Himachal Pradesh High Court
Reserved On: 24.02.2025 vs State Of Himachal Pradesh on 3 March, 2025
2025:HHC:4599
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 464 of 2010
Reserved on: 24.02.2025
Date of Decision: 0403.2025
Fuman Singh …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. Ajay Sharma, Senior Advocate
with Mr. Atharv Sharma.
For the Respondent : Mr. Gautam Sood, Deputy Advocate
General for respondent-State.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and order of sentence dated 23.09.2010 passed by learned Special
Judge, Una, District Una, 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 15 of the Narcotic Drugs and Psychotropic Substances
Act (in short ‘NDPS Act‘) and was sentenced to undergo rigorous
imprisonment for two years, pay a fine of ₹25,000/- and in
default of payment of fine to further undergo rigorous
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
2025:HHC:4599
imprisonment for six months for the commission of aforesaid
offence. (The parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the
accused before the learned Trial Court for the commission of an
offence punishable under Section 15 of the NDPS Act. It was
asserted that HC Sanjay Kumar (PW-10), HC Ranjit Singh
(PW-1), HHC Mohinder Singh (not examined), and Constable
Gurdiyal Singh (PW-2) were present at Chhetran on a link road
leading from Kungrat to Bidarwal Chowk on 10.08.2009 in a
private vehicle. The accused was coming from Bidarwal Chowk
carrying with him a blue bag (Ext.P-1). The accused returned
after seeing the headlight of the vehicle and started walking
briskly. HC Sanjay Kumar (PW-10) apprehended him with the
help of accompanying police officials. The accused revealed his
name as Fuman Singh on enquiry. The police checked the bag
being carried by the accused. One grey polythene bag containing
Poppy Husk (Ext.P-2) was found in the blue bag. The place was
lonely; the night was dark, and no vehicle or person was moving
3
2025:HHC:4599
on the road. Hence, HC Sanjay Kumar (PW-10) weighed the
Poppy Husk in the presence of police officials and found its
weight to be 11 kg 500 grams. The Poppy Husk was put in the
same polythene. The polythene was put in the blue bag, and the
bag (Ext.P-1) was sealed with one seal impression of seal ‘J’. The
seal impression (Ext. PA) was taken on separate pieces of cloth.
NCB-I Form (Ext.PW-7/A was filled in triplicate. A seal
impression was put on the NCB-I form. The seal was handed
over to HC Ranjit Singh (PW-1) after its use. The bag (Ext.P-1)
was seized vide memo (Ext. PB). HC Ranjit Singh (PW-1)
prepared the Rukka (Ext. PD) and handed it over to Constable
Gurdyal Singh (PW-2) with directions to take it to Police Station
Haroli. Constable Gurdyal Singh (PW-2) handed over the rukka
to ASI Karam Chand (PW-6), who got the F.I.R. (Ext.PW-6/A)
registered in the Police Station and handed over the case file to
Constable Gurdyal Singh with the direction to carry it to the
spot. HC Sanjay Kumar (PW-10) conducted the investigation on
the spot. He prepared the site plan (Ext.PW-10/A). He arrested
the accused vide memo (Ext.PW-10/B) and recorded the
statements of witnesses as per their version. He produced the
accused, case file and case property before ASI Karam Chand
4
2025:HHC:4599
(PW-6) on 11.08.2009 at 4:10 a.m. ASI Karam Chand (PW-6)
resealed the bag with a seal impression of ‘S’. He obtained the
sample seal (Ext.PW-6/B) on a separate piece of cloth and
NCB-I form. He filled the relevant column of the NCB-I form.
He handed over the NCB-I form, sample seal, and case property
to MHC Santosh Kumar (PW-7). He deposited all the articles in
the Malkhana and made an entry in the Register of Malkhana.
He handed over the case property, sample seal, docket, copy of
F.I.R. and NCB-I form to HHC Jagdev Chand (PW-8) with the
direction to carry them to SFSL Junga vide RC No. 205 of 2009..
HHC Jagdev Chand (PW-8) deposited all the articles at SFSL
Junga and handed over the receipt to HC Santosh Kumar (PW-7)
on his return. HC Sanjay Kumar (PW-10) sent Reasons of Belief
(Ext.PE) to the Superintendent of Police, Una, through Constable
Gurdyal Singh (PW-2). He sent the Special Report (Ext. PC) to
the Superintendent of Police Una on 12.08.2009 through HC
Ranjit Singh (PW-1). Superintendent of Police Una made the
endorsement on the Reasons of Belief (Ext.PE) and Special
Report (Ex. PC) and handed them over to his Reader, ASI Surjit
Singh (PW-5). The result of the analysis (Ext. PX) was issued in
which it was shown that the exhibit was a sample of Poppy
5
2025:HHC:4599
straw. The statements of the remaining witnesses were recorded
as per their version, and after the completion of the
investigation, the challan was prepared and presented before
the learned Trial Court.
3 The learned Trial Court charged the accused with the
commission of an offence punishable under Section 15 of the
NDPS Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined 10 witnesses to prove its
case. HC Ranjit Singh (PW-1) and Constable Gurdyal Singh
(PW-2) are the witnesses to recovery. Lady Constable Surjit Kaur
(PW-3) and HHC Sada Shiv (PW-4) proved the entries in the
daily diary. ASI Surjit Singh (PW-5) was working as a Reader to
the Superintendent of Police, Una, District Una, H.P., to whom
the Special Report and Reasons of Belief were handed over. ASI
Karam Chand (PW-6) was officiating as SHO, who signed the
F.I.R. and resealed the blue bag. Santosh Kumar (PW-7) was
working as MHC, with whom the case property was deposited.
HHC Jagdev Singh (PW-8) carried the case property to SFSL,
Junga. SI Shakti Singh Pathania (PW-9) prepared the challan. HC
6
2025:HHC:4599
Sanjay Kumar (PW-10) 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
stated that the witnesses were official and interested. He was
innocent and he was falsely implicated in the case. No defence
was sought to be adduced by the accused.
6. The learned Trial Court held that the testimonies of
police officials were consistent. The prosecution case cannot be
doubted simply because the independent witness was not
associated. The statements of official witnesses are creditworthy
and cannot be discarded without any reason. It was a case of
chance recovery, and the non-association of an independent
person is not material. Minor discrepancies in statements are
insufficient to discard the prosecution case. The F.I.R. number
was mentioned on the documents after the registration of F.I.R.,
and this would not cast any doubt in the prosecution case.
Hence, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order of
sentence passed by the learned Trial Court, the accused has filed
7
2025:HHC:4599
the present appeal asserting that the learned Trial Court erred in
convicting and sentencing the accused. There were major
contradictions in the statements of witnesses, which affected
the core of the prosecution case. Learned Trial Court ignored
those contradictions. The police had not associated any
independent witnesses even though the place was surrounded by
houses. The F.I.R. number was written on the various
documents, which shows that the F.I.R. is ante-timed. The
compliance of Sections 52 and 55 of the NDPS Act was not made.
No document was produced to show the departure of the police
official. The contradiction regarding the number of NCB-I
forms shows that the investigations were not conducted on the
spot. Therefore, it was prayed that the present appeal be
allowed and the judgment of conviction and order of sentence be
set aside.
8. I have heard Mr Ajay Sharma, learned Senior
Counsel, assisted by Mr Atharv Sharma, learned counsel for the
appellant/accused and Mr Gautam Sood, learned Deputy
Advocate General for the respondent-State.
9. Mr. Ajay Sharma, learned Senior Counsel for the
8
2025:HHC:4599
appellant/accused submitted that the learned Trial Court erred
in convicting and sentencing the accused. There were various
discrepancies in the prosecution version. The vehicle was not
mentioned in the daily diary produced on record. The record
regarding the ownership of the vehicle was also not produced.
This casts a doubt regarding the presence of the police party on
the spot. There were major contradictions in the statements of
official witnesses and the learned Trial Court erred in relying
upon the statements of official witnesses. The report of analysis
does not show whether the straw was a plant of Papaver
Somniferum-L. He relied upon the judgment of this Court in
Rajiv Kumar alias Guglu vs. State of H.P. 2008(1) HLJ 247 (HPHC)
in support of his submission.
10. Mr Gautam Sood, learned Deputy Advocate General,
submitted that the judgment of this Court in Guglu (supra) is not
good law given the judgment of the Hon’ble Supreme Court in
State of H.P. v. Nirmal Kaur, 2022 SCC OnLine SC 1462. The
evidence on record shows that it was a case of a chance recovery.
Hence, the prosecution case cannot be doubted because of the
non-association of independent witnesses. Minor
contradictions are bound to come with time and cannot be used
9
2025:HHC:4599
for discarding the prosecution case. Hence, he prayed that the
present appeal be dismissed.
11. I have considered the submissions made at the bar
and have gone through the records carefully.
12. Before adverting to the merits of the case, it is
necessary to deal with the submission raised on behalf of the
accused that the report of the chemical examiner is required to
mention that the poppy straw is of the plant Papaver
Somniferum-L. Reliance was placed upon the judgment of this
Court in Rajiv Kumar alias Guglu (supra) wherein it was observed
as under: –
“10. In this view of the matter, we derive strength from a
judgment of the Hon’ble Supreme Court in Amar Singh
Ramjibhai Barot v. State of Gujarat (2005) 7 Supreme Court
Cases 550. The facts of that case were that some black
substance, looking like opium, was recovered from the
accused. A sample of the substance was sent to the
Chemical Examiner, who reported that the sample was
“opium as described in the Narcotic Drugs and
Psychotropic Substances Act, 1985, containing 2.8 per
cent anhydride morphine and also pieces of poppy flowers
(posedoda)”. The Hon’ble Supreme Court noticed the
definition of opium as given in Section 2(xv) of the
Narcotic Drugs and Psychotropic Substances Act, 1985,
according to which “opium” means (a) the coagulated
juice of opium poppy and (b) any mixture, with or without
any neutral material, of the coagulated juice of the opium
poppy, but does not include any preparation containing
10
2025:HHC:4599not more than O.2 per cent of morphine. The Hon’ble
Supreme Court held that there did not appear any
acceptable evidence that the black substance found with
the appellant was “coagulated juice of the opium poppy”
and “any mixture, with or without any neutral material of
the coagulated juice of the opium poppy” and that the
opinion given by the FSL that it was opium, as described
in the Narcotic Drugs and Psychotropic Substances Act,
1985, was not binding on the Court.
13. However, this judgment was considered by the
Hon’ble Supreme Court in Nirmal Kaur (supra) which is apparent
from para 18 of the judgment, wherein it was observed: –
“18. Shri Parameshwar also agrees with the submissions
made by Shri Mukerji that India is also obligated to
honour its obligations as per the decisions taken in
various International Conventions. Shri Parameshwar
has also taken us through different statutes enacted by
different countries to highlight the relevant provisions
with regard to ‘opium’. Shri Parameshwar has also taken
us to the judgment rendered by Justice Hidayatullah in
the case of Baidyanath Mishra v. State of Orissa, wherein
this Court held that when evidence shows that it could be
‘opium’, it will not be necessary to conduct any further
analysis. However, he submitted that the said position
would no longer be valid in view of the subsequent
judgment of this Court in the case of Harjit Singh v. State
of Punjab, wherein this Court considered the provisions
of the 1985 Act and held that chemical analysis of the
contraband material is essential to prove a case against
the accused under the 1985 Act. Shri Parameshwar
submitted that the Gujarat High Court in the case
of Hathi @ Mangalsinh Ramdayalji v. State of Gujarat as
well as the Himachal Pradesh High Court in the cases
of Rajiv Kumar alias Guglu v. State of H.P. and State of
H.P. v. Des Raj have taken a similar view. Shri
11
2025:HHC:4599Parameshwar fairly submitted that, as amicus curiae, he
has placed both sides before this Court, and it is for this
Court to take a view in the interest of justice.”
14. After analysing the various provisions of the NDPS
Act, international developments, and scientific studies, the
Hon’ble Supreme Court held that once the Chemical Examiner
mentions in the report that contraband contained ‘meconic acid’
and ‘morphine’, it will be sufficient to establish that it is derived
from the plant of Papaver Somniferum-L and there is no
requirement to mention this fact in the report. It was observed:-
88. We are therefore of the considered view that the High
Court was not justified in holding that, even after the
Chemical Examiner’s report establishes that the
contraband contains ‘meconic acid’ and ‘morphine’
unless it was established that the same was derived from
the species of ‘papaver somniferum L’, conviction under
Section 15 of the 1985 Act could not be sustained.
89. As already discussed hereinabove, once it is
established that the seized material contains ‘meconic
acid’ and ‘morphine’, it will be sufficient to establish that
it is derived from the plant ‘papaver somniferum L’ as
defined in sub-clause (a) of Clause (xvii) of Section 2 of
the 1985 Act.
90. We further find that the High Court was also not
justified in observing that the Chemical Examiner’s
report, in the alternative, should establish that the seized
material is a part of any other species of ‘papaver’ from
which ‘opium’ or any ‘phenanthrene alkaloid’ could be
extracted and which has been notified by the Central
Government as ‘opium’ for the purpose of the 1985 Act.
We fail to understand as to how a Chemical Examiner
12
2025:HHC:4599
could be asked whether the seized material was a part of
any other species of ‘papaver’ from which ‘opium’ or any
other ‘phenanthrene alkaloid’ could be extracted when
there are no such species of ‘papaver’ which has been
notified by the Central Government to be ‘opium poppy’
for the purpose of the 1985 Act.
91. In the result, we hold that, once a Chemical Examiner
establishes that the seized ‘poppy straw’ indicates a
positive test for the contents of ‘morphine’ and ‘meconic
acid’, it is sufficient to establish that it is covered by sub-
clause (a) of Clause (xvii) of Section 2 of the 1985 Act and
no further test would be necessary for establishing that
the seized material is a part of ‘papaver somniferum L’. In
other words, once it is established that the seized ‘poppy
straw’ tests positive for the contents of ‘morphine’ and
‘meconic acid’, no other test would be necessary for
bringing home the guilt of the accused under the
provisions of Section 15 of the 1985 Act.
15. Thus, in view of the binding precedent of the Hon’ble
Supreme Court in Nirmal Kaur (supra), the judgment of Rajiv
Kumar alias Guglu (supra) cannot be followed, and the
submission that the Chemical Examiner is required to mention
that the Poppy straw was an extract of the plant of papaver
somniferum-L is not acceptable.
16. In the present case, the result of analysis specifically
mentions that the exhibit under reference gave positive results
for the presence of Morphine, Codeine, Thebaine, Paperverine
and Meconic acid in the exhibit. All the above tests identified the
13
2025:HHC:4599
presence of Opium Poppy (Papaver somniferum) species in the
exhibit and thus the sample of Poppy straw.
17. Since the report specifically mentions that the
exhibit contained ‘morphine and meconic acid’, the report duly
establishes that the analysed substance was Poppy straw in
terms of the judgment in terms of Nirmal Kaur (supra) and the
submission that the substance is not proved to be Poppy straw is
rejected.
18. HC Sanjay Kumar (PW-10) stated that he, HC Ranjit
Singh (PW-1), HHC Mohinder Singh and Constable Gurdyal
Singh (PW-2) were on patrolling duty in a private vehicle
bearing registration No. HP19A-1419 belonging to HC Ranjit
Singh (PW-1). An entry No. 9 (Ext. PW3/A) was recorded to this
effect. They were going from Kungrath towards Bidhrowal when
the accused came on foot from the opposite side. He was
carrying a blue bag on his left shoulder. The accused turned back
after seeing the light of the car and tried to run away. The police
got out of the car and apprehended the accused. The accused
revealed his name as Fuman Singh after enquiry. The police
checked the blue bag and found a plastic envelope of grey colour
14
2025:HHC:4599
inside the blue bag, which contained a Poppy straw/husk. There
was no house in the vicinity. No vehicle was moving. It was a
night. He took out the weights and scales from the Investigating
Kit and weighed the Poppy straw/husk. The total weight of
Poppy straw/husk was found to be 11.5 kg. The Poppy straw was
put in a grey plastic bag. The bag was put inside the blue bag,
and the blue bag was sealed with one seal impression of seal ‘J.
Seal impression (Ext. PA) was taken on a piece of cloth. NCB-I
form was filled in triplicate. The case property was seized vide
seizure memo (Ext. PB). He identified the case property in the
Court.
19. His testimony regarding the departure of the police
party in a private vehicle is duly supported by the entry
(Ext.PW-3/A), which mentions that HC Sanjay Kumar (PW-10),
HHC Mohinder Singh, and Contable Gurdyal Singh (PW-2) were
sent to patrol in a private vehicle towards Haroli etc.
20. It was submitted that the name of the owner of the
vehicle or its registration number was not mentioned in the
entry in the daily diary, and this makes the prosecution case
suspect. This submission is not acceptable. No requirement of
15
2025:HHC:4599
law/rules was brought to the notice of this Court, which obliges
the police officials to enter the name of the owner of the car or
its registration number in the daily diary. Therefore, the entry
cannot be doubted because the ownership of the vehicle or its
registration number was not mentioned in it. Further, the
accused has not specifically denied that the police party was
going from Kungrat towards Bidhrowal and was present near
village Chhetran when they saw the accused in the light of the
vehicle. The Court put the question no. 3 to the accused to this
effect while recording his statement under section 313 CrPC. The
accused responded to question No. 3 by saying that he was
unaware of this fact. This reply shows that the presence of the
police on the spot was not specifically disputed, and the
prosecution case regarding the presence of the police officials on
the spot cannot be doubted because the registration number of
the car or its ownership was not mentioned in the daily diary.
21. HC Ranjit Singh (PW-1) and Constable Gurdayal
Singh (PW-2) made similar statements in their examination-
in-chief as was made by HC Sanjay Kumar (PW-10) and their
testimonies corroborate the statement of HC Sanjay Kumar in
material particulars.
16
2025:HHC:4599
22. HC Ranjit Singh stated in his cross-examination that
his statement was recorded by HC Sanjay Kumar (PW-10) at
about 12 midnight. They remained at the spot till 3:30 -4:00 a.m.
The statement was recorded as per his version and under his
dictation. He volunteered to say that the statement under
Section 161 Cr.P.C. was recorded by him in his own hand under
the dictation of HC Sanjay Kumar (PW-10). He admitted that the
registration number of the car was not mentioned in the
statement. He also admitted that it was not mentioned in the
statement under Section 161 of Cr.P.C. that the private car
belonged to him. He had got recorded that the accused had tried
to run away which fact was not mentioned in his statement
recorded under Section 161 of CrPC.
23. Constable Gurdyal Singh (PW-2) stated in his cross-
examination that he did not get recorded in his statement under
Section 161 Cr.P.C. that he had gone to the spot in the car of HC
Ranjit Singh (PW-1).
24. It was submitted that the witnesses had not
mentioned about going to the spot in the car of HC Ranjit Singh
(PW-1), and it is a major improvement, which makes the
17
2025:HHC:4599
prosecution case highly suspect. The witnesses were asked
about what was recorded in their statements under Section 161
of Cr.P.C. In this regard, it is to be noticed that the statement
recorded under Section 161 of Cr.PC is not a substantive piece of
evidence, and the statement made to the police cannot be used
for any purpose except to contradict the prosecution witness as
per Section 162 of Cr. PC. Therefore, it is not permissible to ask a
witness as to what was told by him to the police and prove the
statement recorded by the police. In Tahsildar Singh v. State of
U.P., 1959 Supp (2) SCR 875: AIR 1959 SC 1012: 1959 Cri LJ 1231 (six-
judges bench) learned Counsel for the defence asked the
following questions from the witness during his cross-
examination:
1. “Did you state to the investigating officer that the gang
rolled the dead bodies of Nathi, Saktu and Bharat Singh,
and scrutinise them and did you tell him that the face of
Asa Ram resembled that of the deceased Bharat Singh?”
2. “Did you state to the investigating officer about the
presence of the gas lantern?”
25. Learned Sessions Judge disallowed the questions,
after holding that omission does not amount to contradiction
and cannot be put under section 161 of Cr.P.C. He held:
18
2025:HHC:4599
“Therefore, if there is no contradiction between his
evidence in court and his recorded statement in the diary,
the latter cannot be used at all. If a witness deposes in
court that a certain fact existed but had stated under
Section 161 CrPC either that that fact had not existed or
that the reverse and irreconcilable fact had existed, it is a
case of conflict between the deposition in the court and
the statement under Section 161 CrPC and the latter can
be used to contradict the former. But if he had not stated
under Section 161 anything about the fact, there is no
conflict and the statement cannot be used to contradict
him. In some cases, an omission in the statement under
Section 161 may amount to contradiction of the
deposition in court; they are the cases where what is
actually stated is irreconcilable with what is omitted and
impliedly negatives its existence.”
26. A question arose before the Hon’ble Supreme Court
whether the questions were wrongly disallowed. It was held that
the form of the questions was defective as they elicited from the
witness what he had told the police and were properly
disallowed. It was observed:
“13.. …… The procedure prescribed is that, if it is intended
to contradict a witness by the writing, his attention must,
before the writing can be proved, be called to those parts
of it which are to be used for the purpose of contradicting
him. The proviso to Section 162 of the Code of Criminal
Procedure only enables the accused to make use of such a
statement to contradict a witness in the manner provided
by Section 145 of the Evidence Act. It would be doing
violence to the language of the proviso if the said
statement be allowed to be used for the purpose of cross-
examining a witness within the meaning of the first part
of Section 145 of the Evidence Act. Nor are we impressed
by the argument that it would not be possible to invoke
19
2025:HHC:4599the second part of Section 145 of the Evidence Act without
putting relevant questions under the first part thereof.
The difficulty is more imaginary than real. The second
part of Section 145 of the Evidence Act clearly indicates
the simple procedure to be followed. To illustrate: A says
in the witness box that B stabbed C; before the police, he
had stated that D stabbed C. His attention can be drawn to
that part of the statement made before the police which
contradicts his statement in the witness box. If he admits
his previous statement, no further proof is necessary; if
he does not admit it, the practice generally followed is to
admit it subject to proof by the police officer. On the other
hand, the procedure suggested by the learned counsel may be
illustrated thus: If the witness is asked “Did you say before the
police officer that you saw a gas light?” and he answers
“Yes”, then the statement which does not contain such recital
is put to him as a contradiction. This procedure involves two
fallacies: one is it enables the accused to elicit by a process of
cross-examination what the witness stated before the police
officer. If a police officer did not make a record of a witness’s
statement, his entire statement could not be used for any
purpose, whereas if a police officer recorded a few sentences,
by this process of cross-examination, the witness’s oral
statement could be brought on record. This procedure,
therefore, contravenes the express provision of Section 162 of
the Code. The second fallacy is that by the illustration given
by the learned counsel for the appellants, there is no self-
contradiction of the primary statement made in the witness
box, for the witness has yet not made on the stand any
assertion at all which can serve as the basis. The
contradiction, under the section, should be between what a
witness asserted in the witness box and what he stated before
the police officer, and not between what he said he had stated
before the police officer and what he actually made before
him. In such a case the question could not be put at all: only
questions to contradict can be put and the question here
posed does not contradict; it leads to an answer which is
contradicted by the police statement. This argument of the
learned counsel based upon Section 145 of the Evidence Act is,
20
2025:HHC:4599therefore, not of any relevance in considering the express
provisions of Section 162 of the Code of Criminal Procedure.
xxxxxxxxx
51. It must not be overlooked that the cross-examination
must be directed to bringing out a contradiction between
the statements and must not subserve any other purpose.
If the cross-examination does anything else, it will be
barred under Section 162 which permits the use of the
earlier statement for contradicting a witness and nothing
else. Taking the example given above, we do not see why
cross-examination may not be like this:
Q. I put it to you that when you arrived on the scene X
was already running away and you did not actually see
him stab D as you have deposed today?
A. No. I saw both events.
Q. If that is so, why is your statement to the police
silent as to stabbing?
A. 1 stated both the facts to the police.
The witness can then be contradicted with his previous
statement. We need hardly point out that in the
illustration given by us, the evidence of the witness in
court is direct evidence as opposed to testimony to a fact
suggesting guilt. The statement before the police can only
be called circumstantial evidence of complicity and not
direct evidence in the strict sense. Of course, if the
questions framed were:
Q. What did you state to the police? or
Q. Did you state to the police that D stabbed X?
They may be ruled out as infringing Section 162 of the Code of
Criminal Procedure because they do not set up a contradiction
but attempt to get a fresh version from the witnesses with a
view to contradicting him. How the cross-examination can
be made must obviously vary from case to case, counsel to
counsel and statement to statement. No single rule can be
laid down and the propriety of the question in the light of
21
2025:HHC:4599the two sections can be found only when the facts and
questions are before the court. But we are of the opinion
that relevant and material omissions amount to vital
contradictions, which can be established by cross-
examination and confronting the witness with his
previous statement.
xxxxxxxx
59. This brings us to the consideration of the questions,
which were asked and disallowed. These were put during
the cross-examination of Bankey, PW 30. They are:
Q. Did you state to the investigating officer that the
gang rolled the dead bodies of Nathi, Saktu and Bharat
Singh and scrutinized them, and did you tell him that
the face of Asa Ram resembled that of the deceased
Bharat Singh?
Q. Did you state to the investigating officer about the
presence of the gas lantern?
These questions were defective, to start with. They did not set
up a contradiction but attempted to obtain from the witness a
version of what he stated to the police, which is then
contradicted. What is needed is to take the statement of the
police as it is, and establish a contradiction between that
statement and the evidence in court. To do otherwise is to
transgress the bounds set by Section 162 which, by its
absolute prohibition, limits even cross-examination to
contradictions and no more. The cross-examination cannot
even indirectly subserve any other purpose. In the questions
with which we illustrated our meaning, the witness was not
asked what he stated to the police but was told what he had
stated to the police and asked to explain the omission. It is to
be borne in mind that the statement made to the police is
“duly proved” either earlier or even later to establish what
the witness had then stated.”
xxxxxxxxx
60. In our opinion, the two questions were defective for the
reasons given here and were properly ruled out, even though
22
2025:HHC:4599all the reasons given by the court may not stand scrutiny. The
matter was not followed up with proper questions, and it
seems that similar questions on these and other points
were not put to the witness out of deference (as it is now
suggested) to the ruling of the court. The accused can
only blame themselves if they did not.” (Emphasis
supplied)
27. Thus, no advantage can be derived by the defence
from the admission of the witnesses regarding what was told by
them to the police.
28. Proviso to section 162 of Cr.P.C. permits the use of the
statement recorded by the police to contradict a witness. It
reads:
Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement has
been reduced into writing as aforesaid, any part of his
statement, if duly proved, may be used by the accused,
and with the permission of the Court, by the
prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act, 1872
(1 of 1872) and when any part of such statement is so
used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-
examination.
29. Thus, it is apparent that the defence can use the
statement to contradict a witness if the statement is proved. It
was laid down by the Hon’ble Bombay High Court about a
century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R.
23
2025:HHC:4599
965 that the previous statement has to be proved before it can be
used. It was observed:
“The words “if duly proved” in my opinion, clearly show
that the record of the statement cannot be admitted in
evidence straightaway but that the officer before whom
the statement was made should ordinarily be examined
as to any alleged statement or omitted statement that is
relied upon by the accused for the purpose of
contradicting the witness; and the provisions of Section
67 of the Indian Evidence Act apply to this case, as well
as to any other similar ease. Of course, I do not mean to
say that, if the particular police officer who recorded the
statement is not available, other means of proving the
statement may not be availed of, e.g., evidence that the
statement is in the handwriting of that particular
officer.”
30. It was laid down by the Hon’ble Supreme Court in
Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4 SCC 385
that if the witness affirms the previous statement, no proof is
necessary, but if the witness denies or says that he did not
remember the previous statement, the investigating officer
should be asked about the same. It was observed: –
“52. This is the most objectionable manner of using the
police statement and we must record our emphatic
disapproval of the same. The question should have been
framed in a manner to point out that from amongst those
accused mentioned in examination-in-chief there were
some whose names were not mentioned in the police
statement and if the witness affirms this no further proof
is necessary and if the witness denies or says that she
24
2025:HHC:4599does not remember, the investigation officer should have
been questioned about it.”
31. The Gauhati High Court held in Md. Badaruddin
Ahmed v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876
that if the witness denies having made the statement, the
portion marked by the defence should be put to the investigating
officer and his version should be elicited regarding the same. It
was observed at page 1880: –
“13. The learned defence counsel has drawn our attention
to the above statement of the Investigating Officer and
submits that P.W. 4 never made his above statement
before the police and that the same being his improved
version cannot be relied upon. With the utmost respect to
the learned defence counsel, we are unable to accept his
above contention. Because, unless the particular matter
or point in the previous statement sought to be
contradicted is placed before the witness for explanation,
the previous statement cannot be used in evidence. In
other words, drawing the attention of the witness to his
previous statement sought to be contradicted and giving
all opportunities to him for explanation are compulsory.
If any authority is to be cited on this point, we may
conveniently refer to the case of Pangi Jogi
Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ
661). Further in the case of Tahsildar Singh v. State of U.P.,
reported in AIR 1959 SC 1012: (1959 Cri LJ 1231) it was also
held that the statement not reduced to writing cannot be
contradicted and, therefore, in order to show that the
statement sought to be contradicted: was recorded by the
police, it should be marked and exhibited. However, in the
case at hand, there is nothing on the record to show that
the previous statement of the witness was placed before
him and that the witness was given the chance for
25
2025:HHC:4599explanation. Again, his previous statement was not
marked and exhibited. Therefore, his previous statement
before the police cannot be used, Hence, his evidence that
when he turned back, he saw the accused Badaruddin
lowering, the gun from the chest is to be taken as his
correct version.
14. The learned defence counsel has attempted to
persuade us not to rely on the evidence of this witness on
the ground that his evidence before the trial Court is
contradicted by his previous statement made before the
police. However, in view of the decisions made in the said
cases we have been persuaded irresistibly to hold that the
correct procedure to be followed which would be in
conformity with S. 145 of the Evidence Act to contradict
the evidence given by the prosecution witness at the trial
with a statement made by him before the police during
the investigation will be to draw the attention of the
witness to that part of the contradictory statement which
he made before the police, and questioned him whether
he did, in fact, make that statement. If the witness admits
having made the particular statement to the police, that
admission will go into evidence and will be recorded as
part of the evidence of the witness and can be relied on by
the accused as establishing the contradiction. However,
if, on the other hand, the witness denies to have made
such a statement before the police, the particular portions
of the statement recorded should be provisionally marked
for identification as B-1 to B-1, B-2 to B-2 etc. (any
identification mark) and when the investigating officer
who had actually recorded the statements in question
comes into the witness box, he should be questioned as to
whether these particular statements had been made to
him during the investigation by the particular witness,
and obviously after refreshing his memory from the case
diary the investigating officer would make his answer in
the affirmative. The answer of the Investigating Officer
would prove the statements B-1 to B-1, B-2 to B-2 which
are then exhibited as Ext. D. 1, Ext. D. 2 etc. (exhibition
26
2025:HHC:4599mark) in the case and will go into evidence, and may,
thereafter, be relied on by the accused as contradictions.
In the case in hand, as was discussed in above, the above
procedure was not followed while cross-examining the
witness to his previous statements, and, therefore, we
have no alternative but to accept the statement given by
this witness before the trial Court that he saw the accused
Badaruddin lowering the gun from his chest to be his
correct version.”
32. Andhra Pradesh High Court held in Shaik Subhani v.
State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000 Cri LJ
321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the
witness and the witness denying the same does not amount to
putting the contradiction to the witness. The attention of the
witness has to be drawn to the previous statement, and if he
denies it, the statement is to be got proved by the investigating
officer. It was observed at page 290: –
“24… As far as contradictions put by the defence are
concerned, we would like to say that the defence Counsel
did not put the contradictions in the manner in which it
ought to have been put. By putting suggestions to the
witness and the witness denying the same will not
amount to putting contradiction to the witness. The
contradiction has to be put to the witness as
contemplated under Section 145 of the Evidence Act. If a
contradiction is put to the witness and it is denied by him,
then his attention has to be drawn to the statement made
by such witness before the Police or any other previous
statement and he must be given a reasonable opportunity
to explain as to why such contradiction appears and he
may give any answer if the statement made by him is
27
2025:HHC:4599shown to him and if he confronted with such a statement
and thereafter the said contradiction must be proved
through the Investigation Officer. Then only it amounts
to putting the contradiction to the witness and getting it
proved through the Investigation Officer.”
33. The Calcutta High Court took a similar view in Anjan
Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013)
2 Cal LJ 144: (2013) 3 Cal LT 193: (2013) 128 AIC 546: (2014) 2 RCR
(Cri) 970: (2013) 3 DMC 760 and held at page 151: –
“21. It was held in State of Karnataka v. Bhaskar Kushali
Kothakar, reported as (2004) 7 SCC 487 that if any
statement of the witness is contrary to the previous
statement recorded under Section 161, Cr.P.C. or suffers
from omission of certain material particulars, then the
previous statement can be proved by examining the
Investigating Officer who had recorded the same. Thus,
there is no doubt that for proving the previous statement
Investigating Officer ought to be examined, and the
statement of the witness recorded by him, can only be
proved by him and he has to depose to the extent that he
had correctly recorded the statement, without adding or
omitting, as to what was stated by the witness.
23. Proviso to Section 162(1), Cr.P.C. states in clear terms
that the statement of the witness ought to be duly proved.
The words if duly proved, cast a duty upon the accused
who wants to highlight the contradictions by confronting
the witness to prove the previous statement of a witness
through the police officer who has recorded the same in
the ordinary way. If the witness in the cross-examination
admits contradictions, then there is no need to prove the
statement. But if the witness denies a contradiction and
the police officer who had recorded the statement is
called by the prosecution, the previous statement of the
witness on this point may be proved by the police officer.
28
2025:HHC:4599
In case the prosecution fails to call the police officer in a
given situation Court can call this witness or the accused
can call the police officer to give evidence in defence.
There is no doubt that unless the statement as per proviso
to sub-section (1) of Section 162, Cr.P.C. is duly proved,
the contradiction in terms of Section 145 of the Indian
Evidence Act cannot be taken into consideration by the
Court.
24. To elaborate on this further, it will be necessary to
reproduce Section 145 of the Indian Evidence Act.
“S. 145. A witness may be cross-examined as to previous
statements made by him in writing or reduced into
writing, and relevant to matters in question, without such
writing being shown to him, or being proved; but, if it
intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him.”
25. Therefore, it is appropriate that before the previous
statement or statement under Section, 161, Cr.P.C. is
proved, the attention of the witness must be drawn to the
portion in the statement recorded by the Investigating
Officer to bring to light the contradiction, a process called
confrontation.
26. Let us first understand what is proper procedure. A
witness may have stated in the statement under Section
161, Cr.P.C. that ‘X murdered Y’. In Court witness state ‘Z
murdered Y’. This is a contradiction. Defence Counsel or
Court and even prosecution if the witness is declared
hostile having resiled from previous statement, is to be
confronted to bring contradiction on record. The
attention of the witness must be drawn to the previous
statement or statement under Section 161, Cr.P.C. where it
was stated that ‘X murdered Y’. Since Section 145 of the
Indian Evidence Act uses the word being proved,
therefore, in the course of examination of the witness,
previous statement or statement under Section 161,
29
2025:HHC:4599
Cr.P.C. will not be exhibited but shall be assigned a mark,
and the portion contradicted will be specified. The trial
Court in the event of contradiction has to record as under.
27. The attention of the witness has been drawn to
portions A to A of statement marked as 1, and confronted
with the portion where it is recorded that ‘X murdered Y’.
In this manner by way of confrontation contradiction is
brought on record. Later, when the Investigating Officer
is examined, the prosecution or defence may prove the
statement, after the Investigating Officer testifies that
the statement assigned mark was correctly recorded by
him at that stage statement will be exhibited by the Court.
Then contradiction will be proved by the Investigating
Officer by stating that the witness had informed or told
him that ‘X murdered Y’ and he had correctly recorded
this fact.
28. Now a reference to the explanation to Section 162,
Cr.P.C. which says that an omission to state a fact or
circumstance may amount to contradiction. Say for
instance if a witness omits to state in Court that ‘X
murdered Y’, what he had stated in a statement under
Section 161, Cr.P.C. will be materia? Contradiction, for
the Public Prosecutor, as the witness has resiled from
the previous statement, or if he has been sent for trial for
the charge of murder, omission to state ‘X murdered Y’
will be a material omission, and amount to contradiction
so far defence of ‘W is concerned. At that stage also
attention of the witness will be drawn to a significant
portion of the statement recorded under Section 161,
Cr.P.C. which the witness had omitted to state and note
shall be given that attention of the witness was drawn to
the portion A to A wherein it is recorded that ‘X murdered
Y’. In this way, the omission is brought on record. The
rest of the procedure stated earlier qua confrontation
shall be followed to prove the statement of the witness
and the fact stated by the witness.
29. Therefore, to prove the statement for the purpose of
contradiction it is necessary that the contradiction or
30
2025:HHC:4599
omission must be brought to the notice of the witness.
His or her attention must be drawn to the portion of the
previous statement (in the present case statement under
Section 161, Cr.P.C.)”
34. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760 wherein it was observed:
“7. When the two statements cannot stand together, they
become contradictory statements. When a witness makes
a statement in his evidence before the Court which is
inconsistent with what he has stated in his statement
recorded by the Police, there is a contradiction. When a
prosecution witness whose statement under
Section 161(1) or Section 164 of CrPC has been recorded
states factual aspects before the Court which he has not
stated in his prior statement recorded under
Section 161(1) or Section 164 of CrPC, it is said that there
is an omission. There will be an omission if the witness
has omitted to state a fact in his statement recorded by
the Police, which he states before the Court in his
evidence. The explanation to Section 162 CrPC indicates
that an omission may amount to a contradiction when it
is significant and relevant. Thus, every omission is not a
contradiction. It becomes a contradiction provided it
satisfies the test laid down in the explanation under
Section 162. Therefore, when an omission becomes a
contradiction, the procedure provided in the proviso to
sub-Section (1) of Section 162 must be followed for
contradicting witnesses in the cross-examination.
8. As stated in the proviso to sub-Section (1) of section
162, the witness has to be contradicted in the manner
provided under Section 145 of the Evidence Act. Section
145 reads thus:
“145. Cross-examination as to previous
statements in writing.–A witness may be cross-
examined as to previous statements made by him in
writing or reduced into writing, and relevant to
31
2025:HHC:4599matters in question, without such writing being shown
to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must,
before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him.”
The Section operates in two parts. The first part
provides that a witness can be cross-examined as to his
previous statements made in writing without such
writing being shown to him. Thus, for example, a witness
can be cross-examined by asking whether his prior
statement exists. The second part is regarding
contradicting a witness. While confronting the witness
with his prior statement to prove contradictions, the
witness must be shown his prior statement. If there is a
contradiction between the statement made by the witness
before the Court and what is recorded in the statement
recorded by the police, the witness’s attention must be
drawn to specific parts of his prior statement, which are
to be used to contradict him. Section 145 provides that the
relevant part can be put to the witness without the
writing being proved. However, the previous statement
used to contradict witnesses must be proved
subsequently. Only if the contradictory part of his
previous statement is proved the contradictions can be
said to be proved. The usual practice is to mark the
portion or part shown to the witness of his prior
statement produced on record. Marking is done
differently in different States. In some States, practice is
to mark the beginning of the portion shown to the
witness with an alphabet and the end by marking with the
same alphabet. While recording the cross-examination,
the Trial Court must record that a particular portion
marked, for example, as AA was shown to the witness.
Which part of the prior statement is shown to the witness
for contradicting him has to be recorded in the cross-
examination. If the witness admits to having made such a
prior statement, that portion can be treated as proved. If
32
2025:HHC:4599
the witness does not admit the portion of his prior
statement with which he is confronted, it can be proved
through the Investigating Officer by asking whether the
witness made a statement that was shown to the witness.
Therefore, if the witness is intended to be confronted
with his prior statement reduced into writing, that
particular part of the statement, even before it is proved,
must be specifically shown to the witness. After that, the
part of the prior statement used to contradict the witness
has to be proved. As indicated earlier, it can be treated as
proved if the witness admits to having made such a
statement, or it can be proved in the cross-examination
of the concerned police officer. The object of this
requirement in Section 145 of the Evidence Act of
confronting the witness by showing him the relevant part
of his prior statement is to give the witness a chance to
explain the contradiction. Therefore, this is a rule of
fairness.
9. If a former statement of the witness is inconsistent
with any part of his evidence given before the Court, it
can be used to impeach the credit of the witness in
accordance with clause (3) of Section 155 of the Evidence
Act, which reads thus:
“155. Impeaching credit of witness. — The credit
of a witness may be impeached in the following ways
by the adverse party, or, with the consent of the Court,
by the party who calls him–
(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted.”
It must be noted here that every contradiction or
omission is not a ground to discredit the witness or to
disbelieve his/her testimony. A minor or trifle omission
or contradiction brought on record is not sufficient to
disbelieve the witness’s version. Only when there is a
33
2025:HHC:4599
material contradiction or omission can the Court
disbelieve the witness’s version either fully or partially.
What is a material contradiction or omission depending
upon the facts of each case? Whether an omission is a
contradiction also depends on the facts of each individual
case.
10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar
Singh v. State of U.P.1959 Supp (2) SCR 875 Paragraph 13 of
the said decision reads thus:
“13. The learned counsel’s first argument is based
upon the words “in the manner provided by
Section 145 of the Indian Evidence Act, 1872″ found in
Section 162 of the Code of Criminal Procedure. Section
145 of the Evidence Act, it is said, empowers the
accused to put all relevant questions to a witness
before his attention is called to those parts of the
writing with a view to contradict him. In support of
this contention, reliance is placed upon the judgment
of this Court in Shyam Singh v. State of Punjab [(1952) 1
SCC 514: 1952 SCR 812]. Bose, J. describes the procedure
to be followed to contradict a witness under Section
145 of the Evidence Act thus at p. 819:
Resort to Section 145 would only be necessary if
the witness denies that he made the former
statement. In that event, it would be necessary to
prove that he did, and if the former statement was
reduced to writing, then Section 145 requires that his
attention must be drawn to these parts which are to
be used for contradiction. But that position does not
arise when the witness admits the former
statement. In such a case all that is necessary is to
look to the former statement of which no further
proof is necessary because of the admission that it
was made.”
It is unnecessary to refer to other cases wherein a
similar procedure is suggested for putting questions
34
2025:HHC:4599
under Section 145 of the Indian Evidence Act, for the
said decision of this Court and similar decisions were
not considering the procedure in a case where the
statement in writing was intended to be used for
contradiction under Section 162 of the Code of
Criminal Procedure. Section 145 of the Evidence Act is in
two parts: the first part enables the accused to cross-
examine a witness as to a previous statement made by
him in writing or reduced to writing without such writing
being shown to him; the second part deals with a situation
where the cross-examination assumes the shape of
contradiction: in other words, both parts deal with cross-
examination; the first part with cross-examination other
than by way of contradiction, and the second with cross-
examination by way of contradiction only. The procedure
prescribed is that, if it is intended to contradict a witness
by the writing, his attention must, before the writing can
be proved, be called to those parts of it which are to be
used for the purpose of contradicting him. The proviso to
Section 162 of the Code of Criminal Procedure only
enables the accused to make use of such a statement to
contradict a witness in the manner provided by Section
145 of the Evidence Act. It would be doing violence to the
language of the proviso if the said statement be allowed to
be used for the purpose of cross-examining a witness
within the meaning of the first part of Section 145 of the
Evidence Act. Nor are we impressed by the argument that
it would not be possible to invoke the second part of
Section 145 of the Evidence Act without putting relevant
questions under the first part thereof. The difficulty is
more imaginary than real. The second part of Section 145
of the Evidence Act clearly indicates the simple procedure
to be followed. To illustrate: A says in the witness box that
B stabbed C; before the police, he had stated that D
stabbed C. His attention can be drawn to that part of the
statement made before the police which contradicts his
statement in the witness box. If he admits his previous
statement, no further proof is necessary; if he does not
admit it, the practice generally followed is to admit it
35
2025:HHC:4599
subject to proof by the police officer. On the other hand,
the procedure suggested by the learned counsel may be
illustrated thus: If the witness is asked “Did you say
before the police officer that you saw a gas light?” and
he answers “yes”, then the statement which does not
contain such recital is put to him as a contradiction.
This procedure involves two fallacies: one is it enables
the accused to elicit by a process of cross-examination
what the witness stated before the police officer. If a
police officer did not make a record of a witness’s
statement, his entire statement could not be used for
any purpose, whereas if a police officer recorded a few
sentences, by this process of cross-examination, the
witness’s oral statement could be brought on record.
This procedure, therefore, contravenes the express
provision of Section 162 of the Code. The second
fallacy is that by the illustration given by the learned
counsel for the appellants, there is no self-
contradiction of the primary statement made in the
witness box, for the witness has yet not made on the
stand any assertion at all which can serve as the basis.
The contradiction, under the section, should be
between what a witness asserted in the witness box
and what he stated before the police officer, and not
between what he said he had stated before the police
officer and what he actually made before him. In such
a case the question could not be put at all: only
questions to contradict can be put and the question
here posed does not contradict; it leads to an answer
which is contradicted by the police statement. This
argument of the learned counsel based upon Section
145 of the Evidence Act is, therefore, not of any
relevance in considering the express provisions of
Section 162 of the Code of Criminal Procedure.”
(emphasis added)
This decision is a locus classicus, which will continue to
guide our Trial Courts. In the facts of the case, the learned
Trial Judge has not marked those parts of the witnesses’
36
2025:HHC:4599
prior statements based on which they were sought to be
contradicted in the cross-examination.”
35. It was laid down by the Hon’ble Supreme Court in
Matadin v. State of U.P., 1980 Supp SCC 157: 1979 SCC (Cri) 627 that
the statement under Section 161 Cr.PC is not detailed and is
meant to be brief. It does not contain all the details. It was
observed at page 158:
“3. The learned Sessions Judge had rejected the evidence
of the eyewitnesses on wrong, unconvincing and unsound
reasons. The Sessions Judge appears to have been swayed
by some insignificant omissions made by some of the
witnesses in their statement before the police and on the
basis of these omissions dubbed the witnesses as liars.
The Sessions Judge did not realise that the statements
given by the witnesses before the police were meant to be
brief statements and could not take the place of evidence
in the Court. Where the omissions are vital, they merit
consideration, but mere small omissions will not justify a
finding by a court that the witnesses concerned are self-
contained liars. We have carefully perused the judgment
of the Sessions Judge and we are unable to agree that the
reasons that he has given for disbelieving the witnesses
are good or sound reasons. The High Court was, therefore,
fully justified in reversing the judgment passed by the
trial court. We are satisfied that this is a case where the
judgment of the Sessions Judge was manifestly wrong and
perverse and was rightly set aside by the High Court. It
was urged by Mr Mehta that as other appellants except
Matadin and Dulare do not appear to have assaulted the
deceased, so they should be acquitted of the charge under
Section 149. We, however, find that all the appellants
were members of the unlawful assembly. Their names
find a place in the FIR. For these reasons, we are unable to
find any ground to distinguish the case of those
37
2025:HHC:4599appellants from that of Matadin and Dulare. The
argument of the learned counsel is overruled. The result is
that the appeal fails and is accordingly dismissed. The
appellants who are on bail, will now surrender to serve
out the remaining portion of their sentence.”
36. Similar is the judgment in Esher Singh v. State of A.P.,
(2004) 11 SCC 585: 2004 SCC OnLine SC 320 wherein it was held at
page 601:
“23. So far as the appeal filed by accused Esher Singh is
concerned, the basic question is that even if the
confessional statement purported to have been made by
A-5 is kept out of consideration, whether residuary
material is sufficient to find him guilty. Though it is true
as contended by learned counsel for the accused-
appellant Esher Singh that some statements were made
for the first time in court and not during
the investigation, it has to be seen as to what extent they
diluted the testimony of Balbeer Singh and Dayal Singh
(PWs 16 and 32) used to bring home the accusations. A
mere elaboration cannot be termed as a discrepancy.
When the basic features are stated, unless the elaboration
is of such a nature that it creates a different contour or
colour of the evidence, the same cannot be said to have
totally changed the complexion of the case. It is to be
noted that in addition to the evidence of PWs 16 and 32,
the evidence of S. Narayan Singh (PW 21) provides the
necessary links and strengthens the prosecution version.
We also find substance in the plea taken by learned
counsel for the State that evidence of Amar Singh Bungai
(PW 24) was not tainted in any way, and should not have
been discarded and disbelieved only on surmises. Balbir
Singh (PW 3), the son of the deceased has also stated
about the provocative statements in his evidence. Darshan
Singh (PW 14) has spoken about the speeches of the
accused Esher Singh highlighting the Khalistan
38
2025:HHC:4599movement. We find that the trial court had not given
importance to the evidence of some of the witnesses on
the ground that they were relatives of the deceased. The
approach is wrong. The mere relationship does not
discredit the testimony of a witness. What is required is
careful scrutiny of the evidence. If after careful scrutiny
the evidence is found to be credible and cogent, it can be
acted upon. In the instant case, the trial court did not
indicate any specific reason to cast doubt on the veracity
of the evidence of the witnesses whom it had described to
be the relatives of the deceased. PW 24 has categorically
stated about the provocative speeches by A-1. No definite
cross-examination on the provocative nature of speech
regarding the Khalistan movement was made, so far as
this witness is concerned.”
37. This position was reiterated in Shamim v. State (NCT
of Delhi), (2018) 10 SCC 509: (2019) 1 SCC (Cri) 319: 2018 SCC
OnLine SC 1559 where it was held at page 513:
“12. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole inspires confidence. 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 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,
a hypertechnical approach by taking sentences torn out of
context here or there from the evidence, and attaching
importance to some technical error without going to the
root of the matter would not ordinarily permit rejection
of the evidence as a whole. Minor omissions in the police
statements are never considered to be fatal. The
39
2025:HHC:4599statements given by the witnesses before the police are
meant to be brief statements and could not take the place
of evidence in the court. Small/trivial omissions would
not justify a finding by the court that the witnesses
concerned are liars. The prosecution evidence may suffer
from inconsistencies here and discrepancies there, but
that is a shortcoming from which no criminal case is free.
The main thing to be seen is whether those
inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof. In the former case, the
defence may be justified in seeking advantage of
incongruities obtained in the evidence. In the latter,
however, no such benefit may be available to it.”
38. Similar is the judgment in Kalabhai Hamirbhai
Kachhot v. State of Gujarat, (2021) 19 SCC 555: 2021 SCC OnLine SC
347 wherein it was observed at page 564:
“22. We also do not find any substance in the argument of
the learned counsel that there are major contradictions in
the deposition of PWs 18 and 19. The contradictions which
are sought to be projected are minor contradictions which
cannot be the basis for discarding their evidence. The
judgment of this Court in Mohar [Mohar v. State of U.P.,
(2002) 7 SCC 606: 2003 SCC (Cri) 121] relied on by the
learned counsel for the respondent State supports the
case of the prosecution. In the aforesaid judgment, this
Court has held that convincing evidence is required, to
discredit an injured witness. Para 11 of the judgment reads
as under: (SCC p. 611)
“11. The testimony of an injured witness has its own
efficacy and relevancy. The fact that the witness
sustained injuries on his body would show that he was
present at the place of occurrence and had seen the
occurrence by himself. Convincing evidence would be
required to discredit an injured witness. Similarly,
every discrepancy in the statement of a witness cannot
40
2025:HHC:4599be treated as fatal. A discrepancy which does not affect
the prosecution case materially cannot create any
infirmity. In the instant case, the discrepancy in the
name of PW 4 appearing in the FIR and the cross-
examination of PW 1 has been amply clarified. In
cross-examination, PW 1 clarified that his brother
Ram Awadh had three sons: (1) Jagdish, PW 4, (2)
Jagarnath, and (3) Suresh. This witness, however,
stated that Jagarjit had only one name. PW 2 Vibhuti,
however, stated that at the time of occurrence, the son
of Ram Awadh, Jagjit alias Jagarjit was milching a cow
and he was also called as Jagdish. Balli (PW 3)
mentioned his name as Jagjit and Jagdish. PW 4 also
gave his name as Jagdish.”
23. The learned counsel for the respondent State has
also relied on the judgment of this Court in Naresh [State
of U.P. v. Naresh, (2011) 4 SCC 324: (2011) 2 SCC (Cri) 216].
In the aforesaid judgment, this Court has held that the
evidence of injured witnesses cannot be brushed aside
without assigning cogent reasons. Paras 27 and 30 of the
judgment which are relevant, read as under: (SCC pp. 333-
34)
“27. The evidence of an injured witness must be
given due weightage being a stamped witness, thus,
his presence cannot be doubted. His statement is
generally considered to be very reliable and it is
unlikely that he has spared the actual assailant in
order to falsely implicate someone else. The testimony
of an injured witness has its own relevancy and
efficacy as he has sustained injuries at the time and
place of occurrence and this lends support to his
testimony that he was present during the occurrence.
Thus, the testimony of an injured witness is accorded a
special status in law. The witness would not like or
want to let his actual assailant go unpunished merely
to implicate a third person falsely for the commission
of the offence. Thus, the evidence of the injured
witness should be relied upon unless there are grounds
41
2025:HHC:4599
for the rejection of his evidence on the basis of major
contradictions and discrepancies therein. (Vide Jarnail
Singh v. State of Punjab [Jarnail Singh v. State of Punjab,
(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], Balraje v. State
of Maharashtra [Balraje v. State of Maharashtra, (2010)
6 SCC 673 : (2010) 3 SCC (Cri) 211] and Abdul
Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P.,
(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )
***
30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
dispositions such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record
a finding as to whether his deposition inspires
confidence.
‘9. Exaggerations per se do not render the evidence
brittle. But it can be one of the factors to test
the credibility of the prosecution version when the
entire evidence is put in a crucible for being tested on
the touchstone of credibility.’ [Ed.: As observed
in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9
SCC 186, p. 192, para 9: 2004 SCC (Cri) 1435]
Therefore, mere marginal variations in the statements
of a witness cannot be dubbed as improvements as the
same may be elaborations of the statement made by
42
2025:HHC:4599
the witness earlier. The omissions which amount to
contradictions in material particulars i.e. go to the root
of the case/materially affect the trial or core of the
prosecution’s case, render the testimony of the
witness liable to be discredited. (Vide State v.
Saravanan [State v. Saravanan, (2008) 17 SCC 587 :
(2010) 4 SCC (Cri) 580], Arumugam v.
State [Arumugam v. State, (2008) 15 SCC 590 : (2009) 3
SCC (Cri) 1130], Mahendra Pratap Singh v. State of
U.P. [Mahendra Pratap Singh v. State of U.P., (2009) 11
SCC 334 : (2009) 3 SCC (Cri) 1352] and Sunil Kumar
Sambhudayal Gupta v. State of Maharashtra [Sunil
Kumar Sambhudayal Gupta v. State of Maharashtra,
(2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375]”
24. Further, in Narayan Chetanram Chaudhary v. State
of Maharashtra [Narayan Chetanram Chaudhary v. State of
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], this
Court has considered the effect of the minor
contradictions in the depositions of witnesses while
appreciating the evidence in a criminal trial. In the
aforesaid judgment, it is held that only contradictions in
material particulars and not minor contradictions can be
grounds to discredit the testimony of the witnesses. The
relevant portion of para 42 of the judgment reads as
under: (SCC p. 483)
“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
43
2025:HHC:4599to 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.”
39. It was laid down by the Hon’ble Supreme Court in
Achchar Singh vs State of H.P. AIR 2021 SC 3426 that the testimony
of a witness cannot be discarded due to exaggeration alone. It
was observed:
“24. It is vehemently contended that the evidence of the
prosecution witnesses is exaggerated and thus false.
Cambridge Dictionary defines “exaggeration” as “the fact
of making something larger, more important, better or
worse than it is”. Merriam-Webster defines the term
“exaggerate” as to “enlarge beyond bounds or the truth”.
The Concise Oxford Dictionary defines it as “enlarged or
altered beyond normal proportions”. These expressions
unambiguously suggest that the genesis of an
‘exaggerated statement’ lies in a fact, to which fictitious
additions are made to make it more penetrative. Every
exaggeration, therefore, has the ingredients of ‘truth’. No
exaggerated statement is possible without an element of
truth. On the other hand, the Advance Law Lexicon
defines “false” as “erroneous, untrue; opposite of correct,
or true”. Oxford Concise Dictionary states that “false” is
“wrong; not correct or true”. Similar is the explanation in
other dictionaries as well. There is, thus, a marked
differential between an ‘exaggerated version’ and a ‘false
version’. An exaggerated statement contains both truth
and falsity, whereas a false statement has no grain of
truth in it (being the ‘opposite’ of ‘true’). It is well said
that to make a mountain out of a molehill, the molehill
shall have to exist primarily. A Court of law, being
mindful of such distinction is duty bound to disseminate
‘truth’ from ‘falsehood’ and sift the grain from the chaff
44
2025:HHC:4599
in case of exaggerations. It is only in a case where the
grain and the chaff are so inextricably intertwined that in
their separation no real evidence survives, that the whole
evidence can be discarded. [Sucha Singh v. State of Punjab,
(2003) 7 SCC 643, 18.]
25. Learned State counsel has rightly relied on Gangadhar
Behera (Supra) to contend that even in cases where a
major portion of the evidence is found deficient if the
residue is sufficient to prove the guilt of the accused, a
conviction can be based on it. This Court in Hari Chand v.
State of Delhi, (1996) 9 SCC 112 held that:
“24. …So far as this contention is concerned it
must be kept in view that while appreciating the
evidence of witnesses in a criminal trial, especially
in a case of eyewitnesses the maxim falsus in uno,
falsus in omnibus cannot apply and the court has to
make efforts to sift the grain from the chaff. It is of
course true that when a witness is said to have
exaggerated in his evidence at the stage of trial
and has tried to involve many more accused and if
that part of the evidence is not found acceptable
the remaining part of the evidence has to be
scrutinised with care and the court must try to see
whether the acceptable part of the evidence gets
corroborated from other evidence on record so
that the acceptable part can be safely relied
upon…”
26. There is no gainsaid that homicidal deaths cannot be
left to judicium dei. The Court in their quest to reach the
truth ought to make earnest efforts to extract gold out of
the heap of black sand. The solemn duty is to dig out the
authenticity. It is only when the Court, despite its best
efforts, fails to reach a firm conclusion that the benefit of
the doubt is extended.
27. An eye-witness is always preferred to others. The
statements of P.W.1, P.W.11 and P.W.12 are, therefore, to
be analysed accordingly, while being mindful of the
45
2025:HHC:4599
difference between exaggeration and falsity. We find that
the truth can be effortlessly extracted from their
statements. The trial Court fell in grave error and
overlooked the credible and consistent evidence while
proceeding with a baseless premise that the exaggerated
statements made by the eyewitnesses belie their version.”
40. In the present case, the omission is regarding the
registration number and the ownership of the vehicle, which is a
minor detail and cannot be used to discard the prosecution case
regarding the presence of the police party on the spot. Further,
the Investigating Officer was not asked about the fact whether
HC Ranjit Singh had told him that the accused had tried to run
away or not. Hence, the contradiction has not been proved as
per the law, and no advantage can be derived from the cross-
examination.
41. The statements of prosecution witnesses show that
the police party was proceeding in the car when they saw the
accused who returned after seeing the headlight of the vehicle.
The police became suspicious and apprehended the accused.
Thus, it was a case of a chance of recovery.
42. The term chance recovery was explained by the
Hon’ble Supreme Court in the State of H.P. v. Sunil Kumar, (2014)
4 SCC 780: (2014) 2 SCC (Cri) 449: 2014 SCC OnLine SC 205, and it
46
2025:HHC:4599
was held that chance recovery means a recovery made by chance
or by accident or unexpectedly. When the police were not
looking for the drugs nor expected to find the drugs, any
recovery is a chance recovery. A positive suspicion of the police
official is not sufficient to show that it was not the case of
chance recovery. It was observed at page 784:
“13. The expression “chance recovery” has not been
defined anywhere and its plain and simple meaning
seems to be a recovery made by chance or by accident or
unexpectedly. In Mohinder Kumar v. State [(1998) 8 SCC
655: 1999 SCC (Cri) 79] this Court considered a chance
recovery as one when a police officer “stumbles on”
narcotic drugs when he makes a search. In Sorabkhan
Gandhkhan Pathan v. State of Gujarat [(2004) 13 SCC 608:
(2006) 1 SCC (Cri) 508] the police officer, while searching
for illicit liquor, accidentally found some charas. This was
treated as a “chance recovery”.
14. Applying this to the facts of the present appeal, it is
clear that the police officers were looking for passengers
who were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried by
a passenger. This can only be described as a recovery by
chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.
15. It is not possible to accept the view of the High Court
that since the police officers conducted a random search
and had a “positive suspicion” that Sunil Kumar was
carrying contraband, the recovery of charas from his
person was not a chance recovery. The recovery of
contraband may not have been unexpected, but the
recovery of charas certainly was unexpected
notwithstanding the submission that drugs are easily
47
2025:HHC:4599
available in the Chamba area. The police officers had no
reason to believe that Sunil Kumar was carrying any
drugs and indeed that is also not the case set up in this
appeal. It was plainly a chance or accidental or
unexpected recovery of charas–Sunil Kumar could well
have been carrying any other contraband such as,
smuggled gold, stolen property or an illegal firearm or
even some other drug.
43. In the present case also, the police stopped the
accused when he tried to return after seeing the headlights of
the car. There is nothing on record to show that the police had
any prior information, and the present case will fall within
chance recovery.
44. It was submitted that the police had not associated
independent witnesses, and this is fatal to the prosecution case.
This submission is not acceptable. It was laid down by the
Hon’ble Supreme Court in Kashmira Singh Versus State of Punjab
1999 (1) SCC 130 that the police party is under no obligation to
join independent witnesses while going on patrolling duty, and
the association of any person after effecting the recovery would
be meaningless. It was observed:
“3. Learned counsel for the appellant has taken us
through the evidence recorded by the prosecution as also
the judgment under appeal. Except for the comment that
the prosecution is supported by two police officials and
not by any independent witness, no other comment
48
2025:HHC:4599against 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.”
45. 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 searched and charas was
recovered. After the recovery of Charas, there was hardly any
need to associate any person from the nearby village, because
there remained nothing to be witnessed.
It is by now well settled that non-association of
independent witnesses or non-supporting of the
prosecution version, by independent witnesses where
they are associated, by itself is not a ground to acquit an
accused. It is also well-settled that the testimony of
official witnesses, including police officials, carries the
same evidentiary value as the testimony of any other
person. The only difference is that Courts have to be
49
2025:HHC:4599
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
scrutinizing 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)
46. 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
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.”
47. This position was reiterated in Rizwan Khan v. State
of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730,
wherein, it was observed on page 633:
50
2025:HHC:4599
“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 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 was
falsely implicated. The evidence of official witnesses
cannot be distrusted and disbelieved, merely on
account of their official status.
16. In State (NCT of Delhi) v. Sunil [State (NCT of
Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it
was held as under : (SCC p. 655)
‘It is an archaic notion that actions of the police
officer should be approached with initial distrust. It
is time now to start placing at least initial trust in
the actions and the documents made by the police.
At any rate, the court cannot start with the
presumption that the police records are
untrustworthy. As a proposition of law, the
51
2025:HHC:4599
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.'”
48. 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.”
49. This position was reiterated in Kallu Khan v. State of
Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it
was held at page 204: –
“17. The issue raised regarding conviction solely relying
upon the testimony of police witnesses, without
procuring any independent witness, recorded by the two
courts, has also been dealt with by this Court in Surinder
Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563
: (2020) 1 SCC (Cri) 767] holding that merely because
independent witnesses were not examined, the
conclusion could not be drawn that the accused was
falsely implicated. Therefore, the said issue is also well
settled and in particular, looking at the facts of the
present case, when the conduct of the accused was found
suspicious and a chance recovery from the vehicle used by
52
2025:HHC:4599him 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..”
50. 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, 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
53
2025:HHC:4599Court 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 police, a subsequent
association of independent witnesses, 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.”
51. 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
54
2025:HHC:4599
witnesses. However, the Court will have to carefully scrutinise
the testimonies of the police officials.
52. It was submitted that HC Ranjit Singh (PW-1)
contradicted himself by saying that his statement was recorded
by HC Sanjay Kumar (PW-10) as per his dictation and thereafter
by saying that he recorded the statement himself. This shows
that the witness is not reliable. Further, HC Ranjit Singh stated
that four NCB-I Forms were filled on the spot by the
Investigating Officer, whereas HC Sanjay Kumar (PW-10) stated
that NCB-I forms were filled by him in triplicate. These
contradictions are fatal to the prosecution case. This
submission cannot be accepted.
53. 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, as under at page 378: –
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:
55
2025:HHC:4599
“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.
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
56
2025:HHC:4599two 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,
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
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
57
2025:HHC:4599nervousness, 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.
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]]
54. 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
58
2025:HHC:4599whether 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 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.”
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
59
2025:HHC:4599
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 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
60
2025:HHC:4599
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.
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.
***
61
2025:HHC:4599
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.”
55. 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 armed with guns and
62
2025:HHC:4599they 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.”
56. Therefore, in view of the binding precedents of the
Hon’ble Supreme Court, the statements of the witnesses cannot
be discarded due to omissions, contradictions or discrepancies.
The Court has to see whether the discrepancies affect the
63
2025:HHC:4599
prosecution case adversely or not and whether they are related
to the core of the prosecution case or the details.
57. The learned trial court had rightly pointed out that
the incident occurred on 10.08.2009, and HC Ranjit Singh
(PW-1) made the statement on 13.07.2010 after the expiry of 11
months from the date of the incident. The memories fail, and a
person cannot be expected to remember the incident in graphic
details and reproduce the same as if he is a video recorder. Minor
contradictions in the statement of witnesses show the
truthfulness of the witnesses rather than their falsehood. Thus,
the learned Trial Court had rightly held that these contradictions
were not sufficient to discard the prosecution case.
58. It was submitted that documents mention the F.I.R.
number, which shows that F.I.R. was ante-timed. This
submission was rightly rejected by the learned Trial Court. The
seizure memo does not mention the FIR number. This document
was prepared before the registration of the FIR. The FIR number
was mentioned in other documents prepared subsequently.
Hence, the inference cannot be drawn that the FIR was ante-
timed.
64
2025:HHC:4599
59. The statements of police officials are consistent, and
there are no major contradictions in the statements. Learned
Trial Court had rightly held that the testimonies of official
witnesses cannot be discarded because they happen to be official
witnesses. 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:
“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.”
60. It was submitted that Reasons of Belief were
mentioned after the incident, which is a violation of Section 42
of the NDPS Act. This submission will not help the defence. It
was specifically stated by the witnesses that the accused was
walking carrying a blue bag. Thus, 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
65
2025:HHC:4599
Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal
2018 (9) SCC 708 that Section 42 does not apply to the search
made of a person walking in an open space. It was observed: –
12. An empowered officer under Section 42(1) is obligated
to reduce to writing the information received by him, only
when an offence punishable under the Act has been
committed in any building, conveyance or an enclosed
place, or when a document or an article is concealed in a
building, conveyance or an enclosed place. Compliance
with Section 42, including recording of information
received by the empowered officer, is not mandatory
when an offence punishable under the Act was not
committed in a building, conveyance or an enclosed place.
Section 43 is attracted in situations where the seizure and
arrest are conducted in a public place, which includes any
public conveyance, hotel, shop, or other place intended
for use by, or accessible to, the public.
13. The appellant was walking along Picnic Garden Road.
He was intercepted and detained immediately by the
raiding party in front of Falguni Club, which was not a
building, conveyance or an enclosed place. The place of
occurrence was accessible to the public and fell within the
ambit of the phrase “public place” in the explanation to
Section 43. Section 42 had no application.”
61. Thus, there was no requirement of compliance with
the provisions of Section 42 of the ND&PS Act, and the
prosecution case cannot be doubted due to non-compliance of
Section 42 of the ND&PS Act.
62. HC Sanjay Kumar (PW-10) stated that he produced
the case property and the accused before SHO Karam Chand
66
2025:HHC:4599
(PW-6). SHO Karam Chand (PW-6) stated that HC Sanjay
Kumar (PW-10) produced a blue bag sealed with seal ‘J”, sample
seal and NCB form. He (ASI Karam Chand) resealed the bag with
seal ‘S’. He obtained the sample seal and handed over the
articles to HC Santosh Kumar (PW-7). HC Santosh Kumar
(PW-7) stated that ASI Karam Chand deposited a blue bag sealed
with seal impressions ‘J and S’, sample seals, and an NCB-I
form. He made the entry and handed them over to HHC Jagdev
Chand (PW-8). HHC Jagdev Chand (PW-8) stated that HC
Santosh Kumar (PW-7) handed over a bag sealed with seal
impressions ‘J and S’, sample seals, NCB-I form, copy of F.I.R.
and docket to him with a direction to carry them to SFSL Junga.
He deposited all the articles at SFSL, Junga. The report of
analysis Ext.PX shows that the sealed gunny bag bearing one
seal of ‘J’ and resealed with one seal of ‘S’ was analysed. The
seal were intact and tallied with the seal impression sent by SHO
on the NCB-I form. Therefore, it is apparent that the seals
remain intact till the analysis of the case property.
63. It was held in Baljit Sharma vs. State of H.P 2007 HLJ
707, where the report of analysis shows that the seals were
67
2025:HHC:4599
intact, the case of the prosecution that the case property
remained intact is to be accepted as correct. It was observed:
“A perusal of the report of the expert Ex.PW8/A shows
that the samples were received by the expert in a safe
manner, and the sample seal 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.”
64. 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.”
65. 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
68
2025:HHC:4599
found to be intact, which would rule out the possibility of
tampering. It was observed:
“The prosecution has been able to establish and prove
that the aforesaid bags, which were 35 in number,
contained poppy husk, and accordingly, the same were
seized after taking samples therefrom which were
properly sealed. The defence has not been able to prove
that the aforesaid seizure and seal put in the samples were
in any manner tampered with before it was examined by
the Chemical Examiner. There was merely a delay of about
seven days in sending the samples to the Forensic
Examiner, and it is not proved as to how the aforesaid
delay of seven days has affected the said examination
when it could not be proved that the seal of the sample
was in any manner tampered with. The seal having been
found intact at the time of the 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.”
69
2025:HHC:4599
66. Similar is the judgment of the Hon’ble Supreme
Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563,
wherein it was held:-
“10. According to learned senior counsel for the appellant,
Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3)
handed over the case property for producing the same
before the Illaqa Magistrate and who returned the same to
him after such production was not examined, as such, link
evidence, was incomplete. In this regard, it is to be
noticed that Yogi Raj SHO handed over the case property
to Joginder Singh, ASI, for production before the Court.
After producing the case property before the Court, he
returned the case property to Yogi Raj, SHO (PW-3), with
the seals intact. It is also to be noticed that Joginder
Singh, ASI, was not in possession of the seals of either the
investigating officer or Yogi Raj, SHO. He produced the
case property before the Court on 13.09.1996 vide
application Ex.P-13. The concerned Judicial Magistrate of
First Class, after verifying the seals on the case property,
passed the order Ex.P-14 to the effect that since there was
no judicial malkhana at Abohar, the case property was
ordered to be kept in safe custody, in Police Station
Khuian Sarwar till further orders. Since Joginder Singh,
ASI, was not in possession of the seals of either the SHO or
the Investigating Officer, the question of tampering with
the case property by him did not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate, with
the seals intact, to Yogi Raj, SHO. In that view of the
matter, the Trial Court and the High Court have rightly
held that the non-examination of Joginder Singh did not,
in any way, affect the case of the prosecution. Further, it is
evident from the report of the Chemical Examiner, Ex.P-10,
that the sample was received with seals intact and that the
seals on the sample tallied with the sample seals. In that view
70
2025:HHC:4599of the matter, the chain of evidence was complete.”
(Emphasis supplied)
67. Therefore, the prosecution version is to be accepted
as correct that the case property remained intact till its analysis
at SFSL, Junga.
68. The result of the analysis shows that the substance
analysed was poppy straw, therefore, it was duly proved on
record that accused was found in possession of 11.5 kg of opium
Poppy straw.
69. It was submitted that there is a violation of Section
55 of the NDPS Act. This submission is not acceptable. HC Sanjay
Kumar (PW-10) stated that he sent the Special Report to the
Superintendent of Police Una through HC Ranjit Singh (PW-1).
HC Ranjit Singh (PW-1) stated that HC Sanjay Kumar (PW-10)
handed over the Special report to him on 12.08.2009, and he
handed it over to the office of S.P. Una against the receipt
(Ext.PC). He identified the Special Report.
70. ASI Surjit Singh (PW-5) stated that a Special report
relating to this case was received in the office of S.P. Una
through HC Ranjit Singh (PW-1). The S.P., Una, went through
the Special Report and handed it over to ASI Surjit Singh (PW-5).
71
2025:HHC:4599
He identified the report (Ext.PC). These statements are duly
corroborated by the endorsement made on the Special Report.
The recovery was effected on 10.08.2009, and the report was
sent on 12.08.2009 within 72 hours, and there is sufficient
compliance with Section 55 of the NDPS Act.
71. Therefore, the learned Trial Court had rightly
convicted the accused for the commission of an offence
punishable under Section 15 of the NDPS Act.
72. It was submitted that the learned Trial Court had
imposed an excessive sentence. This is not acceptable. The
Central Government has prescribed 1 kg as a small quantity and
50 kg as a commercial quantity in the case of poppy straw. The
accused was found in possession of 11 times the small quantity.
11.5 kg Opium Poppy straw could not have been meant for
personal consumption. The offences involving narcotics affect
not only the person but the society at large. It was held in Union
of India v. Mahaboob Alam, (2004) 4 SCC 105: 2004 SCC (Cri) 912:
2004 SCC OnLine SC 280, that a murderer commits the murder of
one or two persons while a person dealing in Narcotic Drugs
72
2025:HHC:4599inflicts death blow to many innocent young victims. It was
observed:
“8. In the case of Dadu v. State of Maharashtra [(2000) 8 SCC
437: 2000 SCC (Cri) 1528] this Court held that though a part of
Section 32-A insofar as it ousts the jurisdiction of the court to
suspend the sentence awarded to the convict under the Act is
unconstitutional, still held that the whole of the section would
not be invalid and the restriction imposed by the offending
section was distinct and severable. It further held that the
legislative mandate under that section has to be followed by
the courts while granting bail to the offenders under the Act. It
also held [ at SCC p. 456, para 28 quoting from Union of
India v. Ram Samujh, (1999) 9 SCC 429, pp. 431-32, para 7] that
the court should bear in mind “that in a murder case, the
accused commits the murder of one or two persons, while
those persons who are dealing in narcotic drugs are
instrumental in causing death or in inflicting death-blow to a
number of innocent young victims, who are vulnerable; it
causes deleterious effects and a deadly impact on the society;
they are a hazard to the society; even if they are released
temporarily, in all probability, they would continue their
nefarious activities of trafficking and/or dealing in intoxicants
clandestinely. The reason may be large stake and illegal profit
involved”.
In the said judgment this Court also relied on the following
passage with approval in the case of Durand Didier v. Chief
Secy., Union Territory of Goa [(1990) 1 SCC 95: 1990 SCC (Cri) 65]
in the following words: (SCC p. 104, para 24)
“24. With deep concern, we may point out that the
organised activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal
trafficking in such drugs and substances have led to drug
addiction among a sizeable section of the public,
particularly the adolescents and students of both sexes
and the menace has assumed serious and alarming
proportions in the recent years. Therefore, in order to
effectively control and eradicate this proliferating and
booming devastating menace, causing deleterious effects
73
2025:HHC:4599
and deadly impact on the society as a whole, Parliament
in its wisdom, has made effective provisions by
introducing Act 81 of 1985 specifying mandatory
minimum imprisonment and fine.”
73. Therefore, a deterrent sentence has to be imposed to
prevent like-minded persons from indulging in the commission
of the offence punishable under Section 15 of the NDPS Act.
Keeping in view this consideration, the sentence of 2 years is not
at all excessive, rather it is lenient and there is no reason to
interfere with the sentence imposed by the learned Trial Court.
74. No other point was urged.
75. In view of the above, the present appeal fails, and the
same is dismissed.
76. A copy of this judgment along with the record of the
learned Trial Court be sent back forthwith. Pending applications,
if any, also stand disposed of.
(Rakesh Kainthla)
Judge
04th March, 2025
(ravinder)
[ad_1]
Source link