Himachal Pradesh High Court
Decided On: 26.03.2025 vs Firoz Khan on 26 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:8845 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 576 of 2024
Decided on: 26.03.2025
____________________________________________________
State of Himachal Pradesh …..Appellant.
Versus
Firoz Khan ......Respondent.
__________________________________________________
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? No.
_____________________________________________________
For the appellant: Mr. I.N. Mehta, Senior Additional
Advocate General, with Mr. Ramakant
Sharma, Mr. Navlesh Verma, Mr.
Sushant Keprate, Ms. Sharmila
Patial, Additional Advocates General
and Mr. Raj Negi, Deputy Advocate
General.
For the respondent: Ms. Devyani Sharma, Senior
Advocate, with Mr. Anirudh Sharma,
Advocate.
Sushil Kukreja, Judge.
The instant appeal has been preferred by the
appellant/State under Section 419 of Bhartiya Nagrik Suraksha
Sanhita, 2023 (for short ‘BNSS’) against judgment, dated
12.04.2024, passed by learned Special Judge, Paonta Sahib,
District Sirmaur, H.P., in Criminal Case No. 21-N/7 of 2015,
whereby, the accused (respondent herein) was acquitted for the
offence punishable under Section 15 of the Narcotic Drugs &
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:8845 )
Psychotropic Substances Act (for short ‘NDPS Act‘).
2. The facts giving rise to the present appeal, as per the
prosecution story, can be summarized as under:
2(a). On 18.05.2015, a police team was on patrolling and
traffic checking duty towards Paonta Sahib-Yamuna Nagar road
and was checking the vehicles near Behral School and around
04:25 p.m. a motorcycle (applied for) came from Satiwala side,
which was stopped for checking. Two persons were travelling on
the said motorcycle and they disclosed their names as Ashok
Kumar and Paramjit. Police checked the documents of the
aforesaid motorcycle. Thereafter, around 04:30 p.m., accused
(Firoz Khan) came on motorcycle, bearing Registration No. HP-
17C-3826, from Behral side and he was stopped. On being asked
about the documents of the vehicle, he said that he was a local
person and tried to move away from that place. The police
suspected that he might be carrying some contraband and when
the police inquired about the name and parentage of the accused,
he tried to conceal a green bag, which was kept by him in between
his legs near the fuel tank of the motorcycle. Police checked said
bag in presence of Paramjit Singh and Ashok Kumar and other
police officials and it was found containing another bag stuffed with
some brown powdered substance. The said substance, on
3 Neutral Citation No. ( 2025:HHC:8845 )
checking, was found to be churapost. On weighment, the
recovered contraband alongwith the bag was found to be 2 kgs.
Thereafter, the police completed all the codal formalities, i.e., the
contraband was taken into possession and sealed in a cloth parcel,
photographs were clicked, statements of the witnesses were
recorded, spot map was prepared, motorcycle bearing Registration
No. HP-17C-3826 was taken into possession and NCB form, in
triplicate, was filled in. Ruka was prepared and sent to the police
station, whereupon FIR was registered and the accused was
arrested. After completion of the investigation, police presented
the charge-sheet before the learned Trial Court against the
accused for commission of the offence punishable under Section
15 of the NDPS Act.
3. The prosecution, in order to prove its case, examined
fourteen witnesses. Statement of the accused under Section 313
Cr.P.C. was also recorded, wherein, he claimed innocence and
denied the prosecution case, however, he did not lead any
evidence in defence.
4. The learned Trial Court, vide impugned judgment dated
12.04.2024 acquitted the accused for commission of the offence
punishable under Section 15 of the NDPS Act, hence, the instant
appeal has been preferred by the appellant/State.
4 Neutral Citation No. ( 2025:HHC:8845 )
5. The learned Senior Additional Advocate General for the
appellant/State contended that the impugned judgment is against
the law and facts, based upon mis-appreciation of evidence, which
ultimately resulted into miscarriage of justice, as such the same is
liable to be set-aside. He further contended that the learned Trial
Court has appreciated the evidence in a slip-shod and perfunctory
manner and the impugned judgment is based on hypothetical
reasoning, surmises and conjectures. Lastly, he submitted that the
impugned judgment passed by the learned Trial Court be quashed
and set-aside by allowing the instant appeal and the accused be
convicted.
6. Conversely, the learned Senior Counsel for the
respondent/accused contended that the impugned judgment
passed by the learned Trial Court is the result of proper
appreciation of the material on record and the same was passed
after appreciating the evidence and law in its right and true
perspective. She has further contended that there was nothing
against the accused and the judgment of acquittal passed by the
learned Trial Court is a well-reasoned judgment, which does not
require any interference, thus the instant appeal, which sans
merits, be dismissed.
7. We have heard the learned Senior Additional Advocate
5 Neutral Citation No. ( 2025:HHC:8845 )
General for the appellant/State, learned Senior Counsel for the
respondent/accused, and carefully examined the entire records.
8. It is well settled by the Hon’ble Apex Court in a catena
of decisions that an Appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of
acquittal is founded. However, Appellate Court must bear in mind
that in case of acquittal, there is 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 proven
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 learned trial Court.
Further, if two reasonable views are possible on the basis of the
evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the learned trial Court.
9. The scope of power of Appellate Court in case of
appeal against acquittal has been dealt with by the Hon’ble Apex
Court in Muralidhar alias Gidda & another vs. State of Karnatka
reported in (2014) 5 SCC 730, which reads as under:
“10. Lord Russell in Sheo Swarup[1], highlighted the
approach of the High Court as an appellate court
hearing the appeal against acquittal. Lord Russell
said,
6 Neutral Citation No. ( 2025:HHC:8845 )
“… the High Court should and will always give proper
weight and consideration to such matters as (1) the
views of the trial Judge as to the credibility of the
witnesses; (2) the presumption of innocence in favour
of the accused, a presumption certainly not weakened
by the fact that he has been acquitted at his trial; (3)
the right of the accused to the benefit of any doubt;
and (4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge who
had the advantage of seeing the witnesses.” The
opinion of the Lord Russell has been followed over the
years.
11. As early as in 1952, this Court in Surajpal Singh[2]
while dealing with the powers of the High Court in an
appeal against acquittal under Section 417 of the
Criminal Procedure Code observed:
“7………..the High Court has full power to review the
evidence upon which the order of acquittal was
founded, but it is equally well settled that the
presumption of innocence of the accused is
further reinforced by his acquittal by the trial court,
and the findings of the trial court which had the
advantage of seeing the witnesses and hearing
their evidence can be reversed only for very
substantial and compelling reasons.”
12. The approach of the appellate court in the appeal
against acquittal has been dealt with by this Court in
Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher
Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor
Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade
[11], Lekha Yadav [12], Khem Karan [13], Bishan Singh
[14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota
Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan
[20], Bhagwan Singh [21], Harijana Thirupala [22], C.
Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25]
and Chandrappa [26]. It is not necessary to deal with
these cases individually. Suffice it to say that this Court
has consistently held that in dealing with appeals against
acquittal, the appellate court must bear in mind the
following:
(i) There is presumption of innocence in favour of an
accused person and such presumption is
strengthened by the order of acquittal passed in
his favour by the trial court,
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of
7 Neutral Citation No. ( 2025:HHC:8845 )the appeal against acquittal,
(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against
convictions but the appellate court is generally
loath in disturbing the finding of fact recorded by
the trial court. It is so because the trial court had
an advantage of seeing the demeanor of the
witnesses. If the trial court takes a reasonable
view of the facts of the case, interference by the
appellate court with the judgment of acquittal is
not justified. Unless, the conclusions reached by
the trial court are palpably wrong or based on
erroneous view of the law or if such conclusions
are allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of the
appellate court in interfering with such
conclusions is fully justified, and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is
inclined to take a different view, interference with
the judgment of acquittal is not justified if the
view taken by the trial court is a possible view.
The evenly balanced views of the evidence must
not result in the interference by the appellate
court in the judgment of the trial court.”
10. The Hon’ble Supreme Court in Rajesh Prasad vs.
State of Bihar & another, (2022) 3 SCC 471, observed as under:
“31. The circumstances under which an appeal would be
entertained by this Court from an order of acquittal
passed by a High Court may be summarized as
follows:
31.1. Ordinarily, this Court is cautious in
interfering with an order of acquittal, especially
when the order of acquittal has been confirmed up
to the High Court. It is only in rarest of rare
cases, where the High Court, on an absolutely
wrong process of reasoning and a legally
erroneous and perverse approach to the facts of
the case, ignoring some of the most vital facts,
has acquitted the accused, that the same may be
reversed by this Court, exercising jurisdiction
under Article 136 of the Constitution. [State of U.P.
v. Sahai (1982) 1 SCC 352] Such fetters on the
right to entertain an appeal are prompted by the
8 Neutral Citation No. ( 2025:HHC:8845 )reluctance to expose a person, who has been
acquitted by a competent court of a criminal
charge, to the anxiety and tension of a further
examination of the case, even though it is held by
a superior court. [Arunchalam v. P.S.R.
Sadhanantham (1979) 2 SCC 297] An appeal
cannot be entertained against an order of acquittal
which has, after recording valid and weighty
reasons, has arrived at an unassailable, logical
conclusion which justifies acquittal. [State of
Haryana vs. Lakhbir]31.2. However, this Court has on certain
occasions, set aside the order of acquittal passed
by a High Court. The circumstances under which
this Court may entertain an appeal against an
order of acquittal and pass an order of conviction,
may be summarized as follows:
31.2.1. Where the approach or reasoning of the
High Court is perverse;
(a) Where incontrovertible evidence has been rejected
by the High Court based on suspicion and surmises,
which are rather unrealistic. [State of Rajasthan v.
Sukhpal Singh (1983) 1 SCC 393] For example,
where direct, unanimous accounts of the
eyewitnesses, were discounted without cogent
reasoning. [State of U.P. vs. Shanker 1980 Supp
SCC 489]
(b) Where the intrinsic merits of the testimony of
relatives, living in the same house as the victim,
were discounted on the ground that they were
“interested” witnesses. [State of U.P. v. Hakim Singh
(1980)
(c) Where testimony of witnesses had been disbelieved
by the High Court, on an unrealistic conjecture of
personal motive on the part of witnesses to implicate
the accused, when in fact, the witnesses had no axe
to grind in the said matter. [State of Rajasthan v.
Sukhpal Singh (1983) 1 SCC 393]
(d) Where dying declaration of the deceased victim was
rejected by the High Court on an irrelevant ground
that they did not explain the injury found on one of
the persons present at the site of occurrence of the
crime. [Arunachalam vs. P.S.R. Sadhanantham
(1979) 2 SCC 297]
(e) Where the High Court applied an unrealistic standard
of “implicit proof” rather than that of “proof beyond
reasonable doubt” and therefore evaluated the
evidence in a flawed manner. [State of U.P. v. Ranjha
Ram (1986) 4 SCC 99]
(f) Where the High Court rejected circumstantial
9 Neutral Citation No. ( 2025:HHC:8845 )
evidence, based on an exaggerated and capricious
theory, which were beyond the plea of the accused;
[State of Maharashtra v. Champalal Punjaji Shah
(1981) 3 SCC 610]
(g) Where the High Court acquitted the accused on the
ground that he had no adequate motive to commit
the offence, although, in the said case, there was
strong direct evidence establishing the guilt of the
accused, thereby making it necessary on the part of
the prosecution to establish “motive”. [State of A.P. v.
Bogam Chandraiah (1990) 1 SCC 445]
31.2.2.Where acquittal would result is gross
miscarriage of justice;
(a) Where the findings of the High Court, disconnecting
the accused persons with the crime, were based on
a perfunctory consideration of evidence, [State of
U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on
extenuating circumstances which were purely based
in imagination and fantasy [State of U.P. v. Pussu
(1983) 3 SCC 502]
(b) Where the accused had been acquitted on ground of
delay in conducting trial, which delay was attributable
not to the tardiness or indifference of the prosecuting
agencies, but to the conduct of the accused himself;
or where accused had been acquitted on ground of
delay in conducting trial relating to an offence which
is not of a trivial nature. [State of Maharashtra v.
Champalal Punjaji Shah (1981) 3 SCC 610].”
11. In H.D. Sundara & others vs. State of Karnataka,
(2023) 9 SCC 581, the Hon’ble Supreme Court has observed that
the appellate court cannot overturn acquittal only on the ground
that after re-appreciating evidence, it is of the view that the guilt of
the accused was established beyond a reasonable doubt. The
relevant portion of the above judgment is as under:
“8. In this appeal, were are called upon to consider the
legality and validity of the impugned judgment rendered
by the High Court while deciding an appeal against
acquittal under Section 378 of the Code of Criminal
Procedure, 1973 (for short “CrPC“). The principles
which govern the exercise of appellate jurisdiction while
10 Neutral Citation No. ( 2025:HHC:8845 )dealing with an appeal against acquittal under Section
378 CrPC can be summarized as follows:
8.1.The acquittal of the accused further strengthens the
presumption of innocence;
8.2.The appellate court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and
documentary evidence;
8.3.The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required
to consider whether the view taken by the trial court is
possible view which could have been taken on the
basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that
another view was also possible; and8.5.The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible.
9. Normally, when an appellate court exercises appellate
jurisdiction, the duty of the appellate court is to find out
whether the verdict which is under challenge is correct
or incorrect in law and on facts. The appellate court
normally ascertains whether the decision under
challenge is legal or illegal. But while dealing with an
appeal against acquittal, the appellate court cannot
examine the impugned judgment only to find out
whether the view taken was correct or incorrect. After
re-appreciating the oral and documentary evidence, the
appellate court must first decide whether the trial court’s
view was a possible view. The appellate court cannot
overturn acquittal only on the ground that after re-
appreciating evidence, it is of the view that the guilt of
the accused was established beyond a reasonable
doubt. Only recording such a conclusion an order of
acquittal cannot be reversed unless the appellate court
also concludes that it was the only possible conclusion.
Thus, the appellate court must see whether the view
taken by the trial court while acquitting an accused can
be reasonably taken on the basis of the evidence on
record. If the view taken by the trial court is a possible
view, the appellate court cannot interfere with the order
of acquittal on the ground that another view could have
been taken.”
11 Neutral Citation No. ( 2025:HHC:8845 )
12. Thus, the law on the issue can be summarized to the
effect that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the Appellate Court can interfere with the order of
acquittal. Further, if two views were possible on the basis of the
evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the learned Trial Court, merely,
because the Appellate Court could have arrived at a different
conclusion than that of the learned Trial Court.
13. The prosecution, in order to prove its case, examined
as many as fourteen witnesses, however, its case mainly rests
upon the statements of PW-1 SI Nokh Ram, PW-2 Ashok Kumar,
PW-3 Paramjit Singh, PW-13 ASI Mohar Singh and PW-14 HC Nav
Raj. Out of the aforesaid prosecution witnesses PWs 2 and 3, who
are independent witnesses, have turned hostile.
14. PW-1 SI Nokh Ram, deposed that on 18.05.2015,
around 03:00 p.m., he alongwith ASI Mohar Singh, HC Dharam
Singh, HHC Sewa Singh, HHC Sukhbir Singh and Constable Nav
Raj was on patrolling and traffic checking duty in official vehicle,
which was being driven by Constable Tapender, towards Behral
School near Paonta Sahib-Yamnuna Nagar road. Around 04:00
p.m., he had challaned two motorcycles and one more at 04:00-
12 Neutral Citation No. ( 2025:HHC:8845 )
04:15 p.m. He further stated that around 04:30 p.m., ASI Mohar
Singh stopped a motorcycle, bearing Registration No. HP-17C-
3826. The motorcyclist had kept a bag on the fuel tank between his
legs. As per version of this witness, ASI Mohar Singh had also
stopped another motorcycle, which was applied for, whereupon two
persons were sitting who disclosed their names as Ashok Kumar
(rider) and Paramjit Singh (pillion rider). He also stated that in
presence of Ashok Kumar and Paramjit Singh, ASI Mohar Singh
checked the carry-bag which was being kept by the accused
between his legs on the fuel tank and it was found containing some
substance, which was found to be churapost (poppy-husk).
Thereafter, ASI Mohar Singh sent Constable Nav Raj for bringing
weighing scale, who brought the same and in presence of the
aforesaid witnesses, the recovered contraband was weighed,
which was found to be 2 kgs.
15. PW-2, Ashok Kumar, one of the independent
witnesses, did not support the prosecution case and he was
declared hostile. He was cross-examined at length by the learned
Public Prosecutor, but nothing fruitful was elicited from him. This
witness, in his cross-examination, deposed that on 18.05.2015, he
alongwith Paramjit went towards Satiwala from Behral upon a
motorcycle and around 04:25 p.m. at Behral, Police stopped them.
13 Neutral Citation No. ( 2025:HHC:8845 )
He has further stated that at that relevant time, motorcycle bearing
Registration No.HP-17C-3826, came from Behral side and it was
also stopped for checking. As per this witness, when they were
standing at the spot, Police associated them in the police
investigation by explaining the proceedings of the investigation.
This witness denied that in their presence, Investigating Officer
inquired about the name and address of the motorcyclist i.e. HP-
17C-3826, who disclosed his name as Firoz Khan. He also denied
that Investigating Officer inquired about the carry-bag which was
being kept by the motorcyclist (accused) between his legs on the
fuel tank and he was unable to answer. This witness denied the
checking of the carry-bag and recovery of any substance from the
accused.
16. PW3, Paramjit Singh, another independent witness,
also did not support the prosecution case and he was also
declared hostile. This witness was cross-examined at length by the
learned Public Prosecutor, but nothing fruitful was elicited from
him. In his cross-examination by the defence counsel, he deposed
that accused had not come at Batapul Chowk on his motorcycle in
his presence. He stated that he was not present at Behral Village
around 03:00 to 04:00 p.m. and no search of accused was
conducted in his presence. He also deposed that no churapost
14 Neutral Citation No. ( 2025:HHC:8845 )
(poppy-husk) was recovered in his presence from the accused.
17. PW-4, HASI Sukhbir Singh, No.294, deposed that on
18.05.2015, he along with ASI Mohar Singh, ASI Nokh Ram, HC
Dharam Singh, HHC Sewa Singh and Constable Nav Raj was on
patrolling and traffic checking duty towards Paonta Sahib-Yamuna
Nagar road, near Behral School, in their official vehicle, which was
being driven by Constable Tapender Singh. He further stated that
ASI Nokh Ram started challaning the vehicles under the Motor
Vehicles Act and a motorcycle (applied for) came from Behral
towards Paonta Sahib and it was stopped by ASI Nokh Ram. On
the aforesaid motorcycle, two persons were sitting and they
disclosed their names as Ashok Kumar (rider) and Paramjit (pillion
rider). In the interregnum, another motorcycle bearing Registration
No. HP-17C-3826 came from Satiwala towards Batapul side,
Paonta Sahib and it was stopped for checking by ASI Mohar Singh.
This witness has further stated that ASI Mohar Singh inquired the
name from the rider of the motorcycle upon which he told that he
was a local resident and tried to leave the spot but he was again
stopped by ASI Mohar Singh. Upon inquiry, the rider of the
motorcycle disclosed his name as Firoz Khan (accused). He also
stated that ASI Mohar Singh saw a green Thaili (carry-bag) which
was lying between the legs of the rider of the motorcycle near the
15 Neutral Citation No. ( 2025:HHC:8845 )
fuel tank and the same was checked by ASI Mohar Singh in
presence of the witnesses and it was found containing another
dusty bag (mutmaili thaili), which was found to be stuffed with a
substance in the form of wheat flour, which was churapost (poppy-
husk). Thereafter, Constable Nav Raj was sent by ASI Mohar Singh
to bring weighing scale, who brought the same, and the recovered
contraband, on weighment was found to be 2 kgs.
18. PW-13, SI Mohar Singh, Investigating Officer deposed
that on 18.05.2015 at around 03:00 p.m., he along with ASI Nokh
Ram, HHC Sukhbir, HC Dharam Singh, Constable Navraj, HHC
Sewa Singh, proceeded from Police Station for patrolling and traffic
checking towards Paonta Sahib-Yamuna Nagar road in
government vehicle, bearing registration No. HP-17C-1222, which
was being driven by driver Tapender Singh, He further deposed
that they were present near Behral School and were checking the
vehicles and around 04:25 p.m. an applied for motorcycle came
from Satiwala side and two persons were travelling on it. He also
deposed that the aforesaid motorcycle was stopped for checking
and the rider disclosed his name as Ashok Kumar and other
person disclosed his name as Paramjeet. At about 04:30 p.m.
another motorcycle, bearing registration No. HP-17C-3826, came
from Behral side and HHC Sukhbir Singh stopped it and the driver
16 Neutral Citation No. ( 2025:HHC:8845 )
of the said motorcycle disclosed his name as Firoz Khan (accused
herein) and he tried to conceal a green bag, which he was carrying
between his legs on the petrol tank of the motorcycle. As per this
witness, the said bag was checked in presence of Paramjit Singh
and Ashok Kumar on the spot and constable Navraj was directed
to click photographs from his mobile phone. On being checked,
the aforesaid green bag was found containing another matmaila
bag, which contained some brown powdered substance. The said
substance was found to be chura post and on weighment it was
found to be 2 kgs.
19. We have meticulously scrutinized the entire evidence
and upon close scrutiny thereof, we are of the firm opinion that the
prosecution has failed to prove its case beyond the scope of
reasonable doubt.
20. It is well settled that the conviction can be based upon
the testimony of the police officials, provided that such testimony is
reliable, trustworthy and confidence inspiring. The evidence of
police witnesses cannot be distrusted and disbelieved, merely on
account of their official status. The testimony of official witnesses,
including police officials, carries the same evidentiary value as the
testimony of any other person. The only difference is that Courts
have to be more circumspect while appreciating the evidence of
17 Neutral Citation No. ( 2025:HHC:8845 )
official witnesses to rule out the possibility of false implication of
the accused, especially when such a plea is specifically raised by
the defence. In Pramod Kumar Versus State (Government of
NCT of Delhi), (2013) 6 Supreme Court Cases 588, the Hon’ble
Supreme Court has held that if the testimony of the police officer is
found to be reliable and trustworthy, the Court can definitely act
upon the same. If, in the course of scrutinizing the evidence, the
Court finds the evidence of the police officer as unreliable and
untrustworthy, the Court may disbelieve him but it should not do so
solely on the presumption that a witness from the Department of
Police should be viewed with distrust. Para-13 of the judgment
reads as under:-
“13. This Court, after referring to State of U.P. v. Anil
Singh, State (Govt. of NCT of Delhi) v. Sunil and
Ramjee Rai v. State of Bihar has laid down
recently in Kashmiri Lal v. State of Haryana that
there is no absolute command of law that the
police officers cannot be cited as witnesses and
their testimony should always be treated with
suspicion. Ordinarily, the public at large show
their disinclination to come forward to become
witnesses. If the testimony of the police officer is
found to be reliable and trustworthy, the court
can definitely act upon the same. If, in the course
of scrutinising the evidence, the court finds the
evidence of the police officer as unreliable and
untrustworthy, the court may disbelieve him but it
should not do so solely on the presumption that a
witness from the Department of Police should be
viewed with distrust. This is also based on the
principle that quality of the evidence weighs over
the quantity of evidence.”
21. Similarly, in Baldev Singh Versus State of Haryana,
(2015) 17 Supreme Court Cases 554, the Hon’ble Supreme Court
18 Neutral Citation No. ( 2025:HHC:8845 )
has held that evidence of police witnesses cannot be discarded
merely on the ground that they belong to police force and
interested in the investigation and their desire to see the success
of the case. However, prudence requires that the evidence of
police officials who are interested in the outcome of the result of
the case needs to be carefully scrutinised and independently
appreciated. Relevant para of the judgment reads as under:-
“10. There is no legal proposition that evidence of
police officials unless supported by
independent evidence is unworthy of
acceptance. Evidence of police witnesses
cannot be discarded merely on the ground that
they belong to police force and interested in
the investigation and their desire to see the
success of the case. Prudence however
requires that the evidence of police officials
who are interested in the outcome of the result
of the case needs to be carefully scrutinised
and independently appreciated. Mere fact that
they are police officials does not by itself give
rise to any doubt about their
creditworthiness.”
22. In Surinder Kumar Versus State of Punjab, (2020) 2
Supreme Court Cases 563, the Hon’ble Supreme Court has held
that the Court cannot start with the presumption that the police
records are untrustworthy. As a presumption of law, the
presumption should be the other way round. Para-16 of judgment
reads as under:-
“16. In State (NCT of Delhi) Vs. Sunil 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
19 Neutral Citation No. ( 2025:HHC:8845 )initial trust on the actions and the documents
made by the police. At any rate, the court cannot
start with the presumption that the police
records are untrustworthy. As a presumption of
law, the presumption should be the other way
round. The official acts of the police have been
regularly performed is a wise principle of
presumption and recognised even by the
legislature”.
23. In Raveen Kumar v. State of H.P., (2021) 12 SCC 557, it
was laid down by the Hon’ble Supreme Court that non- association
of the independent witnesses will not be fatal to the prosecution
case. However, the Court will have to scrutinize the statements of
prosecution witnesses carefully. It was observed as under:-
“19. It would be gainsaid that the lack of
independent witnesses is not fatal to the
prosecution case. [Kalpnath Rai vs. State,
(1998) AIR SC 201] 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.”
24. Therefore, in view of the aforesaid settled legal position, the
testimony of police witnesses cannot be rejected on the ground of
non-corroboration by independent witnesses, however such
testimony needs to be carefully scrutinized. The same must inspire
confidence and should be consistent with the case set up by the
prosecution. In case there are material contradictions, which goes
to the root of the case and make the prosecution case highly
doubtful, then this Court would obviously be circumspect while
20 Neutral Citation No. ( 2025:HHC:8845 )
placing reliance on such testimony.
25. Now, applying the aforesaid principles to the facts of
the case on hand. The case of the prosecution is that 2 kgs of
poppy-husk was recovered by the Police from the accused in
presence of two independent witnesses, i.e. Ashok Kumar and
Paramjit. However, both the aforesaid independent witnesses did
not support the prosecution case and they have turned hostile.
They were subjected to cross-examination by the learned Public
Prosecutor, however, nothing favourable could be elicited from
their exhaustive cross-examination. Both of them had denied the
recovery of any contraband from the accused. Both of them
claimed that they were standing/passing-by Batapul, when the
police called them and took their signatures and they have not
witnessed any recovery from the accused. As per the story of the
prosecution, the Investigating Officer had sent Constable Nav Raj
(PW-14) to bring weighing scale and weights, who brought the
same from the shop of Charan Singh (PW-6). However, while
appearing in the witness-box as PW-6, the aforesaid Charan
Singh, did not support the prosecution case and had turned hostile.
In cross-examination by the learned Public Prosecutor, he
specifically denied that on 18.05.2015, at about 04:50 p.m.,
Constable Nav Raj came to his shop to take weighing scale and
21 Neutral Citation No. ( 2025:HHC:8845 )
weights. He further denied that he gave weighing scale and
weights of 2 kg, 1 kg, 500 grams, 200 grams, 100 grams and 50
grams to him. Hence, in view of the material discrepancies,
contradictions and inconsistencies in the case of the prosecution,
the statements of the police/official witnesses cannot be believed.
26. Another ground on which the learned Trial Court has
acquitted that accused is that the contraband allegedly seized from
the accused was never produced before the Magistrate. The
perusal of the record reveals that the case property, in the instant
case, was never produced before the concerned Magistrate for
certification of inventory as provided under Section 52A of the
NDPS Act. For ready reference Section 52A of the NDPS Act is
extracted hereunder:-
“[52A. Disposal of seized narcotic drugs and
psychotropic substances.– 2(1) The Central
Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class
of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of
by such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.
(2) Where any 3[narcotic drugs, psychotropic
substances, controlled substances or conveyances]
has been seized and forwarded to the officer-in-charge
of the nearest police station or to the officer
empowered under section 53, the officer referred to in
22 Neutral Citation No. ( 2025:HHC:8845 )sub-section (1) shall prepare an inventory of
such 3[narcotic drugs, psychotropic substances,
controlled substances or conveyances] containing such
details relating to their description, quality, quantity,
mode of packing, marks, numbers or such other
identifying particulars of the 3[narcotic drugs,
psychotropic substances, controlled substances] or
conveyances or the packing in which they are packed,
country of origin and other particulars as the officer
referred to in sub-section (1) may consider relevant to
the identity of the 3[narcotic drugs, psychotropic
substances, controlled substances or conveyances] in
any proceedings under this Act and make an
application, to any Magistrate for the purpose of–
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such magistrate,
photographs of 4[such drugs, substances or
conveyances] and certifying such photographs as true;
or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such
magistrate and certifying the correctness of any list of
samples so drawn.
(3) Where an application is made under sub-section
(2), the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an
offence under this Act, shall treat the inventory, the
photographs of 5[narcotic drugs, psychotropic
substances, controlled substances or conveyances]
and any list of samples drawn under sub-section (2)
and certified by the Magistrate, as primary evidence in
respect of such offence.”
27. Thus, Section 52-A of the NDPS Act mandates the
procedure for disposal of seized Narcotic Drugs and Psychotropic
Substance and Section 52-A(4) of the NDPS Act lays down that
every Court trying an offence under the Act shall treat the
inventory, the photographs (Narcotic Drugs and Psychotropic
Substance, Control Substance or conveyances) and any list of
23 Neutral Citation No. ( 2025:HHC:8845 )
samples drawn under Sub-Section(2) and certified by the
Magistrate as primary evidence in respect of such offence. Section
52-A(2) of NDPS Act lays down interalia for any Magistrate to
certify the correctness of the inventory so prepared; or certifying
the photographs of such Drugs or substances taken in his
presence as true; or certifying the correctness of any list of
samples so drawn in his presence.
28. In the instant case, there is absolute non-compliance of
Section 52-A of the NDPS Act, as the Investigating Officer has
failed to adopt the procedure as prescribed by the statute, which
creates a serious doubt about the entire story of the prosecution.
The prosecution has failed to bring any evidence to show any
inventory or photographs taken by it, so also no Magistrate has
certified any photographs or inventory so prepared or list of
samples so drawn which is the mandate of compliance of Sec. 52-
A of the NDPS Act. Therefore, non-compliance of Section 52A of
the Act renders the entire prosecution case vitiated.
29. In view of what has been discussed hereinabove, no
interference in the judgment of acquittal dated 12.04.2024, passed
by the learned Special Judge, Paonta Sahib, District Sirmaur, H.P.,
in Criminal Case No. 21-N/7 of 2015 is required, as the same is
result of proper appreciation of evidence and law. The appeal,
24 Neutral Citation No. ( 2025:HHC:8845 )
which is devoid of merits, deserves dismissal and is accordingly
dismissed. Bail bonds are discharged.
Pending application(s), if any, shall also stand disposed
of.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
26th March, 2025
(virender)
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