examination
that the police party reached Shoghi at 11:00 a.m. They checked
40-50 vehicles till 4:00 p.m. The bus came from Jalandhar to
Shimla. No female constable was with them in the raiding party.
The proceedings continued till 5:30 p.m., and he left the spot
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2025:HHC:28738thereafter with rukka. He developed the photographs with the help
of his laptop. He could not recall the registration number of the
.
bus. He denied that he was not present on the spot, and no
recovery was effected in his presence.
21. HC Lalit Kumar (PW-12) also supported the prosecution
case. He stated in his cross-examination that they went from the
office to the spot in two private vehicles. They reached the spot at
about 11:00 a.m. They had checked 40-50 vehicles on the spot. The
bus came from Jalandhar to Shimla. There were 20-22 passengers
in the bus. He did not check the luggage of female passengers
because no lady constable was part of the team on that day. He and
Sunil Kumar saw the accused while throwing the packet. The
packet was taken out of the right pocket. He did not personally
check the persons. He had no suspicion that the accused might be
carrying some contraband in his clothes. He had a weighing
machine, needle, thread, wax, candle, white cloth, some papers
and forms, etc. Another Investigating Officer visited the spot with
Constable Rahul. He remained on the spot till 10:00 p.m. He
admitted that there is a Police Post at the Shoghi barrier, and other
police officials also remain in that post. He denied that the accused
had not thrown anything, and he was falsely implicated.
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22. There is nothing in his cross-examination which
suggests that he made a false statement. Nothing was suggested
.
to him that he had any motive to falsely implicate the accused;
therefore, there is no reason to disbelieve his testimony.
23. It was submitted that there are contradictions in the
statements of the prosecution witnesses regarding the presence of
the lady constable. Constable Rahul (PW-9) and HC Lalit Kumar
(PW-12) stated that there was no lady constable in the raiding
party, whereas Nitish Kumar (PW-7) stated that lady constable
was present outside the bus. This contradiction is apparent and not
real because these witnesses deposed about the raiding party. HC
Lalit Kumar specifically stated that there is a police barrier at
Shoghi; therefore, the lady constable could be present being part of
the police barrier Shoghi and the statements are reconcilable.
24. The prosecution witnesses corroborated the statements
of each other. There is nothing in their testimonies to doubt them.
The learned Trial Court found the testimonies of the prosecution
witnesses credible. It was laid down by the Hon’ble Supreme Court
in Goverdhan (supra) that the Appellate Court should not interfere
with the findings regarding the credibility of the witnesses
::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738recorded by the learned Trial Court unless there is some illegality
in it. It was observed: –
.
“83. The trial court, after recording the testimony of the
PW-10, and on consideration of the same, found her
evidence trustworthy and credible. We see no reason to
question the assessment about the credibility of the witnessby the Trial Court, which had the advantage of seeing and
hearing the witness and all other witnesses. Nothing has
been brought to our notice of any serious illegality or breach
of fundamental law to warrant taking a different view of theevidence of PW-10.
In this regard, we may keep in mind the valuable
observations made by this Court in Jagdish Singh v. MadhuriDevi, (2008) 10 SCC 497, in the following words:
“28. At the same time, however, the appellate court is
expected, nay bound, to bear in mind a finding recorded
by the trial court on oral evidence. It should not be
forgotten that the trial court had an advantage andopportunity of seeing the demeanour of witnesses and,
hence, the trial court’s conclusions should not
normally be disturbed. No doubt, the appellate courtpossesses the same powers as the original court, but
they have to be exercised with proper care, caution andcircumspection. When a finding of fact has been
recorded by the trial court mainly on appreciation of
oral evidence, it should not be lightly disturbed unlessthe approach of the trial court in the appraisal of
evidence is erroneous, contrary to well-established
principles of law or unreasonable.
29. …………………………………..
30. In Sara Veeraswami v. Talluri Narayya [(1947-48) 75
IA 252: AIR 1949 PC 32] the Judicial Committee of the
Privy Council, after referring to relevant decisions on::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738the point, stated [Quoting from Watt v. Thomas, [1947] 1
All ER 582, pp. 583 H-584 A.]: (IA p. 255)
“…but if the evidence as a whole can reasonably be.
regarded as justifying the conclusion arrived at at
the trial, and especially if that conclusion has been
arrived at on conflicting testimony by a tribunal
which saw and heard the witnesses, the appellatecourt will bear in mind that it has not enjoyed this
opportunity and that the view of the trial Judge as
to where credibility lies is entitled to great weight.
This is not to say that the Judge of the first
instance can be treated as infallible in determiningwhich side is telling the truth or is refraining from
exaggeration. Like other tribunals, he may go
wrong on a question of fact, but it is a cogent
circumstance that a Judge of first instance, whenestimating the value of verbal testimony, has the
advantage (which is denied to courts of appeal) of
having the witnesses before him and observing
how their evidence is given.”
25. Nothing was shown in the cross-examination of the
prosecution’s witnesses to shake their credibility, and the finding
of the learned Trial Court regarding the credibility of the witnesses
is to be accepted as correct.
26. Learned Trial Court had held that the testimonies of the
police officials cannot be discarded simply because they happened
to be police officials. The presumption that an official act is done
regularly applies to the acts done by police officials as well. It was
laid down by this Court in Budh Ram Versus State of H.P. 2020
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Cri.L.J.4254 that the testimonies of the police officials cannot be
discarded on the ground that they belong to the police force. It was
.
observed:
“11. It is a settled proposition of law that the sole testimony
of the police official, which if otherwise is reliable,trustworthy, cogent and duly corroborated by other
admissible evidence, cannot be discarded only on the ground
that he is a police official and may be interested in the
success of the case. There is also no rule of law which laysdown that no conviction can be recorded on the testimony of
a police officer, even if such evidence is otherwise
trustworthy. The rule of prudence may require more careful
scrutiny of their evidence. Wherever the evidence of a policeofficer, after careful scrutiny, inspires confidence and is
found to be trustworthy and reliable, it can form the basis ofconviction, and the absence of some independent witness of
the locality does not in any way affect the creditworthiness
of the prosecution case. No infirmity attaches to the
testimony of the police officers merely because they belongto the police force.”
27. Similar is the judgment in Karamjit Singh versus State,
AIR 2003 S.C. 3011, wherein it was held:
“The testimony of police personnel should be treated in the
same manner as the testimony of any other witness, andthere is no principle of law that, without corroboration by
independent witnesses, their testimony cannot be relied
upon. The presumption that a person acts honestly applies as
much in favour of police personnel as of other persons, and it
is not a proper judicial approach to distrust and suspect them
without good grounds. It will all depend upon the facts and
circumstances of each case, and no principle of general
application can be laid down.” (Emphasis supplied)::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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28. This position was reiterated in Sathyan v. State of Kerala,
2023 SCC OnLine SC 986, wherein it was observed:
.
22. Conviction being based solely on the evidence of police
officials is no longer an issue on which the jury is out. In
other words, the law is well settled that if the evidence of
such a police officer is found to be reliable, trustworthy, thenbasing the conviction thereupon cannot be questioned, and
the same shall stand on firm ground. This Court in Pramod
Kumar v. State (Govt. of NCT of Delhi) 2013 (6) SCC 588after
referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989SCC (Cri) 48], State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC
652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of
Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid
down recently in Kashmiri Lal v. State of Haryana [(2013) 6SCC 595: AIR 2013 SCW 3102] that there is no absolute
command of law that the police officers cannot be cited as
witnesses and their testimony should always be treated with
suspicion. Ordinarily, the public at large shows their
disinclination to come forward to become witnesses. If thetestimony of the police officer is found to be reliable and
trustworthy, the court can definitely act upon the same. If, in
the course of scrutinising the evidence, the court finds the
evidence of the police officer as unreliable anduntrustworthy, the court may disbelieve him, but it should
not do so solely on the presumption that a witness from thepolice Department of Police should be viewed with distrust.
This is also based on the principle that the quality of the
evidence weighs over the quantity of evidence.
23. Referring to State (Govt. of NCT of Delhi) v. Sunil 2001 (1)
SCC 652, in Kulwinder Singh v. State of Punjab (2015) 6 SCC
674, this court held that: —
“23. … That apart, the case of the prosecution cannot
be rejected solely on the ground that independent
witnesses have not been examined when, on the
perusal of the evidence on record, the Court finds that
the case put forth by the prosecution is trustworthy.
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2025:HHC:28738When the evidence of the official witnesses is
trustworthy and credible, there is no reason not to rest
the conviction on the basis of their evidence.”
24. We must note that in the former it was observed: —
.
“21… At any rate, the court cannot start with the
presumption that the police records are
untrustworthy. As a proposition of law, thepresumption should be the other way around. That
official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature… If the court has
any good reason to suspect the truthfulness of suchrecords of the police, the court could certainly take
into account the fact that no other independent person
was present at the time of recovery. But it is not a
legally approvable procedure to presume the policeaction as unreliable to start with, nor to jettison such
action merely for the reason that police did not collect
signatures of independent persons in the documents
made contemporaneous with such actions.”
25. Recently, this Court in Mohd. Naushad v. State (NCT of
Delhi) 2023 SCC OnLine 784 had observed that the
testimonies of police witnesses, as well as pointing out
memos, do not stand vitiated due to the absence of
independent witnesses.
26. It is clear from the above propositions of law, as
reproduced and referred to, that the testimonies of official
witnesses can nay be discarded simply because
independent witnesses were not examined. The
correctness or authenticity is only to be doubted on “any
good reason”, which, quite apparently, is missing from
the present case. No reason is forthcoming on behalf of
the Appellant to challenge the veracity of the testimonies
of PW-1 and PW-2, which the courts below have found
absolutely to be inspiring in confidence. Therefore, basing
the conviction on the basis of testimony of the police
witnesses as undertaken by the trial court and confirmed
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by the High Court vide the impugned judgment, cannot be
faulted with.”
29. Therefore, the learned Trial Court had rightly relied
.
upon the statements of prosecution witnesses.
30. The case property was sent to SFSL, Junga and result of
the analysis Ext.P-21/PW-13 shows that exhibit stated as heroin is
a sample of Diacetyl morphine (Heroin). It also mentions that the
parcel was bearing eight seal of ‘U’, three seals of ‘O’ and two seals
of Civil Nazir Court Shimla’. The seals were found intact and tallied
with specimen seals sent by the forwarding authority and seal
impressions U and O impressed on the forms NCB-1. This report
establishes the integrity of the case property. It was held in Baljit
Sharma vs. State of H.P 2007 HLJ 707, that where the report of
analysis shows that the seals were intact, the case of prosecution
that the case property remained intact is to be accepted as correct.
It was observed:
“A perusal of the report of the expert Ex.PW8/A shows that
the samples were received by the expert in a safe manner,
and the sample seal was separately sent, tallied with the
specimen impression of a seal taken separately. Thus, there
was no tampering with the seal, and the seal impressions
were separately taken and sent to the expert also.”
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31. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
.
“It has also come to evidence that to date, the parcels of the
sample were received by the Chemical Examiner, and the seal
put on the said parcels was intact. That itself proves and
establishes that there was no tampering with the previouslymentioned 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 40days in sending the samples did not and could not have
caused any prejudice to the appellant.”
32. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402,
the High Court had concluded that there could have been
tampering with the case property since there was a delay of seven
days in sending the report to FSL. It was laid down by the Hon’ble
Supreme Court that the case property was produced in the Court,
and there was no evidence of tampering. Seals were found to be
intact, which would rule out the possibility of tampering. It was
observed:
“The prosecution has been able to establish and prove that
the aforesaid bags, which were 35 in number, contained
poppy husk, and accordingly, the same were seized after
taking samples therefrom, which were properly sealed. The
defence has not been able to prove that the aforesaid
seizure and seal put in the samples were in any manner
tampered with before it was examined by the Chemical
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2025:HHC:28738sending 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 beentampered 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 557in 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 andthat 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.”
33. 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, the
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2025:HHC:28738noticed 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 videapplication 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 wasordered 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 thecase 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 rightlyheld that the non-examination of Joginder Singh did not,
in any way, affect the case of the prosecution. Further, it is
evident from the report of the Chemical Examiner, Ex.P-10,that the sample was received with seals intact and that the
seals on the sample tallied with the sample seals. In that viewof the matter, the chain of evidence was complete.”
(Emphasis supplied)
34. Therefore, the submission that the integrity of the case
property has not been established cannot be accepted.
35. The result of the analysis shows that exhibit stated as
heroin a sample of Diacetyl morphine (heroin). Since the integrity
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of the case property from the time of recovery till the analysis has
been proved; therefore, it has been proved on record that the
.
appellant was found in possession of 10.014 grams of heroin. The
analysis report shows that total weight of exhibit with poly packet
10.540 grams and actual weight of exhibit of 10.014 grams.
Therefore, the learned Trial Court had rightly convicted the
accused of the commission of offence punishable under Section
21(b) of the NDPS Act.
36. to
The learned Trial Court sentenced the accused to
undergo rigorous imprisonment for four years, pay a fine of
₹25,000/- and in default of payment of fine to further undergo
simple imprisonment for a period of six months. The Central
Government has notified the commercial quantity of ‘heroin’ as
250 gms, which means that a person possessing 250 gms of
‘heroin’ can be sentenced to 10 years’ imprisonment. It was laid
down by the Hon’ble Supreme Court in Uggarsain v. State of
Haryana, (2023) 8 SCC 109: 2023 SCC OnLine SC 755that the Courts
have to apply the principle of proportionality while imposing
sentence. It was observed at page 113:
10. This Court has, time and again, stated that the principle
of proportionality should guide the sentencing process.
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In Ahmed Hussein Vali Mohammed Saiyed v. State of
Gujarat [Ahmed Hussein Vali Mohammed Saiyed v. State of
Gujarat, (2009) 7 SCC 254 : (2009) 3 SCC (Cri) 368 : (2009) 8
SCR 719] it was held that the sentence should “deter the
.
criminal from achieving the avowed object to (sic break the)
law,” and the endeavour should be to impose an
“appropriate sentence.” The Court also held that imposing
“meagre sentences” merely on account of lapse of time would
be counterproductive. Likewise, in Jameel v. State of
U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC
(Cri) 582 : (2009) 15 SCR 712] while advocating that
sentencing should be fact dependent exercises, the Court
also emphasised that : (Jameel case [Jameel v. State of U.P.,
(2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712],
SCC p. 535, para 15)
“15. … the law should adopt the corrective machinery or
deterrence based on a factual matrix. By deft modulation, the
sentencing process is stern where it should be, and tempered
with mercy where it warrants to be. The facts and given
circumstances in each case, the nature of the crime, the
manner in which it was planned and committed, the motive
for commission of the crime, the conduct of the accused, the
nature of weapons used and all other attending
circumstances are relevant facts which would enter into the
area of consideration.”(emphasis supplied)
11. Again, in Guru Basavaraj v. State of Karnataka [Guru
Basavaraj v. State of Karnataka, (2012) 8 SCC 734: (2012) 4
SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 : (2012) 8 SCR 189] the
Court stressed that: (SCC p. 744, para 33)
“33. … It is the duty of the court to see that an appropriate
sentence is imposed, regard being had to the commission of
the crime and its impact on the social order”(emphasis
supplied)
and that sentencing includes “adequate punishment”. In B.G.
Goswami v. Delhi Admn. [B.G. Goswami v. Delhi Admn., (1974)
3 SCC 85: 1973 SCC (Cri) 796 : (1974) 1 SCR 222], the Court
considered the issue of punishment and observed that
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2025:HHC:28738
punishment is designed to protect society by deterring
potential offenders as well as prevent the guilty party from
repeating the offence; it is also designed to reform the
offender and reclaim him as a law-abiding citizen for the
.
good of the society as a whole. Reformatory, deterrent and
punitive aspects of punishment thus play their due part in
judicial thinking while determining the question of
awarding appropriate sentences.
12. In Sham Sunder v. Puran [Sham Sunder v. Puran, (1990) 4
SCC 731: 1991 SCC (Cri) 38: 1990 Supp (1) SCR 662], the
appellant-accused was convicted under Section 304 Part I
IPC. The appellate court reduced the sentence to the term of
imprisonment already undergone, i.e. six months. However,
it enhanced the fine. This Court ruled that the sentence
awarded was inadequate. Proceeding further, it opined that
: (SCC p. 737, para 8)
“8. … The court, in fixing the punishment for any
particular crime, should take into consideration the nature
of the offence, the circumstances in which it was
committed, and the degree of deliberation shown by the
offender. The measure of punishment should be
proportionate to the gravity of the offence. The sentence
imposed by the High Court appears to be so grossly and
entirely inadequate as to involve a failure of justice. We
are of the opinion that to meet the ends of justice, the
sentence has to be enhanced.”
(emphasis supplied)
This Court enhanced the sentence to one of rigorous
imprisonment for a period of five years. This Court has
emphasised, in that sentencing depends on the facts, and
the adequacy is determined by factors such as “the nature
of crime, the manner in which it is committed, the propensity
shown and the brutality reflected” [Ravada Sasikala v. State
of A.P. [Ravada Sasikala v. State of A.P., (2017) 4 SCC 546:
(2017) 2 SCC (Cri) 436: (2017) 2 SCR 379]]. Other decisions,
like: State of M.P. v. Bablu [State of M.P. v. Bablu, (2014) 9
SCC 281 : (2014) 6 SCC (Cri) 1 : (2014) 9 SCR 467]; Hazara::: Downloaded on – 26/08/2025 21:28:33 :::CIS
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2025:HHC:28738Singh v. Raj Kumar [Hazara Singh v. Raj Kumar, (2013) 9 SCC
516 : (2014) 1 SCC (Cri) 159 : (2013) 5 SCR 979] and State of
Punjab v. Saurabh Bakshi [State of Punjab v. Saurabh Bakshi,
(2015) 5 SCC 182 : (2015) 2 SCC (Cri) 751 : (2015) 3 SCR 590].
too, have stressed on the significance and importance of
imposing appropriate, “adequate” or “proportionate”
punishments.
37. Learned Trial Court held that the drug and substance
abuse is a serious problem, which adversely affect the social fabric
of the country and needs to be viewed as a psycho social medical
problem. The legislature has considered all these factors while
providing a punishment of 10 years to a person in possession of
250 grams of heroin.
38. Learned Trial Court did not assign any reason to deviate
from the principle of proportionality and applying the principle of
proportionality, the sentence of four years is not justified. Learned
Trial Court pronounced the order on 23.08.2024. It was noticed
that the accused/remained in judicial custody for 388 days. The
order shows that he was in custody on the date of pronouncement
of the judgment, therefore, he has already undergone about one
year’s imprisonment since the pronouncement of the order, which
is more than sufficient after applying the principle of
proportionality. Therefore, he is ordered to undergo sentence for
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the period already undergone by him, t0 pay a fine of ₹10,000/-,
and in default of payment of fine, to further undergo imprisonment
.
for three months for the commission of an offence punishable
under Section 21(b) of the ‘N.D& P.S Act’.
39. In view of the above, the present appeal is partly allowed
and the appellant/accused is sentenced to undergo imprisonment
for the period already undergone by him, to pay a fine of ₹10,000/-
and in default of payment of fine to further undergo simple
imprisonment for three months for the commission of an offence
punishable under Section 21(b) of NDPS Act. Subject to this
modification, the rest of the judgment passed by the learned Trial
Court is upheld.
40. The modified warrant be prepared accordingly.
41. Records of the learned Trial Court be sent back
forthwith, along with a copy of this judgment
(Rakesh Kainthla)
Judge
26th August, 2025
(ravinder)
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