25.02.2025 vs Jai Kishan on 1 March, 2025

Himachal Pradesh High Court

Reserved On: 25.02.2025 vs Jai Kishan on 1 March, 2025

Author: Tarlok Singh Chauhan

Bench: Tarlok Singh Chauhan

2025:HHC:4380

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 126 of 2015
Reserved on: 25.02.2025
Date of Decision: 1.03.2025

State of Himachal Pradesh
….Appellant
Versus
Jai Kishan
….Respondent
Coram
Hon’ble Mr Justice Tarlok Singh Chauhan, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes

For the Appellant/State : Mr. I.N.Mehta, Senior
Additional Advocate General
with Mr. Navlesh Verma, Ms.
Sharmila Patial, Mr. Sushant
Keprate, Additional Advocates
General and Mr. J.S. Guleria,
Deputy Advocate General.

For the Respondent : Mr. Naveen K. Bhardwaj,
Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 10.10.2024 passed by learned Special Judge-II (Additional

Sessions Judge), Kullu, Himachal Pradesh (learned Trial Court)

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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vide which respondent (accused before the learned Trial Court)

was acquitted of the commission of an offence punishable

under Section 21 of the Narcotic Drugs and Psychotropic

Substances Act (in short ‘NDPS Act‘). (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 chargesheet before the

learned Trial Court for the commission of an offence punishable

under Section 21 of the NDPS Act. It was asserted that S.I. Megh

Singh (PW-7), Head Constable Jamal Deen (not examined),

Constable Nitish Kumar (PW-2) and Constable Nitin Thakur

(PW-1) were on patrolling duty at village Chhalal on 12.05.2012.

They saw the accused going towards Chhalal from Kasol. The

accused returned after seeing the police party and concealed

himself behind a stone. The police became suspicious of the

conduct of the accused and apprehended him. The accused

revealed his name as Jai Kishan Sharma on enquiry. SI Megh

Singh (PW-7) informed the accused that he (SI Megh Singh)

suspected the possession of narcotics by the accused. SI Megh

Singh (PW-7) wanted to search the accused, and the accused
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told him that he had a legal right to be searched before a

Magistrate or the Gazetted Officer. The accused consented to be

searched by the police vide memo (Ext.PW-2/A). The police

party gave their personal search to the accused and conducted

the personal search of the accused. The police recovered

polythene packets (Ext.P-2 to Ext.P-9) containing white

powder (Ext.P-1). The powder was collected and weighed, and

its weight was found to be 9.29 grams. The accused revealed

that the powder was MDMA. The police put the powder in

polythene. The polythene was put in a paper (Ext.P-10) and the

same was put in a parcel (Ext.P-11). The police sealed the parcel

with four seal impressions of seal ‘D’. The seal impression

(Ext.PW-2/B) was taken on a separate piece of cloth. NCB-I

form (Ext.PW-7/A) was filled in triplicate, and a seal

impression was obtained on the NCB-I form. The seal was

handed over to Constable Nitish Kumar (PW-2) after its use.

The police seized the parcel vide seizure memo (Ext.PW-2/C).

SI Megh Singh (PW-7) prepared a rukka (Ext.PW1/A) and

handed it over to Constable Nitin Thakur (PW-1) with the

directions to carry it to the Police Station.
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3. Constable Nitin Thakur (PW-1) handed over the

rukka to Inspector Sher Singh (PW-9), who got the F.I.R.

(Ext.PW-9/A) registered in the Police Station. He handed over

the case file to Constable Nitin Thakur (PW-1) with directions

to hand it over to the Investigating Officer. S.I.Megh Singh

(PW-7) conducted the investigations. He prepared the spot

map (Ext.PW-7/B) and recorded the statements of witnesses as

per their version. He arrested the accused vide memo

(Ext.PW-2/D). He also prepared the memo (Ex.PW-2/E). of the

personal search of the accused He produced the accused, the

case file and the case property before Inspector/SHO Sher Singh

(PW-9). Inspector/SHO Sher Singh resealed the parcel with

four seal impressions of seal ‘E’. He obtained the seal

impression (Ext. PW-9/C) on a separate piece of cloth and

NCB-I form (Ext.PW-7/A). He filled out the relevant columns

of the NCB-I form and handed over the case property,

documents and sample seal to MHC Jai Singh (PW-8), who

made an entry in Malkhana Register No. 19 (Ext. PW-8/A) and

deposited the case property, sample seals and the documents in

the Malkhana. He handed over the case property, documents

and sample seals to Constable Sangat Ram (PW-5) with the
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directions to carry them to SFSL, Junga, vide RC No. 98 of 2012

(Ext.PW8/B). Constable Sangat Ram deposited all the articles at

SFSL, Junga and handed over the receipt to MHC Jai Singh(PW-

8) on his return.

4. SI Megh Singh (PW-7) prepared the Special Report

(Ext.PW4/A) and handed it over to Additional Superintendent of

Police, Shri Sandeep Dhawal, who made an endorsement on the

Special Report and handed it over to his Reader Head Constable

Balbir Sharma (PW-4),. He made an entry in the Register of

Special Report at Sl. No. 16 (Ext.PW-4/B) and retained the

Special Report on record. The result of the analysis (Ex.PW-7/C)

was issued in which it was shown that the sample was MDMA.

The statements of the remaining witnesses were recorded as

per their version, and after the completion of the investigation,

a challan was prepared and presented before the Court.

5. The learned Trial Court charged the accused with the

commission of an offence punishable under Section 21 of the

NDPS Act, to which the accused pleaded not guilty and claimed

to be tried.

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6. The prosecution examined nine witnesses to prove

its case. Constable Nitin Thakur (PW-1) and Constable Nitish

Kumar (PW-2) are the official witnesses to recovery, HC Padam

Singh (PW-3) proved the entry in the daily diary. Head

Constable HC Balbir Sharma (PW-4) was working as a Reader

to the Additional Superintendent of Police, Shri Sandeep

Dhawal, to whom the Special Report was handed over.

Constable Sangat Ram (PW-5) carried the case property to

SFSL, Junga. Ashok Sharma (PW-6) conducted the partial

investigation of the case. SI Megh Singh (PW-7) led the police

party, effected the search and conducted the investigation of

the case. HC Jai Singh (PW-8) was working as an MHC with

whom the case property was deposited. Inspector Sher Singh

(PW-9) was working as SHO, who resealed the parcel and

signed the F.I.R.

7. The accused, in his statement recorded under

Section 313 of Cr.P.C., denied the prosecution case in its entirety.

He stated that a false case was made against him. The police

found one unclaimed bag and inquired him about the bag. When

he replied that he had no connection with the same, the police
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implicated him. No defence was sought to be adduced by the

accused.

8. The learned Trial Court held that there were

contradictions in the statements of the official witnesses, which

made the prosecution case highly suspect. The integrity of the

case property was not proved, and there was a discrepancy in

the number of seals mentioned by the witnesses. There was no

compliance with Section 50 of the NDPS Act, which was fatal to

the prosecution case. Hence, the learned Trial Court acquitted

the accused.

9. Feeling aggrieved and dissatisfied with the

judgment passed by the learned Trial Court, the State has filed

the present appeal asserting that the learned Trial Court erred

in acquitting the accused. Learned Trial Court failed to view the

prosecution evidence in its proper perspective and set

unrealistic standards to evaluate direct and cogent evidence.

The reasoning of the learned Trial Court is manifestly

unreasonable. There was no evidence of any enmity between

the police officials and the accused,and the testimonies of the

prosecution witnesses were discarded without any reason.
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Learned Trial Court erred in holding that there was no

compliance with Section 50 of the NDPS Act. Minor

contradictions are bound to come with time.The learned Trial

Court erred in acquitting the accused based on minor

contradictions. Hence, it was prayed that the present appeal be

accepted and the judgment of the learned Trial Court be set

aside.

10. We have heard Mr I.N.Mehta, learned Senior

Additional Advocate General, with Mr Navlesh Verma, Ms

Sharmila Patial, Mr Sushant Keprate, Additional Advocate

General and with Mr J.S. Guleria, Deputy Advocate General for

the appellant/State and Mr Naveen K. Bhadwaj, Advocate, for

the respondent.

11. Mr.I.N. Mehta, learned Senior Additional Advocate

General, submitted that the learned Trial Court erred in

acquitting the accused. The recovery was effected on 12.5.2012,

whereas statements of witnesses were recorded in the year 2014

after the lapse of two years. Minor contradictions are bound to

come with time, and the Trial Court erred in acquitting the

accused based on the minor contradictions. The accused had
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consented to be searched by the police, and there was no

requirement to take the accused to the nearest Magistrate or the

Gazetted Officer. Learned Trial Court had taken a perverse view

while acquitting the accused. Therefore, he prayed that the

present appeal be allowed and the judgment of the learned Trial

Court be set aside.

12. Mr. Naveen K. Bhardwaj, learned counsel for the

respondent/accused, supported the judgment of the learned

Trial Court and submitted that no interference is required with

it. Learned Trial Court had taken a reasonable view based on

the evidence led before it, and this Court should not interfere

with the reasonable view of the learned Trial Court while

deciding the appeal against acquittal; therefore, he prayed that

the present appeal be dismissed.

13. We have given considerable thought to the

submissions made at the bar and have gone through the records

carefully.

14. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon’ble Supreme Court in

Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC
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OnLine SC 130 that while deciding an appeal against acquittal,

the High Court should see whether the evidence was properly

appreciated on record or not; second whether the finding of the

Court is illegal or affected by the error of law or fact and thirdly;

whether the view taken by the Trial Court was a possible view,

which could have been taken based on the material on record.

The Court will not lightly interfere with the judgment of

acquittal. It was observed:

“25. We may first discuss the position of law regarding
the scope of intervention in a criminal appeal. For that is
the foundation of this challenge. It is the cardinal
principle of criminal jurisprudence that there is a
presumption of innocence in favour of the accused unless
proven guilty. The presumption continues at all stages of
the trial and finally culminates into a fact when the case
ends in acquittal. The presumption of innocence gets
concretised when the case ends in acquittal. It is so
because once the trial court, on appreciation of the
evidence on record, finds that the accused was not guilty,
the presumption gets strengthened, and a higher
threshold is expected to rebut the same in appeal.

26. No doubt, an order of acquittal is open to appeal, and
there is no quarrel about that. It is also beyond doubt that
in the exercise of appellate powers, there is no inhibition
on the High Court to reappreciate or re-visit the evidence
on record. However, the power of the High Court to
reappreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first
and foremost question to be asked is whether the trial
court thoroughly appreciated the evidence on record and
gave due consideration to all material pieces of evidence.

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The second point for consideration is whether the
finding of the trial court is illegal or affected by an error
of law or fact. If not, the third consideration is whether
the view taken by the trial court is a fairly possible view.
A decision of acquittal is not meant to be reversed on a
mere difference of opinion. What is required is an
illegality or perversity.

27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
“two-views theory” has been judicially recognised by the
courts, and it comes into play when the appreciation of
evidence results in two equally plausible views. However,
the controversy is to be resolved in favour of the accused.
For, the very existence of an equally plausible view in
favour of the innocence of the accused is in itself a
reasonable doubt in the case of the prosecution.
Moreover, it reinforces the presumption of innocence.
Therefore, when two views are possible, following the
one in favour of the innocence of the accused is the safest
course of action. Furthermore, it is also settled that if the
view of the trial court, in a case of acquittal, is a plausible
view, it is not open for the High Court to convict the
accused by reappreciating the evidence. If such a course
is permissible, it would make it practically impossible to
settle the rights and liabilities in the eye of the law.

28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC
pp. 236-37, para 13)
“13. Considering the reasons given by the trial court
and on an appraisal of the evidence, in our considered
view, the view taken by the trial court was a possible
one. Thus, the High Court should not have interfered
with the judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N. [Jagan M. Seshadri v. State of
T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid
down that as the appreciation of evidence made by the
trial court while recording the acquittal is a reasonable
view, it is not permissible to interfere in appeal. The
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duty of the High Court while reversing the acquittal
has been dealt with by this Court, thus: (SCC p. 643,
para 9)
‘9. … We are constrained to observe that the High
Court was dealing with an appeal against acquittal.
It was required to deal with various grounds on
which acquittal had been based and to dispel those
grounds. It has not done so. Salutary principles
while dealing with appeals against acquittal have
been overlooked by the High Court. If the
appreciation of evidence by the trial court did not
suffer from any flaw, as indeed none has been
pointed out in the impugned judgment, the order
of acquittal could not have been set aside. The view
taken by the learned trial court was a reasonable
view, and even if by any stretch of the imagination,
it could be said that another view was possible, that
was not a ground sound enough to set aside an
order of acquittal.'”

29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P.,
(2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon’ble
Supreme Court analysed the relevant decisions and
summarised the approach of the appellate court while
deciding an appeal from the order of acquittal. It
observed thus: (SCC p. 297, para 7)
“7. It is well settled that:

7.1. While dealing with an appeal against acquittal,
the reasons which had weighed with the trial court
in acquitting the accused must be dealt with in case
the appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436
: (2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :

(2021) 1 SCC (Cri) 395] ).

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7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal
matter gets reinforced (see Atley v. State of
U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR
1955 SC 807]).

7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow
in interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala [Sambasivan v. State of
Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).”

15. This position was reiterated in Ramesh v. State of

Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein

it was observed at page 175:

“20. At this stage, it would be relevant to refer to the
general principles culled out by this Court
in Chandrappa v. State of Karnataka [Chandrappa v. State
of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325],
regarding the power of the appellate court while dealing
with an appeal against a judgment of acquittal. The
principles read thus: (SCC p. 432, para 42)
“42. … (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on the exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and law.

(3) Various expressions, such as “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc., are not
intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such
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phraseologies are more in the nature of “flourishes of
language” to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come
to its own conclusion.

(4) An appellate court, however, must bear in mind
that in case of acquittal, there is a double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial
court.

(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”

21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v.
State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a
three-judge Bench of this Court pointed out that it would
be essential for the High Court, in an appeal against
acquittal, to clearly indicate firm and weighty grounds
from the record for discarding the reasons of the trial
court in order to be able to reach a contrary conclusion of
guilt of the accused. It was further observed that, in an
appeal against acquittal, it would not be legally sufficient
for the High Court to take a contrary view about the
credibility of witnesses, and it is absolutely imperative
that the High Court convincingly finds it well-nigh
impossible for the trial court to reject their testimony.
This was identified as the quintessence of the
jurisprudential aspect of criminal justice.”
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16. The present appeal has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

17. It is an admitted case of the prosecution that police

conducted the search of the jacket worn by the accused and

recovered 9.29 grams MDMA during the search. Constable Nitin

Thakur (PW-1), Constable Nitish Kumar (PW-2) and SI Megh

Singh (PW-7) categorically stated that the personal search of

the accused was conducted and during the search one polythene

packet was recovered from the jacket worn by the accused,

which contained small transparent wrappers having white

powder. It was laid down by the Hon’ble Supreme Court in State

of H.P Versus Pawan Kumar (2005) 4 SCC 350 that the word

person includes the body of a human being as presented to

public view, usually with its appropriate coverings and clothing.

It was observed: –

“10. We are not concerned here with the wide definition
of the word “person”, which in the legal world includes
corporations, associations or bodies of individuals, as
factually, in these types of cases, a search of their
premises can be done and not of their person. Having
regard to the scheme of the Act and the context in which
it has been used in the section, it naturally means a
human being or a living individual unit and not an
artificial person. The word has to be understood in a
broad, common-sense manner and, therefore, not the
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naked or nude body of a human being but the manner in
which a normal human being will move about in a
civilised society. Therefore, the most appropriate
meaning of the word “person” appears to be – “the body
of a human being as presented to public view, usually
with its appropriate coverings and clothing”. In a
civilised society, appropriate coverings and clothing are
considered absolutely essential, and no sane human
being comes into the gaze of others without appropriate
coverings and clothing. The appropriate coverings will
include footwear also, as normally it is considered an
essential article to be worn while moving outside one’s
home. Such appropriate coverings or clothing or
footwear, after being worn, move along with the human
body without any appreciable or extra effort. Once worn,
they would not normally get detached from the body of
the human being unless some specific effort in that
direction is made. For interpreting the provision, rare
cases of some religious monks and sages, who, according
to the tenets of their religious belief, do not cover their
body with clothing, are not to be taken notice of.
Therefore, the word “person” would mean a human
being with appropriate coverings and clothing and also
footwear.

18. Therefore, clothes are included in the definition of a

person as per the judgment of the Hon’ble Supreme Court.

19. In the present case, the substance was recovered

from the jacket worn by the accused. Thus, the recovery was

effected from the person of the accused. Section 50 of the

ND&PS Act deals with the search of the person. It reads as

under: –

“50. Conditions under which search of persons shall be
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conducted.

(1) When any officer duly authorised under Section 42 is
about to search any person under the provisions of
Section 42 or Section 43, he shall, if such person as
requires, take such person without unnecessary delay to
the nearest Gazetted Officer of any of the departments
mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer
or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reasonable
ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone except a
female.

(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person
to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or
article or document, he may, instead of taking such
person to the nearest Gazetted Officer or Magistrate,
proceed to search the person as provided under section
100 of the Code of Criminal Procedure, 1973 (2 of 1974)
(6) After a search is conducted under sub-section (5),
the officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours
send a copy thereof to his immediate official superior.”

20. Thus, the police were required to comply with

Section 50 of the NDPS Act and to inform him of his right to be

searched before the Magistrate or Gazetted Officer.
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21. Constable Nitish Kumar (PW-2) stated that the

investigating officer obtained the consent of the accused to be

searched before the Gazetted Officer or the Police party, and the

accused consented to be searched by the Police party. A consent

Memo (Ext.PW2/A) was prepared. SI Megh Singh (PW-7) stated

that he told the accused that he (the accused) had a legal right to

get himself searched before the Magistrate or the Gazetted

Officer, however, the accused opted to be searched by the police

party by giving his consent vide memo (Ext.PW-2/A). Thus, SI

Megh Singh (PW-7) and Constable Nitin Thakur (PW-1) gave

different versions regarding the persons before whom the

accused could have been searched. Constable Nitish Kumar

(PW-2) stated that the accused was told that he could be

searched before a Gazetted Officer or the Police. SI Megh Singh

(PW-7) stated that the accused was given the option to be

searched before the Magistrate or the Gazetted Officer. The

version of Constable Nitin Thakur (PW-1) that an option to be

searched by the police was given to the accused appears to be

highly probable because only then the accused would have

consented to be searched by the police. If no option to be

searched by the police was given to the accused he could not
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have opted to be searched by the police. He could have declined

to be searched by the Magistrate or the Gazetted Officer but

without being informed that he could be searched before the

Police, he could not have mentioned specifically that he wanted

to be searched before the police. It was laid down by the Hon’ble

Supreme Court in State of Rajasthan Vs. Parmanand & another

(2014) 5 SCC 345, that Section 50 only provides an option to be

searched before a Magistrate or a Gazetted Officer, and it does

not provide for a third option to be searched before the police. It

was observed:

“19. We also notice that PW-10 SI Qureshi informed the
respondents that they could be searched before the
nearest Magistrate, before the nearest gazetted officer or
before PW-5 J.S. Negi, the Superintendent, who was a
part of the raiding party. It is the prosecution case that
the respondents informed the officers that they would
like to be searched before PW-5 J.S. Negi by PW-10 SI
Qureshi. This, in our opinion, is again a breach of Section
50(1) of the NDPS Act. The idea behind taking an accused
to the nearest Magistrate or a nearest gazetted officer, if
he so requires, is to give him a chance of being searched
in the presence of an independent officer. Therefore, it
was improper for PW-10 SI Qureshi to tell the
respondents that a third alternative was available and
that they could be searched before PW-5 J.S. Negi, the
Superintendent, who was part of the raiding party. PW-5
J.S. Negi cannot be called an independent officer. We are
not expressing any opinion on the question of whether,
if the respondents had voluntarily expressed that they
wanted to be searched before PW-5 J.S. Negi, the search
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would have been vitiated or not. But PW-10 SI Qureshi
could not have given a third option to the respondents
when Section 50(1) of the NDPS Act does not provide for
it and when such an option would frustrate the
provisions of Section 50(1) of the NDPS Act. On this
ground also, in our opinion, the search conducted by
PW-10 SI Qureshi is vitiated.”

22. The law regarding the third option given to the

accused was exhaustively considered by this Court in Pradeep

Singh alias Rocky vs State of Himachal Pradesh, 2020(1) Him. L.R.

133, and it was held that giving the third option to the accused is

fatal. It was observed:

“3(iii)(c). Under the provisions of Section 50 of the Act,
the accused has to be informed about his legal rights
regarding search before a Magistrate or Gazetted Officer.
3(iii)(d). In the instant case, the consent memo (Ext.PW-
1/A), obtained from the accused, shows that in addition
to the two statutory options of search before the
Magistrate or the Gazetted Officer”, a 3rd option was also
given to the accused for getting himself searched before
any other police officer. It is in such circumstance that
the accused gave his search to the police party. Giving 3rd
option to the accused was clearly contrary to the
mandatory provisions of Section 50 of the Act. In the
case titled State of Rajasthan versus Parmanand and
Another, (2014) 5 SCC 345, it has been held by the Hon’ble
Apex Court that such a 3rd option could not be given when
there was no provision under Section 50(1) of the Act.
Relevant para of the said judgment is reproduced as
under: –

“19. We also notice that PW-10 SI Qureshi
informed the respondents that they could be
searched before the nearest Magistrate or, before
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the nearest gazetted officer or before PW-5 J.S.
Negi, the Superintendent, who was a part of the
raiding party. It is the prosecution case that the
respondents informed the officers that they would
like to be searched before PW-5 J.S. Negi by PW-10
SI Qureshi. This, in our opinion, is again a breach
of Section 50(1) of the NDPS Act. The idea behind
taking an accused to the nearest Magistrate or a
nearest gazetted officer, if he so requires, is to give
him a chance of being searched in the presence of
an independent officer. Therefore, it was improper
for PW-10 SI Qureshi to tell the respondents that a
third alternative was available and that they could
be searched before PW-5 J.S. Negi, the
Superintendent, who was part of the raiding party.
PW-5 J.S. Negi cannot be called an independent
officer. We are not expressing any opinion on the
question whether, if the respondents had
voluntarily expressed that they wanted to be
searched before PW-5 J.S. Negi, the search would
have been vitiated or not. But PW-10 SI Qureshi
could not have given a third option to the
respondents when Section 50(1) of the NDPS Act
does not provide for it and when such an option
would frustrate the provisions of Section 50(1) of
the NDPS Act. On this ground also, in our opinion,
the search conducted by PW-10 SI Qureshi is
vitiated.”

Relying upon the above judgment, in titled SK. Raju alias
Abdul Haque alias Jagga versus State of West Bengal, (2018)
9 SCC 708 Hon’ble Apex Court further observed thus: –

“18. In Parmanand, on a search of the person of the
respondent, no substance was found. However,
subsequently, opium was recovered from the bag
of the respondent. A two-judge Bench of this Court
considered whether compliance with Section 50(1)
was required. This Court held that the empowered
officer was required to comply with the
22
2025:HHC:4380

requirements of Section 50(1) as the person of the
respondent was also searched. [Reference may also
be made to the decision of a two-judge Bench of
this Court in Dilip v State of M.P.] It was held thus:

(Parmanand, SCC p.351, para 15).

“15. Thus, if merely a bag carried by a person
is searched without there being any search
of his person, Section 50 of the NDPS Act will
have no application. But if the bag carried by
him is searched and his person is also
searched, Section 50 of the NDPS Act will
have an application.

19. Moreover, in the above case, the empowered
officer at the time of conducting the search
informed the respondent that he could be searched
before the nearest Magistrate, before the nearest
gazetted officer or before the Superintendent, who
was also a part of the raiding party. The Court held
that the search of the respondent was not in
consonance with the requirements of Section 50(1)
as the empowered officer erred in giving the
respondent an option of being searched before the
Superintendent, who was not an independent
officer.”

Effect of giving the 3rd option:

3(iii)(e). The effect of illegality committed during the
course of the search of the accused has been considered
by the Hon’ble Apex Court in titled State of H.P. versus
Pawan Kumar, (2005) 4 SCC 350 wherein, after
considering various judgements on the question, it was
observed thus:-

“26. The Constitution Bench decision in Pooran
Mal v. The Director of Inspection, (1974) 1 SCC 345
was considered in State of Punjab v. Baldev Singh
and having regard to the scheme of the Act and
especially the provisions of Section 50 thereof, it
was held that it was not possible to hold that the
23
2025:HHC:4380

judgment in the said case can be said to have laid
down that the “recovered illicit article” can be
used as “proof of unlawful possession” of the
contraband seized from the suspect as a result of
illegal search and seizure. Otherwise, there would
be no distinction between the recovery of illicit
drugs, etc., seized during a search conducted after
following the provisions of Section 50 of the Act
and a seizure made during a search conducted in
breach of the provisions of Section 50. Having
regard to the scheme and the language used, a very
strict view of Section 50 of the Act was taken, and
it was held that failure to inform the person
concerned of his right as emanating from sub-
Section (1) of Section 50 may render the recovery
of the contraband suspect and sentence of an
accused bad and unsustainable in law. As a
corollary, there is no warrant or justification for
giving an extended meaning to the word “person”

occurring in the same provision so as to include
even some bag, article or container or some other
baggage being carried by him.”

In a case titled State of H.P. versus Rakesh 2018 LHLJ 214
(HP), this Court observed as under: –

“18. ……………………………………………………………..
Now, in view of the above, this Court has to
examine whether the provisions of Section 50 of
the NDPS Act are applicable to the present case
and, if applicable, then whether those have been
breached or not. Admittedly, as per the version of
PW-3, HC Chaman Lal, he has conducted the
personal search of both the accused persons and
also prepared search memos, Ex. PW-3/P and Ex.
PW-3/Q. If only the bag of the accused persons
would have been searched, then Section 50 of the
NDPS Act has no application, but as the personal
search of the accused persons was also conducted,
certainly Section 50 of the NDPS Act is applicable.

24

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In fact, Section 50 of the NDPS Act has a purpose
and communication of the said right, which is
ingrained in Section 50, to the person who is about
to be searched is not an empty formality. Offences
under the NDPS Act carry severe punishment, so
the mandatory procedure, as laid down under the
Act, has to be followed meticulously. Section 50 of
the Act is just a safeguard available to an accused
against the possibility of false involvement. Thus,
communication of this right to the accused has to
be clear, unambiguous and to the individual
concerned. The purpose of this Section is to make
aware the accused of his right, and the whole
purpose behind creating this right is effaced if the
accused is not able to exercise the same for want of
knowledge about its existence. This right cannot
be ignored, as the same is of utmost importance to
the accused. In the present case, certainly, the
provisions of Section 50 of the NDPS Act have not
been complied with; therefore, the judgment
(supra) is fully applicable to the facts of the
present case.

19. In State of Himachal Pradesh vs. Desh Raj &
another,2016 Supp HimLR 3088 (DB), this Court has relied
upon the law laid down in Parmanand‘s case (supra).

Relevant paras of the judgment of this Court are
extracted hereunder:

“18. Their Lordships of the Hon’ble Supreme Court
in State of Rajasthan v. Parmanand, (2014) 5 SCC
345, have held that there is a need for individual
communication to each accused and individual
consent by each accused under Section 50 of the
Act. Their lordships have also held that Section 50
does not provide for the third option. Their
lordships have also held that if a bag carried by the
accused is searched and his personal search is also
started, Section 50 would be applicable. ……”

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Again, in the present set of facts and circumstances, the
judgment (supra) is fully applicable to the present case,
as the right provided under Section 50 of the NDPS Act in
no way can be diluted, and its compliance is mandatory
in nature.”

Therefore, the combined effect of the law laid
down by the Hon’ble Apex Court, as applied to the
facts of the case in hand, is that non-compliance
to the mandatory provisions of Section 50 of the
Act has vitiated the proceedings related to search
and recovery. Point is, therefore, answered in
favour of appellant.”

23. This position was reiterated in Dayalu Kashyap v.

State of Chhattisgarh, (2022) 12 SCC 398: 2022 SCC OnLine SC 334,

wherein it was observed at page 400:

“4. The learned counsel submits that the option given to
the appellant to take a third choice other than what is
prescribed as the two choices under sub-section (1) of
Section 50 of the Act is something which goes contrary to
the mandate of the law and in a way affects the
protection provided by the said section to the accused. To
support his contention, he has relied upon the judgment
of State of Rajasthan v. Parmanand [State of Rajasthan v.
Parmanand, (2014) 5 SCC 345: (2014) 2 SCC (Cri) 563],
more specifically, SCC para 19. The judgment, in turn,
relied upon a Constitution Bench judgment of this Court
in State of Punjab v. Baldev Singh [State of Punjab v. Baldev
Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] to conclude
that if a search is made by an empowered officer on prior
information without informing the person of his right
that he has to be taken before a Gazetted Officer or a
Magistrate for search and in case he so opts, failure to
take his search accordingly would render the recovery of
the illicit article suspicious and vitiate the conviction and
sentence of the accused where the conviction has been
26
2025:HHC:4380

recorded only on the basis of possession of illicit articles
recovered from his person. The third option stated to be
given to the accused to get himself searched from the
Officer concerned not being part of the statute, the same
could not have been offered to the appellant, and thus,
the recovery from him is vitiated.”

24. A similar view was taken in Ranjan Kumar Chadha v.

State of H.P., 2023 SCC OnLine SC 1262:AIR 2023 SC 5164 wherein it

was observed:

“27. We have no hesitation in recording a finding that
Section 50 of the NDPS Act was not complied with as the
appellant could not have been offered the third option of
search to be conducted before the ASI. Section 50 of
the NDPS Act only talks about a Gazetted Officer or
Magistrate. What is the legal effect if an accused of the
offence under the NDPS Act is being told whether he
would like to be searched before a police officer or a
Gazetted Officer or Magistrate?

28. This Court in State of Rajasthan v. Parmanand, (2014)
5 SCC 345, held that it is improper for a police officer to
tell the accused that a third alternative is also available,
i.e. the search before any independent police officer. This
Court also took the view that a joint communication of
the right available under Section 50 of the NDPS Act to
the accused would frustrate the very purport of Section

50…..

29. Thus, from the oral evidence on the record as
discussed above, it is evident that Section 50 of the NDPS
Act stood violated for giving a third option of being
searched before a police officer.”

25. It was further held in Ranjan Kumar Chadha (supra)

that the investigating officer should give an option to the

accused to be searched before the Magistrate or the Gazetted
27
2025:HHC:4380

Officer; the accused can decline to avail of such option, and the

investigating officer can carry out the search himself. It was

observed:

“62. Section 50 of the NDPS Act only goes so far as to
prescribe an obligation to the police officer to inform the
suspect of his right to have his search conducted either
in the presence of a Gazetted Officer or Magistrate.
Whether or not the search should be conducted in the
presence of a Gazetted Officer or Magistrate ultimately
depends on the exercise of such right as provided under
Section 50. In the event the suspect declines this right, there
is no further obligation to have his search conducted in the
presence of a Gazetted Officer or Magistrate, and in such a
situation, the empowered police officer can proceed to
conduct the search of the person himself. To read Section 50
otherwise would render the very purpose of informing
the suspect of his right a redundant exercise. We are of
the view that the decision of this Court in Arif
Khan (supra) cannot be said to be an authority for the
proposition that notwithstanding the person proposed to
be searched has, after being duly apprised of his right to
be searched before a Gazetted Officer or Magistrate, but
has expressly waived this right in clear and unequivocal
terms; it is still mandatory that his search be conducted
only before a Gazetted Officer or Magistrate.

63. A plain reading of the extracted paragraphs of Arif
Khan (supra) referred to above would indicate that this
Court while following the ratio of the decision of the
Constitution Bench in VijaysinhChandubha Jadeja (supra)
held that the same has settled the position of law in this
behalf to the effect that, whilst it is imperative on the
part of the empowered officer to apprise the person of
his right to be searched only before a Gazetted Officer or
Magistrate; and this requires strict compliance; this
Court simultaneously proceeded to reiterate that in
28
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VijaysinhChandubha Jadeja (supra) “it is ruled that the
suspect person may or may not choose to exercise the right
provided to him under Section 50 of the NDPS Act”.

64. There is no requirement to conduct the search of the
person suspected to be in possession of a narcotic drug
or a psychotropic substance, only in the presence of a
Gazetted Officer or Magistrate if the person proposed to
be searched after being apprised by the empowered
officer of his right under Section 50 of the NDPS Act to be
searched before a Gazetted Officer or Magistrate
categorically waives such right by electing to be searched
by the empowered officer. The words “if such person so
requires”, as used in Section 50(1) of the NDPS
Act, would be rendered otiose if the person proposed to
be searched would still be required to be searched only
before a Gazetted Officer or Magistrate despite having
expressly waived “such requisition”, as mentioned in
the opening sentence of sub-Section (2) of Section 50 of
the NDPS Act. In other words, the person to be searched
is mandatorily required to be taken by the empowered
officer for the conduct of the proposed search before a
Gazetted Officer or Magistrate only “if he so requires”

upon being informed of the existence of his right to be
searched before a Gazetted Officer or Magistrate and not
if he waives his right to be so searched voluntarily, and
chooses not to exercise the right provided to him under
Section 50 of the NDPS Act.

65. However, we propose to put an end to all
speculations and debate on this issue of the suspect
being apprised by the empowered officer of his right
under Section 50 of the NDPS Act to be searched before a
Gazetted Officer or Magistrate. We are of the view that
even in cases wherein the suspect waives such right by
electing to be searched by the empowered officer, such
waiver on the part of the suspect should be reduced into
writing by the empowered officer. To put it in other
words, even if the suspect says that he would not like to
be searched before a Gazetted Officer or Magistrate and
29
2025:HHC:4380

he would be fine if his search is undertaken by the
empowered officer, the matter should not rest with just
an oral statement of the suspect. The suspect should be
asked to give it in writing duly signed by him in presence
of the empowered officer as well as the other officials of
the squad that “I was apprised of my right to be searched
before a Gazetted Officer or Magistrate in accordance with
Section 50 of the NDPS Act, however, I declare on my own
free will and volition that I would not like to exercise my
right of being searched before a Gazetted Officer or
Magistrate and I may be searched by the empowered
officer.” This would lend more credence to the
compliance of Section 50 of the NDPS Act. In other
words, it would impart authenticity, transparency and
creditworthiness to the entire proceedings. We clarify
that this compliance shall henceforth apply
prospectively.

66. From the aforesaid discussion, the requirements
envisaged by Section 50 can be summarised as follows:–

(i) Section 50 provides both a right as well as an
obligation. The person about to be searched has
the right to have his search conducted in the
presence of a Gazetted Officer or Magistrate if he
so desires, and it is the obligation of the police
officer to inform such person of this right before
proceeding to search the person of the suspect.

(ii) Where the person to be searched declines to
exercise this right, the police officer shall be free
to proceed with the search. However, if the suspect
declines to exercise his right of being searched
before a Gazetted Officer or Magistrate, the
empowered officer should take it in writing from
the suspect that he would not like to exercise his
right of being searched before a Gazetted Officer or
Magistrate and he may be searched by the
empowered officer.

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2025:HHC:4380

(iii) Before conducting a search, it must be
communicated in clear terms, though it need not
be in writing and is permissible to convey orally
that the suspect has a right of being searched by a
Gazetted Officer or Magistrate.

(iv) While informing the right, only two options of
either being searched in the presence of a Gazetted
Officer or Magistrate must be given, who also must
be independent and in no way connected to the
raiding party.

(v) In case of multiple persons to be searched, each
of them has to be individually communicated of
their rights, and each must exercise or waive the
same in their own capacity. Any joint or common
communication of this right would be in violation
of Section 50.

(vi) Where the right under Section 50 has been
exercised, it is the choice of the police officer to
decide whether to take the suspect before a
Gazetted Officer or Magistrate, but an endeavour
should be made to take him before the nearest
Magistrate.

(vii) Section 50 is applicable only in case of search
of person of the suspect under the provisions of
the NDPS Act and would have no application where
a search was conducted under any other statute in
respect of any offence.

(viii) Where during a search under any statute
other than the NDPS Act, contraband under
the NDPS Act also happens to be recovered, the
provisions relating to the NDPS Act shall forthwith
start applying, although, in such a situation,
Section 50 may not be required to be complied for
the reason that search had already been conducted.

(ix) The burden is on the prosecution to establish
that the obligation imposed by Section 50 was duly
complied with before the search was conducted.
31

2025:HHC:4380

(x) Any incriminating contraband, possession of
which is punishable under the NDPS Act and
recovered in violation of Section 50, would be
inadmissible and cannot be relied upon in the trial
by the prosecution; however, it will not vitiate the
trial in respect of the same. Any other article that
has been recovered may be relied upon in any
other independent proceedings.

26. In the present case, the statement of Nitish Thakur

(PW-1) makes it highly probable that accused was given a third

option to be searched before the police, and this vitiates the

compliance with the provisions of Section 50 of the NDPS Act. It

was laid down by the Hon’ble Supreme Court in

VijaysinhChandubha Jadeja vs State of Gujarat (2011) 1 SCC 609

that violation of Section 50 of the NDPS Act is fatal, and the

police cannot rely upon the recovery effected in violation of

Section 50 of NDPS Act. It was observed: –

“29. …… We have no hesitation to hold that in so far as
the obligation of the authorised officer under sub-
section (1) of Section 50 of the NDPS Act is concerned, it
is mandatory and requires strict compliance. Failure to
comply with the provision would render the recovery of
illicit articles suspect and vitiate the conviction if the
same is recorded only on the basis of recovery of an illicit
article from the person of the accused during such
search.”

27. This position was reiterated in Arif Khan @ Agha

Khan versus State of Uttarakhand AIR 2018 SC 2123, wherein it was
32
2025:HHC:4380

observed: –

“28. First, it is an admitted fact emerging from the
record of the case that the appellant was not produced
before any Magistrate or Gazetted Officer. Second, it is
also an admitted fact that due to the aforementioned
first reason, the search and recovery of the contraband
“Charas” was not made from the appellant in the
presence of any Magistrate or Gazetted Officer. Third, it
is also an admitted fact that none of the police officials of
the raiding party who recovered the contraband
“Charas” from him was the Gazetted Officer, nor they
could be and, therefore, they were not empowered to
make search and recovery from the appellant of the
contraband “Charas” as provided under Section 50 of the
NDPS Act except in the presence of either a Magistrate or
a Gazetted Officer; Fourth, in order to make the search
and recovery of the contraband articles from the body of
the suspect, the search and recovery has to be in
conformity with the requirements of Section 50 of the
NDPS Act. It is, therefore, mandatory for the prosecution
to prove that the search and recovery was made from the
appellant in the presence of a Magistrate or a Gazetted
Officer.

29. Though the prosecution examined as many as five
police officials (PW-1 to PW-5) of the raiding police
party, none of them deposed that the search/recovery
was made in the presence of any Magistrate or a
Gazetted Officer.

30. For the aforementioned reasons, we are of the
considered opinion that the prosecution was not able to
prove that the search and recovery of the contraband
(Charas) made from the appellant was in accordance
with the procedure prescribed under Section 50 of the
NDPS Act. Since the non-compliance of the mandatory
procedure prescribed under Section 50 of the NDPS Act is
fatal to the prosecution case and, in this case, we have
found that the prosecution has failed to prove
33
2025:HHC:4380

compliance as required in law, the appellant is entitled to
claim its benefit to seek his acquittal.”

28. Thus, it appears from the record that the accused

was also told that he could be searched before the police, and

only then he opted to be searched by the police, which is

insufficient compliance with Section 50 of the NDPS Act and the

prosecution cannot rely upon the recovery effected as a result of

a search conducted in violation of Section 50 of NDPS Act.

29. Rukka(Ext.PW-1/A) mentions that one transparent

polythene was recovered from the right pocket of the jacket

worn by the accused. The transparent polythene contained

small packets of polythene having white powder. Constable

Nitin Thakur (PW-1) stated that one polythene packet was

recovered from the right pocket of the jacket worn by the

accused, which contained two small transparent

wrappers.Constable Nitish Kumar (PW-2) stated that one

transparent polythene containing 7-8 transparent plastic

wrappers having white powder was recovered from the jacket.

SI Megh Singh (PW-7) stated that one polythene bag having

eight transparent wrappers containing a white substance was

found. The prosecution produced plastic wrappers (Ext.P-2 to
34
2025:HHC:4380

Ext.P-9) before the Court. Thus, there is a discrepancy

regarding the number of polythene packets recovered from the

accused in the oral testimonies of the witnesses. The packets

produced before the Court are also not as per the statements of

the prosecution witnesses.

30. Constable Nitin Thakur (PW-1) stated in his cross-

examination that nothing except MDMA was recovered from

the pockets of the person of the accused; however, Memo of

personal search (Ext.PW-2/C) shows that currency notes worth

₹2500/-, one mobile Nokia and other articles were found in the

possession of the accused. This shows that either Nitin Thakur

(PW-1) was not present at the time of the search or his memory

regarding the search is not reliable; any of these possibilities is

fatal to the prosecution case.

31. Rukka(Ext.PW-1/A) mentions that the seal was

handed over to Constable Nitish Kumar (PW-2) after the use.

Constable Nitin Thakur (PW-1) and Constable Nitish Kumar

(PW-2) also stated on oath that the seal was handed over to

Constable Nitish Kumar (PW-2); however, SI Megh Singh

(PW-7) stated that the seal was handed over to Head Constable
35
2025:HHC:4380

Jamal Deen after the use. He volunteered to say that he did not

remember the name of the constable. Thus, there is a

discrepancy regarding the person to whom the seal was handed

over. This discrepancy assumes significance because constable

Sangat Ram (PW-5) stated that the parcel sealed with four seal

impressions of seal ‘D’ and four seal impressions of seal ‘E’ was

handed over to him, whereas HC Jai Singh (PW-8) stated that

parcel sealed with four seal impressions of seal ‘D’ and three

seal impressions of seal ‘E’ was deposited with him. He had

also mentioned this fact in the Malkhana Register

(Ext.PW-8/A). The report of chemical examination (Ext.PW-

7/C) mentions that a parcel sealed with four seal impressions of

seal ‘D’ and four seal impressions of seal ‘E’ was examined in

the laboratory. This shows that seals were put on the case

property after it was handed over to HC Jai Singh (PW-8), which

suggests tampering with the case property and justifies the

inference drawn by the learned Trial Court that the integrity of

the case property was not established.

32. It was submitted that these are minor discrepancies,

which are bound to come with time. This is not acceptable. The

discrepancy regarding the number of seals is not based on the
36
2025:HHC:4380

ocular version but is supported by the documents as well. The

details of the articles recovered during the personal search of

the accused cannot be said to be a minor discrepancy as it is

related to the core of the prosecution case, namely, the

recovery. It was laid down by the Hon’ble Supreme Court in

Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC

OnLine SC 756 that the evidence of the prosecution must be

tested for its inherent consistency: consistency with the

account of other witnesses and consistency with undisputed

facts. It was observed:

“21. …. Witnesses, as Bentham said, are the eyes and ears
of justice. Hence, the importance and primacy of the
quality of the trial process. Eyewitnesses’ accounts
would require a careful, independent assessment and
evaluation for its credibility, which should not be
adversely prejudged, making any other evidence,
including the medical evidence, as the sole touchstone
for the test of such credibility. The evidence must be
tested for its inherent consistency and the inherent
probability of the story; consistency with the account of
other witnesses held to be creditworthy; consistency
with the undisputed facts, the “credit” of the witnesses;
their performance in the witness box; their power of
observation etc. Then the probative value of such
evidence becomes eligible to be put into the scales for a
cumulative evaluation.”

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33. It was held in David Piper vs Mark Hales 2013 EWHC B1

(QB) that the Court has to see whether the statement of the

witness is consistent or not. It was observed: –

34. The guidance about how courts approach this is given
in the extra-judicial writing of the late Lord Bingham of
Cornhill, approved by the courts is apposite. In “The
Judge as Juror: The Judicial Determination of Factual
Issues”, published in “The Business of Judging”, Oxford
2000, reprinted from Current Legal Problems, vol 38, 1985
p 1-27, he wrote:

“. . . Faced with a conflict of evidence on an issue
substantially affecting the outcome of an action,
often knowing that a decision this way or that will
have momentous consequences on the parties’
lives or fortunes, how can and should the judge set
about his task of resolving it? How is he to resolve
which witness is honest and which dishonest,
which reliable and which unreliable?

The normal first step in resolving issues of
primary fact is, I feel sure, to add to what is
common ground between the parties (which the
pleadings in the action should have identified but
often do not) such facts as are shown to be
incontrovertible. In many cases, letters or minutes
written well before there was any breath of dispute
between the parties may throw a very clear light on
their knowledge and intentions at a particular
time. In other cases, evidence of tyre marks, debris
or where vehicles ended up may be crucial. To
attach importance to matters such as these, which
are independent of human recollection, is so
obvious and standard a practice, and in some cases
so inevitable, that no prolonged discussion is
called for. It is nonetheless worth bearing in mind,
when vexatious conflicts of oral testimony arise,
38
2025:HHC:4380

that these fall to be judged against the background
not only of what the parties agree to have
happened but also of what plainly did happen,
even though the parties do not agree.

The most compendious statement known to me of
the judicial process involved in assessing the
credibility of an oral witness is to be found in the
dissenting speech of Lord Pearce in the House of
Lords in Onassis v Vergottis [1968] 2 Lloyds Rep
403at p 431. In this, he touches on so many of the
matters which I wish to mention that I may
perhaps be forgiven for citing the relevant passage
in full:

”Credibility’ involves wider problems than
mere ‘demeanour’, which is mostly
concerned with whether the witness appears
to be telling the truth as he now believes it to
be. Credibility covers the following
problems. First, is the witness a truthful or
untruthful person? Secondly, is he, though a
truthful person, telling something less than
the truth on this issue, or though an
untruthful person, telling the truth on this
issue? Thirdly, though he is a truthful person
telling the truth as he sees it, did he register
the intentions of the conversation correctly
and if so, has his memory correctly retained
them? Also, has his recollection been
subsequently altered by unconscious bias or
wishful thinking or by too much discussion
of it with others? Witnesses, especially those
who are emotional and who think that they
are morally in the right, tend very easily and
unconsciously to conjure up a legal right
that did not exist. It is a truism, often used in
accident cases, that with every day that
passes, the memory becomes fainter, and
the imagination becomes more active. For
39
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that reason, a witness, however honest,
rarely persuades a Judge that his present
recollection is preferable to that which was
taken down in writing immediately after the
accident occurred. Therefore, contemporary
documents are always of the utmost
importance. And lastly, although the honest
witness believes he heard or saw this or that,
is it so improbable that it is on balance more
likely that he was mistaken? On this point, it
is essential that the balance of probability is
put correctly into the scales in weighing the
credibility of a witness. And motive is one
aspect of probability. All these problems
compendiously are entailed when a Judge
assesses the credibility of a witness; they are
all part of one judicial process. And in the
process, contemporary documents and
admitted or incontrovertible facts and
probabilities must play their proper part.”

Every judge is familiar with cases in which the
conflict between the accounts of different
witnesses is so gross as to be inexplicable save on
the basis that one or some of the witnesses are
deliberately giving evidence which they know to be
untrue . . .. more often dishonest evidence is likely
to be prompted by the hope of gain, the desire to
avert blame or criticism, or misplaced loyalty to
one or other of the parties. The main tests needed
to determine whether a witness is lying or not are,
I think, the following, although their relative
importance will vary widely from case to case:

(1) the consistency of the witness’s evidence
with what is agreed, or clearly shown by
other evidence, to have occurred;

(2) the internal consistency of the witness’s
evidence;

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(3) consistency with what the witness has
said or deposed on other occasions;

(4) the credit of the witness in relation to
matters not germane to the litigation;

(5) the demeanour of the witness.

The first three of these tests may, in general, be
regarded as giving a useful pointer to where the
truth lies. If a witness’s evidence conflicts with
what is clearly shown to have occurred or is
internally self-contradictory, or conflicts with
what the witness has previously said, it may
usually be regarded as suspect. It may only be
unreliable and not dishonest, but the nature of the
case may effectively rule out that possibility.
The fourth test is perhaps more arguable. . . .”

35. The following guidance of Lord Goff in Grace
Shipping v. Sharp & Co [1987] 1 Lloyd’s Law Rep. 207 at
215-6 is also helpful.

“And it is not to be forgotten that, in the present
case, the Judge was faced with the task of
assessing the evidence of witnesses about
telephone conversations which had taken place
over five years before. In such a case, memories
may very well be unreliable, and it is of crucial
importance for the Judge to have regard to the
contemporary documents and the overall
probabilities. In this connection, their Lordships
wish to endorse a passage from a judgment of one
of their number in Armagas Ltd v. Mundogas S.A.
(The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, when he
said at p. 57: –

“Speaking from my own experience, I have found
it essential in cases of fraud, when considering the
credibility of witnesses, always to test their
veracity by reference to the objective facts proved
independently of their testimony, in particular by
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reference to the documents in the case, and also to
pay particular regard to their motives and the
overall probabilities. It is frequently very difficult
to tell whether a witness is telling the truth or not,
and where there is a conflict of evidence, such as
there was in the present case, reference to
the objective facts and documents, to the witnesses’
motives, and the overall probabilities, can be of
very great assistance to a Judge in ascertaining the
truth.” [emphases added].

That observation is, in their Lordships’ opinion, equally
apposite in a case where the evidence of the witnesses is
likely to be unreliable, and it is to be remembered that in
commercial cases, such as the present, there is usually a
substantial body of contemporary documentary
evidence.”

In that context, he was impressed by a witness described
in the following terms.

“Although, like the other main witnesses, his
evidence was a mixture of reconstruction and
original recollection, he took considerable trouble
to distinguish precisely between the two, to an
extent which I found convincing and reliable.”

That is so important and so infrequently done.”

36. This approach to fact-finding was amplified
recently by Lady Justice Arden in the Court of Appeal
in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed
and others [2011] EWCA Civ 610, in paragraphs 11, 12 & 14:

11. By the end of the judgment, it is clear that what
impressed the judge most in his task of fact-

finding was the absence, rather than the presence,
of contemporary documentation or other
independent oral evidence to confirm the oral
evidence of the respondents to the proceedings.

12. There are many situations in which the court is
asked to assess the credibility of witnesses from
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their oral evidence, that is to say, to weigh up their
evidence to see whether it is reliable. Witness
choice is an essential part of the function of a trial
judge, and he or she has to decide whose evidence
and how much evidence to accept. This task is not
to be carried out merely by reference to the
impression that a witness made by giving evidence
in the witness box. It is not solely a matter of body
language or the tone of voice or other factors that
might generally be called the ‘demeanour’ of a
witness. The judge should consider what other
independent evidence would be available to
support the witness. Such evidence would
generally be documentary, but it could be other
oral evidence, for example, if the issue was
whether a defendant was an employee, the judge
would naturally consider whether there were any
PAYE records or evidence, such as evidence in texts
or e-mails, in which the defendant seeks or is
given instructions as to how he should carry out
work. This may be particularly important in cases
where the witness is from a culture or way of life
with which the judge may not be familiar. These
situations can present particular dangers and
difficulties to a judge.

14. In my judgment, contemporaneous written
documentation is of the very greatest importance
in assessing credibility. Moreover, it can be
significant not only where it is present, and the
oral evidence can then be checked against it. It can
also be significant if written documentation is
absent. For instance, if the judge is satisfied that
certain contemporaneous documentation is likely
to have existed were the oral evidence correct and
that the party adducing oral evidence is
responsible for its non-production, then the
documentation may be conspicuous by its absence,
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and the judge may be able to draw inferences from
its absence.

37. Contemporaneity, consistency, probability
and motive are key criteria and more important
than demeanour, which can be distorted through
the prism of prejudice: how witnesses present
themselves in a cramped witness box surrounded
for the first time with multiple files can be
distorted, particularly elderly ones being asked to
remember minute details of what happened and
what was said, and unrecorded, nearly 4 years
later as here. Lengthy witness statements prepared
by the parties’ lawyers long after the events also
distort the accurate picture even though they are
meant to assist the court.”

34. In the present case, the discrepancies related to the

recovery and integrity of the case property. These cannot be

ignored on the ground that discrepancies were bound to come

with the passage of time.

35. No other point was urged.

36. Therefore, the learned Trial Court had taken a

reasonable view based on the evidence led before it. This Court

will not interfere with the same while deciding the appeal

against the acquittal, even of another view is possible.

37. In view of the above, the present appeal fails, and the

same is dismissed.

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38. In view of the provisions of Section 437-A of the

Code of Criminal Procedure [Section 481 of Bharatiya Nagarik

Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is

directed to furnish his personal bond in the sum of ₹25,000/-

with one surety in the like amount to the satisfaction of the

learned Registrar (Judicial) of this Court/learned Trial Court,

within four weeks, which shall be effective for six months with

stipulation that in the event of Special Leave Petition being filed

against this judgment, or on grant of the leave, the

respondent/accused, on receipt of notice thereof, shall appear

before the Hon’ble Supreme Court.

39. A copy of this judgment, along with the records of

the learned Trial Court, be sent back forthwith. Pending

miscellaneous application(s), if any, also stand(s) disposed of.

( Tarlok Singh Chauhan )
Judge

( Rakesh Kainthla )
Judge
1st March, 2025
(ravinder)