Himachal Pradesh High Court
Digvijay Singh vs State Of Himachal Pradesh on 12 August, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 204 of 2024
Reserved on: 30.07.2025
.
Decided on: 12.08.2025
Digvijay Singh ....... Appellant
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon’ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant: Ms. Madhurika Sekhon Verma,
Advocate.
For the Respondent: Mr. Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and order dated 24.04.2024 passed by learned Special Judge (1),
Shimla, District Shimla, H.P. (learned Trial Court) vide which
the appellant (accused before the learned Trial Court) was
convicted of the commission of an offence punishable under
Section 21 of Narcotic Drugs and Psychotropic Substances Act,
1985 (in short ‘ND&PS Act‘) and was sentenced to undergo
rigorous imprisonment for four years, pay a fine of ₹25,000/-
1
Whether the reporters of the local papers may be allowed to see the Judgment?yes
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and in default of payment of fine to undergo further
imprisonment for one year for the commission of aforesaid
offence. (Parties shall hereinafter be referred to in the same
.
manner as they were arrayed before the learned Trial Court for
convenience.)
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 21, 25 & 29 of the ND&PS
Act. It was asserted that HC Chander Mohan (PW-14), HC Maan
Singh (PW-12), Constable Kapil (PW-13) and Constable Arun
(PW-8) had gone towards Dhalli tunnel, Bhatta Kuffar, Shanan,
Malyana, etc. on 26.09.2018. When they reached the bifurcation
located near Housing Board Colony at 1:10 am, they found a
vehicle bearing registration No. HP-10B-1679 parked at a lonely
place. Its internal light was switched on. The police approached
the vehicle and found a person sitting inside it, who revealed his
name as Digvijay Singh. The police asked him as to why he had
parked the vehicle in a lonely place, but he could not give any
satisfactory answer. The police demanded the documents for
the vehicle. He searched for the documents but could not find
any. Hence, HC Chander Mohan opened the dashboard to check
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the documents. He found a spherical substance wrapped with
‘khaki’ tape. The accused could not give any satisfactory reply
regarding the substance. HC Chander Mohan removed the
.
‘Khaki’ tape and found a polythene inside it, which was
containing beige substance. HC Chander Mohan checked it and
found it to be ‘heroin’. HC Chander Mohan sent HC Maan Singh
and Constable Kapil to bring an independent witness. They
returned after fifteen minutes and disclosed that they could not
find any independent witness. HC Chander Mohan associated
HC Maan Singh and Constable Kapil as witnesses and weighed
the substance in their presence. Its weight was found to be 23
grams. The police put the ‘heroin’, ‘khaki’ tape and the
polythene in a cloth parcel and sealed the parcel with six
impressions of seal ‘K’. The seal impression (Ex. P2/PW12) was
taken on a separate piece of cloth. NCB-1 form (Ex. P2/PW5)
was filled in triplicate, and the seal impression was also put on
the form. The seal was handed over to HC Maan Singh after its
use. Digvijay Singh produced the registration certificate,
insurance certificate and his driving licence. The parcel, NCB-I
form, sample seal, documents, key and the vehicle were seized
vide seizure memo (Ex.P4/PW2). Rukka (Ex. P2/PW14) was
prepared and sent to the police station, where F.I.R.
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(Ex.P2/PW15) was registered. HC Chander Mohan conducted the
investigation. He prepared the site plan (Ex. P3/PW14) and
recorded the statements of witnesses as per their version. He
.
arrested the accused vide memo (Ex. P2/PW8). He produced the
accused, case file and the case property before Raj Kumar
(PW15), who resealed the parcel with seal ‘X’. He put the seal
impression on the NCB-I form and obtained the sample seal
(Ex. P3/PW15) on a separate piece of cloth. He issued the
resealing certificate (Ex. P4/PW15). The case property was
handed over to HC Om Parkash (PW5), who made an entry at Sr.
No.872 in the malkhana register and deposited the case
property in the malkhana. He handed over the case property,
docket, copy of seizure memo, NCB-I form and sample seal to
Constable Mukesh (PW6) with direction to carry them to
Forensic Science Laboratory (FSL), Junga vide R.C. No.215/18
(Ex.P3/PW5). Constable Mukesh delivered the case property and
other articles at SFSL, Junga and handed over the receipt to
MHC on his return. Special report (Ex. P1/PW7) was handed over
to Dy.S.P., Dinesh Sharma on 27.09.2018. He made an
endorsement on the special report and handed it over to his
Reader, ASI Ramesh Chand (PW11), who made an entry at Sr.
No.62 of the special report register (Ex. P1/PW11) and retained
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the special report on record. The result of the analysis
(Ex.P8/PW14) was issued, in which it was mentioned that the
exhibit was a sample of Diacetylmorphine (‘heroine’). Chander
.
Mohan (PW14) analyzed the call details record and found that
Digvijay Singh and Vipul Thakur were talking to each other.
Digvijay Singh disclosed during interrogation that he had
purchased the ‘heroin’ from Delhi. He led the police to Delhi
and pointed out pillar No.792, where he had purchased the
‘heroin’ from auto driver Sunny and another person. Memo of
identification (Ex.P1/PW2) was prepared. Chander Mohan filed
an application (Ex. P9/PW14) for the certification of the
inventory. The Court passed an order (Ex. P10/PW14) and
issued a certificate (Ex. P11/PW14). The photographs of the
inventory proceedings (Ex. P12/A1/PW14 to Ex. P12/A9/PW14)
were taken. Statements of witnesses were recorded as per their
version, and after the completion of the investigation, the
challan was prepared and presented before the learned Trial
Court.
3. Learned Trial Court charged the accused with the
commission of offences punishable under Sections 21, 25 and 29
of the ‘ND&PS Act‘, to which he pleaded not guilty and claimed
to be tried.
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4. The prosecution examined 15 witnesses to prove its
case. Anil Kumar (PW1) carried the special report to Dy. S.P. City
Shimla. Constable Devinder (PW2) and HC Yogesh (PW3) are the
.
witnesses to the identification of pillar No.792. LC Sulekha
(PW4) brought the case property and the result of analysis from
SFSL, Junga. Om Parkash (PW5) was posted as MHC with whom
the case property was deposited. Constable Mukesh (PW6)
carried the case property to SFSL, Junga. Dinesh Sharma (PW7)
was posted as Dy.S.P. City to whom the special report was
handed over. Arun Kumar (PW8), Maan Singh (PW12) and
Constable Kapil Dev (PW13) are the official witnesses to the
recovery. Devinder Singh (PW9) proved the call details record
and the customer application form. Kamal Dev (PW10) prepared
the challan. ASI Ramesh Chand (PW11) was posted as Reader to
Dy. S.P. City. ASI Chander Mohan (PW14) conducted the
investigation. Dy. S.P. Raj Kumar (PW15) was posted as S.H.O.,
who resealed the case property.
5. The accused, in their statements recorded under
Section 313 of Cr.P.C., denied the prosecution’s case in its
entirety. They claimed that they were innocent and were falsely
implicated. Statements of Vikender Kumar (DW1) and Ashok
Kumar Sharma (DW2) were recorded in defence.
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6. Learned Trial Court held that the testimonies of
prosecution witnesses corroborated each other on material
particulars. The explanation given by the police officials for the
.
non-association of independent witnesses was satisfactory. The
defence version that accused Digvijay and Rajan were picked up
by the police from ISBT, Shimla, and falsely implicated was not
proved. The integrity of the case property was established.
Accused Vipul could not be held liable merely because he was in
touch with accused Digvijay. Hence, the accused Digvijay was
convicted of the commission of an offence punishable under
Section 21 and sentenced as aforesaid. Accused Vipul was
acquitted of the charged offences.
7. Being aggrieved by the judgment and order passed
by the learned Trial Court, the accused has filed the present
appeal, asserting that the learned Trial Court erred in
convicting and sentencing the accused. The evidence was not
properly appreciated. The statements of official witnesses
contradicted each other on material particulars. The place of the
incident was located on the National Highway in the vicinity of a
thickly populated area. There was no explanation for the non-
association of independent witnesses. The documents were
falsely prepared to comply with the various provisions of the
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ND&PS Act. The accused had an altercation with the police
officials, and the police falsely implicated the accused. The
integrity of the case property was not established. The
.
testimony of the defence witness was wrongly ignored.
Therefore, it was prayed that the present appeal be allowed and
the judgment and order passed by the learned Trial Court be set
aside.
8.
I have heard Ms. Madhurika Sekhon Verma, learned
counsel for the appellant/accused, and Mr. Prashant Sen,
learned Depute Advocate General for the respondent/State.
9. Ms. Madhurika Sekhon Verma, learned counsel for
the appellant/accused, submitted that the accused is innocent
and he was falsely implicated. The learned Trial Court failed to
properly appreciate the evidence on record. The place of the
incident was located on a busy highway in the vicinity of a
thickly populated area. However, no independent witness was
associated. The site plan does not depict the correct spot
position. The seal was not produced before the Court, and the
same is fatal to the prosecution’s case. The statements of
prosecution witnesses contradicted each other on material
aspects. Therefore, she prayed that the present appeal be
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allowed and the judgment and order passed by the learned Trial
Court be set aside. She submitted in the alternative that the
punishment imposed by the learned Trial Court upon the
.
accused is harsh and disproportionate to the quantity of
‘heroin’ stated to have been recovered from the possession of
the accused. Hence, she prayed that the sentence imposed by
the learned Trial Court be modified.
10.
Mr. Prashant Sen, learned Deputy Advocate General
for the respondent/State, submitted that the prosecution
witnesses consistently deposed about the recovery of the
‘heroin’. Minor contradictions in the statements of official
witnesses are not sufficient to discard them. A proper
explanation was given for the non-production of the seal, and
mere non-production of the seal is not fatal to the
prosecution’s case. Narcotics are adversely affecting the young
generation, and the learned Trial Court had rightly imposed the
sentence of four years’ rigorous imprisonment, which cannot
be said to be harsh. Hence, he prayed that the present appeal be
dismissed.
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11. I have given considerable thought to the
submissions made at the bar and have gone through the records
carefully.
.
12. Vikender Kumar (DW1) stated that he, Digvijay and
Rajan were coming from Delhi in a government bus. They
reached ISBT, Shimla at 7:30 P.M. Digvijay asked them to
accompany him to Rohru in his Bolero vehicle. He (Vikender
Kumar) went to the washroom. Digvijay and Rajan went to the
parking lot to take the vehicle. When he went to the parking, he
saw Digvijay and Rajan were surrounded by 3-4 persons who
were holding pistols. They were later identified as police
officials. They took Digvijay and Rajan in a vehicle. He boarded a
bus to Rohru. He came to know subsequently that the accused
was apprehended by the police for possessing ‘heroin’.
13. The testimony of this witness was rightly rejected by
the learned Trial Court. He stated that the police picked up
Digvijay and Rajan from the parking located at the bus stand,
Tuti Kandi. Significantly accused Digvijay has nowhere stated in
his statement recorded under Section 313 of Cr.P.C that he was
picked up from the bus stand, Tuti Kandi. Therefore, this
version was propounded by Vikender Singh for the first time
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and was an afterthought. It was not suggested to Arun Kumar
(PW8) that the accused was picked up from ISBT, Tuti Kandi. It
was suggested to Maan Singh (PW12) in his cross-examination
.
that the vehicle was parked at ISBT, which is contrary to the
statement of Vikender (DW1). A similar suggestion was made to
Constable Kapil and ASI Chander Mohan (PW14). Further,
Vikender did not take any action when the accused was taken by
the persons holding pistols. He boarded the bus and went to
Rohru as if nothing had happened. This is not normal human
conduct and would make it difficult to rely upon his testimony.
14. It was submitted that the call details record
(Ex.P1/PW9) shows that the mobile phone was in Delhi on
23.09.2018. It moved to Punjab on 24 th and was in Haryana on
25th, which supports the statement of Vikender regarding the
movement of accused Digvijay from Delhi to Shimla in a bus.
This submission cannot be accepted. The call details record
shows that the mobile phone was last used in Delhi on
23.09.2018 at 23:16:36. Thereafter, it was used in Punjab on 24 th
and 25th till 15:02:05 and was used in Haryana at 15:27:50. This
call detail falsifies the statement of Vikender that accused
Digvijay and Vikender had travelled from Delhi to Shimla on
25th. Even if the accused Digvijay and Vikender had travelled
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together from Delhi to Shimla on 25th, it will not falsify the
prosecution case because the accused was found in possession
of ‘heroin’ on 26th at 1:10 A.M. It was quite possible for the
.
accused to travel from Delhi to Shimla on 25th and thereafter, to
be present near Housing Board Colony with the ‘heroin’ on 26 th
at 1:10 am. Therefore, the statement of Vikender (DW1) will not
help the accused in any manner.
15.
Ms. Madhurika Sekhon Verma, learned counsel,
submitted that the site plan (Ex.P3/P14) does not depict the
correct spot position. There is a link road near the place ‘E’
where the vehicle is shown. Houses and shops are located in the
vicinity, which were not depicted in the site plan. This
submission is not based upon any material on record. ASI
Chander Mohan (PW14) denied that there were 3-4 shops at the
bifurcation. He denied that hotels and other houses were
located at a distance of 100 meters from the spot. He also denied
that the vehicle was not parked at a secluded place. A denied
suggestion does not amount to any proof, and these
suggestions do not prove the defence version that the place of
incident was not a secluded spot but a heavily populated area.
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16. Constable Kapil (PW13) stated in his cross-
examination that there was no hotel or residential house near
the spot. Housing Board colony bifurcation was located at a
.
distance of 150-200 meters from the spot. He denied that there
were hotels and shops near the spot. He volunteered to say that
hotels and shops were located at a distance of 100-150 meters.
Thus, his testimony also does not establish the existence of a
hotel and shop near the place of the incident. Maan Singh
(PW12) stated in his cross-examination that there was no hotel
or residence near the spot. He denied that hotels and shops
existed near the spot. He volunteered to say that there were no
such hotels and shops within 100-150 meters. His testimony
also does not establish the existence of shops or the residences
near the place of the incident. HC Arun Kumar (PW8) was not
asked about the existence of hotels and residences near the
place of the incident.
17. Therefore, there is no material on record to support
the submission that the site plan was not correctly prepared, or
there were shops and residences at the place of incident which
were not depicted by the Investigating Officer in the site plan.
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18. HC Arun Kumar (PW8), HC Maan Singh (PW12),
Constable Kapil (PW13) and ASI Chander Mohan (PW14)
consistently deposed about the police party being on patrolling
.
duty and having seen the vehicle parked at a secluded place.
They also deposed that police went near the vehicle and found
the accused Digvijay Singh present in the vehicle, who could not
give any satisfactory answer regarding the parking of the
vehicle. They deposed about the recovery of a sphere-like
substance wrapped with ‘khaki’ cello tape, opening it, and the
recovery of ‘heroin’ from it. They deposed about the weighing
of ‘heroin’, and other steps regarding the investigation.
Nothing was suggested to them that they had any enmity with
the accused or any motive to falsely implicate the accused.
19. It was submitted that the police did not join any
independent witness, which is fatal to the prosecution. The
reference was made to the photograph (Ex.P1/PW3) to submit
that a truck is visible in this photograph, and the occupants of
the truck could have been associated as independent witnesses.
This submission is not acceptable. There is no evidence that the
truck had any occupants. No person deposed about any such
fact. The photographs also do not show the presence of any
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person. Therefore, an independent person could not have been
associated simply because a truck was parked on the spot.
20. The statements of the police officials show that the
.
police party became suspicious after seeing that a vehicle was
parked with its lights on at a secluded place. They went near the
vehicle and demanded the papers. When the accused could not
produce the papers, the police opened the dashboard, looked for
the papers and found a spherical substance wrapped with
‘khaki’ tape inside the dashboard. There is nothing in the cross-
examination of the police officials to show that they had any
prior information regarding the transportation of ‘heroin’.
Therefore, it was a case of chance recovery.
21. The term chance recovery was explained by the
Hon’ble Supreme Court in the State of H.P. v. Sunil Kumar,
(2014) 4 SCC 780: (2014) 2 SCC (Cri) 449: 2014 SCC OnLine SC
205, and it was held that chance recovery means a recovery
made by chance or by accident or unexpectedly. When the police
were not looking for the drugs nor expected to find the drugs,
any recovery is a chance recovery. A positive suspicion of the
police official is not sufficient to show that it was not a case of
chance recovery. It was observed at page 784:
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“13. The expression “chance recovery” has not been
defined anywhere, and its plain and simple meaning
seems to be a recovery made by chance or by accident or
unexpectedly. In Mohinder Kumar v. State [(1998) 8 SCC
655: 1999 SCC (Cri) 79], this Court considered a chance.
recovery as one when a police officer “stumbles on”
narcotic drugs when he makes a search. In Sorabkhan
Gandhkhan Pathan v. State of Gujarat [(2004) 13 SCC
608: (2006) 1 SCC (Cri) 508], the police officer, whilesearching for illicit liquor, accidentally found some
charas. This was treated as a “chance recovery”.
14. Applying this to the facts of the present appeal, it is
clear that the police officers were looking for passengers
who were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried
by a passenger. This can only be described as a recovery
by chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.
15. It is not possible to accept the view of the High Court
that since the police officers conducted a random search
and had a “positive suspicion” that Sunil Kumar was
carrying contraband, the recovery of charas from his
person was not a chance recovery. The recovery of
contraband may not have been unexpected, but the
recovery of charas certainly was unexpected,
notwithstanding the submission that drugs are easily
available in the Chamba area. The police officers had no
reason to believe that Sunil Kumar was carrying any
drugs, and indeed, that is also not the case set up in this
appeal. It was plainly a chance or accidental, or
unexpected recovery of charas–Sunil Kumar could well
have been carrying any other contraband, such as
smuggled gold, stolen property or an illegal firearm or
even some other drug.
22. In the present case, the police had no prior
information about the transportation of charas by the accused.
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They became suspicious of the conduct of the accused, and the
present case will fall within the meaning of chance recovery.
23. It was laid down by the Hon’ble Supreme Court in
.
Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the
police party is under no obligation to join independent
witnesses while going on patrolling duty, and the association of
any person after effecting the recovery would be meaningless.
It was observed:
“3. Learned counsel for the appellant has taken us
through the evidence recorded by the prosecution, as
also the judgment under appeal. Except for the comment
that the prosecution is supported by two police officials
and not by any independent witness, no other comment
against the prosecution is otherwise offered. Thiscomment is not of any value since the police party was
on patrolling duty, and they were not required to take
along independent witnesses to support recovery if andwhen made. It has come to the evidence of ASI Jangir
Singh that after the recovery had been effected, somepeople had passed by. Even so, obtaining their counter-
signatures on the documents already prepared wouldnot have lent any further credence to the prosecution
version.”
24. In similar circumstances, it was laid down by this
Court in Chet Ram Vs State Criminal Appeal no. 151/2006
decided on 25.7.2018 that when the accused was apprehended
after he tried to flee on seeing the police, there was no necessity
to associate any person from the nearby village. It was
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observed: –
“(A)appellant was intercepted, and a search of his bag
was conducted on suspicion, when he turned back and
tried to flee, on seeing the police. Police officials did not.
have any prior information, nor did they have any
reason to believe that he was carrying any contraband.
They overpowered him when he tried to run away and
suspected that he might be carrying some contraband in
his bag. Therefore, the bag was searched, and Charas
was recovered. After the recovery of Charas, there was
hardly any need to associate any person from the nearby
village because there remained nothing to be witnessed.
It is by now well settled that non-association of
independent witnesses or non-supporting of the
prosecution version by independent witnesses where
they are associated, by itself, is not a ground to acquit an
accused. It is also well-settled that the testimony of
official witnesses, including police officials, carries the
same evidentiary value as the testimony of any other
person. The only difference is that Courts have to be
more circumspect while appreciating the evidence of
official witnesses to rule out the possibility of false
implication of the accused, especially when such a plea
is specifically raised by the defence. Therefore, while
scrutinising the evidence of official witnesses, in a case
where independent witnesses are not associated,
contradictions and inconsistencies in the testimony of
such witnesses are required to be taken into account and
given due weightage unless satisfactorily explained. Of
course, it is only the material contradictions and not the
trivial ones, which assume significance.” (Emphasis
supplied)
25. It was laid down by the Hon’ble Supreme Court of
India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557:
(2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-
association of the independent witnesses will not be fatal to the
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prosecution case. However, the Court will have to scrutinise the
statements of prosecution witnesses carefully. It was observed
at page 566:
.
(C) Need for independent witnesses
19. It would be gainsaid that the lack of independent
witnesses is not fatal to the prosecution’s case.
[Kalpnath Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri)
134: AIR 1998 SC 201, para 9] However, such omissions
cast an added duty on courts to adopt a greater degree of
care while scrutinising the testimonies of the police
officers, which if found reliable can form the basis of a
successful conviction.”
26. This position was reiterated in Rizwan Khan v. State
of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730,
wherein it was observed at page 633:
“12. It is settled law that the testimony of the official
witnesses cannot be rejected on the ground of non-
corroboration by independent witnesses. As observedand held by this Court in a catena of decisions,
examination of independent witnesses is not anindispensable requirement and such non-examination is
not necessarily fatal to the prosecution case [see PardeepKumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC
808: (2019) 1 SCC (Cri) 420]].
13. In the recent decision in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC
563: (2020) 1 SCC (Cri) 767], while considering
somewhat similar submission of non-examination of
independent witnesses, while dealing with the offence
under the NDPS Act, in paras 15 and 16, this Court
observed and held as under: (SCC p. 568)
“15. The judgment in Jarnail Singh v. State of
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( 2025:HHC:27073 )SCC 521: (2011) 1 SCC (Cri) 1191] , relied on by the
counsel for the respondent State, also supports the
case of the prosecution. In the aforesaid judgment,
this Court has held that merely because the
prosecution did not examine any independent.
witness would not necessarily lead to a conclusion
that the accused was falsely implicated. The
evidence of official witnesses cannot be distrusted
and disbelieved merely on account of their officialstatus.
16. In State (NCT of Delhi) v. Sunil [State (NCT of
Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri)
248], it was held as under: (SCC p. 655)r to
‘It is an archaic notion that actions of the
police officer should be approached with
initial distrust. It is time now to start placing
at least initial trust in the actions and thedocuments made by the police. At any rate,
the court cannot start with the presumption
that the police records are untrustworthy. As
a proposition of law, the presumption shouldbe the other way around. That official acts of
the police have been regularly performed is a
wise principle of presumption andrecognised even by the legislature.”
27. Similar is the judgment of this Court in Balwinder
Singh & Anr. Vs State of H.P., 2020 Criminal L.J. 1684 , wherein it
was held: –
“3. (iii) Learned defence counsel contended that in the
instant case, no independent witness was associated by
the Investigating Officer; therefore, the prosecution case
cannot be said to have been proved by it in accordance
with the provisions of the Act. Learned defence counsel,
in support of his contention, relied upon the titled
Krishan Chand versus State of H.P.,2017 4 CriCC 531
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witnesses were not associated.”
28. This position was reiterated in Kallu Khan v. State of
Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223 , wherein
.
it was held at page 204: –
“17. The issue raised regarding conviction solely relying
upon the testimony of police witnesses, without
procuring any independent witness, recorded by the two
courts, has also been dealt with by this Court in Surinder
Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC563: (2020) 1 SCC (Cri) 767] holding that merely because
independent witnesses were not examined, the
conclusion could not be drawn that the accused wasfalsely implicated. Therefore, the said issue is also well
settled and in particular, looking at the facts of the
present case, when the conduct of the accused was
found suspicious, and a chance recovery from the
vehicle used by him is made from a public place andproved beyond a reasonable doubt, the appellant cannot
avail any benefit on this issue. In our view, the
concurrent findings of the courts do not call forinterference.”
29. A similar view was taken in Kehar Singh v. State of
H.P., 2024 SCC OnLine HP 2825, wherein it was observed:
16. As regards non-association of the independent
witnesses, it is now well settled that non-association of
the independent witnesses or non-supporting of the
prosecution version by independent witnesses itself is
not a ground for acquittal of the Appellants/accused. It
is also well-settled that the testimonies of the official
witnesses, including police officials, carry the same
evidentiary value as the testimony of any other person.
The only difference is that the Court has to be most
circumspect while appreciating the evidence of the
official witnesses to rule out the possibility of false
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22
( 2025:HHC:27073 )
implication of the accused, especially when such a plea
is specifically raised by the defence. Therefore, while
scrutinising the evidence of the official witnesses, in
cases where independent witnesses are not associated,
contradictions and inconsistencies in the testimonies of
.
such witnesses are required to be taken into account and
given due weightage unless satisfactorily explained.
However, the contradiction must be a material and not a
trivial one, which alone would assume significance.
17. Evidently, this is a case of chance recovery;
therefore, the police party was under no obligation to
join independent witnesses while going on patrolling
duty, and the association of any person after effecting
the recovery would be meaningless.
Xxxx
19. A similar reiteration of law can be found in the
judgment rendered by the learned Single Judge of this
Court in Avtar @ Tarri v. State of H.P., (2022) Supreme
HP 345, wherein it was observed as under: —
“24. As regards the second leg of the argument
raised by learned counsel for the appellant, it
cannot be said to be of much relevance in the given
facts of the case. The factual situation was that thepolice party had laid the ‘nakka’ and immediately
thereafter had spotted the appellant at somedistance, who got perplexed and started walking
back. The conduct of the appellant was sufficient to
raise suspicion in the minds of police officials. Atthat stage, had the appellant not been apprehended
immediately, the police could have lost the
opportunity to recover the contraband. Looking
from another angle, the relevance of independent
witnesses could be there when such witnesses were
immediately available or had already been
associated at the place of ‘nakka’. These, however,
are not mandatory conditions and will always
depend on the factual situation of each and every
case. The reason is that once the person is
apprehended and is with the police, a subsequent::: Downloaded on – 12/08/2025 21:28:25 :::CIS
23
( 2025:HHC:27073 )association of independent witnesses may not be
of much help. In such events, the manipulation, if
any, cannot be ruled out.”
Xxxx
.
22. A similar reiteration of law can be found in a very
recent judgment of the Coordinate Bench of this Court
in Cr. A. No. 202 of 2020, titled Dillo Begum v. State of
H.P., decided on 27.03.2024.”
30. Thus, in view of the binding precedents of this Court
and the Hon’ble Supreme Court, the non-association of
independent witnesses is not fatal, and the prosecution’s case
cannot be discarded due to the non-association of independent
witnesses. However, the Court will have to carefully scrutinise
the testimonies of the police officials.
31. It was submitted that there are contradictions in the
statements of official witnesses, which will make the
prosecution’s case suspect. The following contradictions were
highlighted:-
i) HC Arun Kumar (PW8) stated in his cross-
examination that there was no light on the spot,
which is contrary to the prosecution version that the
accused had switched on the light of the Bolero
vehicle.
ii) HC Arun Kumar (PW8) stated in his cross-
examination that they went towards Dhalli tunnel,
Bhatta Kuffar and returned from Bhatta Kuffar. HC
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24
( 2025:HHC:27073 )
Maan Singh (PW12) stated in his cross-examination
that they stopped at various places to check the
vehicles and took 20-25 minutes at every place. ASI
Chander Mohan (PW14) stated in his cross-
.
examination that they stopped at three places for
checking for about 10 minutes at every place.
32. In the present case, the incident had taken place on
26.09.2018. The statement of Arun Kumar (PW8) was recorded
on 22.7.2023. Statements of Maan Singh (PW12) and Kapil
Singh(PW13) were recorded on 13.3.2024, and the statement of
ASI Chander Mohan(PW14) was recorded on 14.3.2024. Thus,
the witnesses made the statements after the lapse of five to six
years from the incident. The contradictions were bound to
come, in the statements of the prosecution witnesses, due to
failure of memory with the passage of time, and mere
contradictions are not sufficient to make the prosecution’s case
doubtful. It was laid down by the Hon’ble Supreme Court in
Goverdhan v. State of Chhattisgarh (2025) SCC Online SC 69
that the discrepancies are not sufficient to discard the
prosecution case unless they are material. It was observed: –
“51. As we proceed to examine this crucial aspect, it may
be apposite to keep in mind certain observations made by
this Court relating to discrepancies in the account of
eyewitnesses.
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25
( 2025:HHC:27073 )
In Leela Ram (Dead) through Duli Chand v. State of
Haryana, (1999) 9 SCC 525, it was observed as follows:
“9. Be it noted that the High Court is within its
jurisdiction, being the first appellate court to
reappraise the evidence, but the discrepancies.
found in the ocular account of two witnesses,
unless they are so vital, cannot affect the
credibility of the evidence of the witnesses. Thereare bound to be some discrepancies between the
narrations of different witnesses when they speak
on details, and unless the contradictions are of a
material dimension, the same should not be usedto jettison the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical
niceties cannot be expected in criminal cases.
Minor embellishment, there may be, but variationsby reason therefore should not render the evidence
of eyewitnesses unbelievable. Trivial discrepancies
ought not to obliterate otherwise acceptable
evidence. In this context, reference may be made to
the decision of this Court in State of U.P. v. M.K.Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105]. In
para 10 of the Report, this Court observed: (SCC pp.
514-15)’10. While appreciating the evidence of a
witness, the approach must be whether theevidence of the witness, read as a whole,
appears to have a ring of truth. Once thatimpression is formed, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and
evaluate them to find out whether it is
against the general tenor of the evidence
given by the witness and whether the earlier
evaluation of the evidence is shaken as to
render it unworthy of belief. Minor
discrepancies on trivial matters not touching
the core of the case, a hypertechnical::: Downloaded on – 12/08/2025 21:28:25 :::CIS
26
( 2025:HHC:27073 )approach by taking sentences torn out of
context here or there from the evidence,
attaching importance to some technical
error committed by the investigating officer,
not going to the root of the matter, would.
not ordinarily permit rejection of the
evidence as a whole. If the court before
whom the witness gives evidence had the
opportunity to form the opinion about thegeneral tenor of evidence given by the
witness, the appellate court which had not
this benefit will have to attach due weight to
the appreciation of evidence by the trialcourt and unless there are reasons weighty
and formidable it would not be proper to
reject the evidence on the ground of minor
variations or infirmities in the matter oftrivial details. Even honest and truthful
witnesses may differ in some details
unrelated to the main incident because the
power of observation, retention andreproduction differ with individuals.’
10. In a very recent decision in Rammi v. State of
M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26], thisCourt observed: (SCC p. 656, para 24)
’24. When an eyewitness is examined atlength, it is quite possible for him to make
some discrepancies. No true witness canescape from making some discrepant details.
Perhaps an untrue witness who is well
tutored can successfully make his testimony
totally non-discrepant. But courts should
bear in mind that it is only when
discrepancies in the evidence of a witness are
so incompatible with the credibility of his
version that the court is justified in
jettisoning his evidence. But too serious a
view to be adopted on mere variations falling
in the narration of an incident (either as
between the evidence of two witnesses or as::: Downloaded on – 12/08/2025 21:28:25 :::CIS
27
( 2025:HHC:27073 )between two statements of the same
witness) is an unrealistic approach for
judicial scrutiny.’
This Court further observed: (SCC pp. 656-57,
paras 25-27).
’25. It is a common practice in trial courts to
make out contradictions from the previous
statement of a witness to confront himduring cross-examination. Merely because
there is an inconsistency in evidence, it is
not sufficient to impair the credit of the
witness. No doubt, Section 155 of theEvidence Act provides scope for impeaching
the credit of a witness by proof of an
inconsistent former statement. But a reading
of the section would indicate that all
r inconsistent statements are not sufficient toimpeach the credit of the witness. The
material portion of the section is extracted
below:
“155. Impeaching the credit of a
witness.–The credit of a witness may
be impeached in the following ways by
the adverse party, or, with the consentof the court, by the party who calls him
—
(1)-(2) ***
(3) by proof of former statements
inconsistent with any part of his
evidence which is liable to be
contradicted;”
26. A former statement, though seemingly
inconsistent with the evidence, need not
necessarily be sufficient to amount to a
contradiction. Only such an inconsistent
statement, which is liable to be
“contradicted”, would affect the credit of the
witness. Section 145 of the Evidence Act also
enables the cross-examiner to use any
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28
( 2025:HHC:27073 )
former statement of the witness, but it
cautions that if it is intended to “contradict”
the witness, the cross-examiner is enjoined
to comply with the formality prescribed
therein. Section 162 of the Code also permits
.
the cross-examiner to use the previous
statement of the witness (recorded under
Section 161 of the Code) for the only a limited
purpose, i.e. to “contradict” the witness.
27. To contradict a witness, therefore, must
be to discredit the particular version of the
witness. Unless the former statement has the
potency to discredit the present statement,
even if the latter is at variance with the
former to some extent, it would not be
helpful to contradict that witness
r (vide Tahsildar Singh v. State of U.P. [AIR
1959 SC 1012: 1959 Cri LJ 1231]).”
52. Further, this Court also cautioned about attaching too
much importance to minor discrepancies of the evidence
of the witnesses in Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat (1983) 3 SCC 217 as follows:
“5. … We do not consider it appropriate or
permissible to enter upon a reappraisal orreappreciation of the evidence in the context of the
minor discrepancies painstakingly highlighted by
the learned counsel for the appellant. Overmuch
importance cannot be attached to minordiscrepancies. The reasons are obvious:
(1) By and large, a witness cannot be
expected to possess a photographic memory
and to recall the details of an incident. It is
not as if a videotape is replayed on the
mental screen.
(2) Ordinarily, it so happens that a witness is
overtaken by events. The witness could not
have anticipated the occurrence, which so
often has an element of surprise. The mental::: Downloaded on – 12/08/2025 21:28:25 :::CIS
29
( 2025:HHC:27073 )faculties, therefore, cannot be expected to be
attuned to absorb the details.
(3) The powers of observation differ from
person to person. What one may notice,
another may not. An object or movement.
might emboss its image on one person’s
mind, whereas it might go unnoticed on the
part of another.
(4) By and large, people cannot accurately
recall a conversation and reproduce the very
words used by them or heard by them. They
can only recall the main purport of the
conversation. It is unrealistic to expect a
witness to be a human tape recorder.
(5) In regard to the exact time of an incident
or the time duration of an occurrence,
usually, people make their estimates by
guesswork on the spur of the moment at the
time of interrogation. And one cannot expect
people to make very precise or reliable
estimates in such matters. Again, it depends
on the time sense of individuals, which
varies from person to person.
(6) Ordinarily, a witness cannot be expected
to recall accurately the sequence of events
which take place in rapid succession or in a
short time span. A witness is liable to get
confused or mixed up when interrogated
later on.
(7) A witness, though wholly truthful, is
liable to be overawed by the court
atmosphere and the piercing cross-
examination made by the counsel and, out of
nervousness, mix up facts, get confused
regarding the sequence of events, or fill up
details from imagination on the spur of the
moment. The subconscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being
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30
( 2025:HHC:27073 )
disbelieved, though the witness is giving a
truthful and honest account of the
occurrence witnessed by him–perhaps it is
a sort of psychological defence mechanism
activated on the spur of the moment.”
.
53. To the same effect, it was also observed
in Appabhai v. State of Gujarat 1988 Supp SCC 241 as
follows:
“13. … The court, while appreciating the evidence,
must not attach undue importance to minor
discrepancies. The discrepancies which do not
shake the basic version of the prosecution’s casemay be discarded. The discrepancies which are due
to normal errors of perception or observation
should not be given importance. The errors due to
lapse of memory may be given due allowance. Thecourt, by calling into aid its vast experience of men
and matters in different cases, must evaluate the
entire material on record by excluding the
exaggerated version given by any witness. When a
doubt arises in respect of certain facts alleged bysuch a witness, the proper course is to ignore that
fact only unless it goes to the root of the matter to
demolish the entire prosecution story. Thewitnesses nowadays go on adding embellishments
to their version, perhaps for fear that theirtestimony being rejected by the court. The courts,
however, should not disbelieve the evidence ofsuch witnesses altogether if they are otherwise
trustworthy. Jaganmohan Reddy, J. speaking for
this Court in Sohrab v. State of M.P. [(1972) 3 SCC
751: 1972 SCC (Cri) 819] observed: [SCC p. 756, para
8: SCC (Cri) p. 824, para 8]
‘8. … This Court has held that falsus in uno,
falsus in omnibus is not a sound rule for the
reason that hardly one comes across a
witness whose evidence does not contain a
grain of untruth or, at any rate,
exaggeration, embroideries or
embellishments. In most cases, the::: Downloaded on – 12/08/2025 21:28:25 :::CIS
31
( 2025:HHC:27073 )witnesses when asked about details venture
to give some answer, not necessarily true or
relevant for fear that their evidence may not
be accepted in respect of the main incident
which they have witnessed but that is not to.
say that their evidence as to the salient
features of the case after cautious scrutiny
cannot be considered….'”
33. Hence, the testimonies of the witnesses have to be
examined to determine whether the contradictions are real or
apparent, material or minor.
34.
The contradiction regarding the time is not material
because nobody remembers the time by looking at the watch,
and when a person is asked about the time, he generally gives
his estimate, which may or may not be correct. This position
was laid down by the Hon’ble Supreme Court in Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217,
therefore, the discrepancy in the statements of prosecution
witnesses about the time cannot be used to discard their
testimonies.
35. The contradiction regarding the presence of light is
no contradiction, as the witness was deposing about the
external light and not the internal light of the vehicle.
36. Similarly, contradiction regarding the number of
places where the police had stopped after leaving the police
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32
( 2025:HHC:27073 )
station and before apprehending the accused is also not
material because it is regarding a detail which can come with
time due to failure of memory.
.
37. Therefore, the learned Trial Court had rightly held
that the contradictions in the statements of prosecution
witnesses were not sufficient to discard them.
38. ASI Chander Mohan (PW14) stated that he handed
over the seal to HC Maan Singh after its use. HC Maan Singh
(PW12) stated that he had lost the seal somewhere, and he made
an entry No.8 (Ex.P3/PW12) to this effect. The entry
(Ex.P3/PW12) was recorded on 13.3.2024 and reads that the seal
was misplaced during the shifting in the year 2019, which could
not be located despite the best efforts. Ms. Madhurika Sekhon
Verma, learned counsel for the appellant was highly critical of
this entry and submitted that the seal was lost in the year 2019,
and the entry was made on 13.3.2024, the date of deposition.
The fact that the entry was made on 13.3.2024 shows that it was
recorded to cover the non-production of the seal before the
learned Trial Court and should not be encouraged. This criticism
is unjustified. Maan Singh(PW12) had no reason to search for
the seal before appearing in the Court to make a statement.
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33
( 2025:HHC:27073 )
Hence, he was justified in getting the entry recorded on the date
of the deposition regarding the misplacement of the seal.
39. It was submitted that the seal was not produced
.
before the learned Trial Court, and the same is fatal to the
prosecution’s case. This submission is not acceptable. It was
laid down by this Court in Fredrick George v. State of Himachal
Pradesh, 2002 SCC OnLine HP 73: 2002 Cri LJ 4600 that there is
observed at page 4614:
r to
no requirement to produce the seal before the Court. It was
“62. It is a fact that the seals used for sealing and re-
sealing the bulk case property and the samples have not
been produced at the trial. In Manjit Singh‘s case (2001
(2) Cri LJ (CCR) 74) (supra), while dealing with the effect
of non-production of the seal, this Court held as under:
“In the absence of any mandatory provision in the
law/Rules of procedure relating to sealing of thecase property, that the seal used in sealing the case
property must be produced at the trial, it cannot be
said that failure to produce such seal at the trial will
be fatal to the case of the prosecution. It will dependon the facts and circumstances of each case
whether, by non-production of the seal at the trial,
any doubt is raised about the safe custody of the
case property or not.”
63. In view of the above position in law and the
conclusion we have already arrived at hereinabove that
there is unchallenged and trustworthy evidence that the
case property was not tampered with at any stage, the
non-production of the seals used for sealing and re-
sealing of the bulk case property of the samples is also of
no help to the accused.”
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34
( 2025:HHC:27073 )
40. It was laid down by the Hon’ble Supreme Court in
Varinder Kumar Versus State of H.P. 2019 (3) SCALE 50 that
failure to produce the seal in the Court is not fatal. It was
.
observed:-
“6. We have considered the respective submissions.
PW10 is stated to have received secret information at
2.45 P.M. on 31.03.1995. He immediately reduced it into
writing and sent the same to PW8, Shri Jaipal Singh, Dy.
S.P., C.I.D., Shimla. At 3.05 P.M., PW7, Head ConstableSurender Kumar, stopped PW5, Naresh Kumar and
another independent witness, Jeevan Kumar, travelling
together, whereafter the appellant was apprehended at
3.30 P.M. with two Gunny Bags on his Scooter, whichcontained varying quantities of ‘charas’. PW8, Shri Jaipal
Singh, Dy.S.P., C.I.D., Shimla, who had arrived by then,
gave notice to the appellant and obtained his consent for
carrying out the search. Two samples of 25 gms. Each
was taken from the two Gunny Bags and sealed with theseals ‘S’ and given to PW5. PW2, Jaswinder Singh, the
Malkhana Head Constable, resealed it with the seal ‘P’.
The conclusion of the Trial Court that the seal had notbeen produced in the Court is, therefore, perverse in view
of the two specimen seal impressions having beenmarked as Exhibits PH and PK. It is not the case of the
appellant that the seals were found tampered with in anymanner.”
41. It was specifically held in Varinder Kumar (supra)
that when the sample seals were produced before the Court, the
conclusion of the Trial Court that the seals were produced
before the Court was perverse.
42. In the present case, seal impressions were obtained
on the NCB-I form (Ex.P2/PW5). Sample seal ‘K’ (Ex.P2/PW12)
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35
( 2025:HHC:27073 )
and sample seal ‘X’ (P3/PW15) were taken on separate pieces of
clothes. These seal impressions were available on record. The
learned Trial Court had a specimen seal impression on the
.
pieces of clothes and NCB-I form to compare the seal
impression on the parcel. Therefore, non-production of the
seals before the learned Trial Court is not material and cannot
be used to discard the prosecution’s case.
43.
Ms. Madhurika Sekhon Verma, learned counsel for
the accused referred to the entry in the malkhana register
(Ex.P4/PW5) in which an entry number 3 of sample seal ‘K’ and
‘X’ was made to submit that the statement of Maan Singh
regarding loss of seal is incorrect because sample seal was
deposited in the malkhana. This submission is not correct. The
entry is regarding the sample seal and not the original seal.
Sample seals were taken on the spot, on separate pieces of
clothes, and their deposit in the malkhana does not mean that
no seal was handed over to HC Maan Singh, as deposed by him
and SI Chander Mohan. This submission conflates the sample
seal and the seal, and is not acceptable.
44. The learned Trial Court found the testimonies of the
prosecution witnesses credible. It was laid down by the Hon’ble
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36
( 2025:HHC:27073 )
Supreme Court in Goverdhan (supra) that the Appellate Court
should not interfere with the findings regarding the credibility
of the witnesses recorded by the learned Trial Court unless
.
there is some illegality in it. It was observed: –
“83. The trial court, after recording the testimony of the
PW-10, and on consideration of the same, found her
evidence trustworthy and credible. We see no reason to
question the assessment about the credibility of the
witness by the Trial Court, which had the advantage ofseeing and hearing the witness and all other witnesses.
Nothing has been brought to our notice of any serious
illegality or breach of fundamental law to warranttaking a different view of the evidence of PW-10.
In this regard, we may keep in mind the valuable
observations made by this Court in Jagdish
Singh v. Madhuri Devi, (2008) 10 SCC 497, in the
following words:
“28. At the same time, however, the appellate
court is expected, nay bound, to bear in mind a
finding recorded by the trial court on oral evidence.
It should not forget that the trial court had an
advantage and opportunity of seeing the
demeanour of witnesses and, hence, the trial
court’s conclusions should not normally bedisturbed. No doubt, the appellate court possesses
the same powers as the original court, but they
have to be exercised with proper care, caution and
circumspection. When a finding of fact has been
recorded by the trial court mainly on appreciation
of oral evidence, it should not be lightly disturbed
unless the approach of the trial court in the
appraisal of evidence is erroneous, contrary to
well-established principles of law or unreasonable.
29. …………………………………..
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37
( 2025:HHC:27073 )
30. In Sara Veeraswami v. Talluri Narayya [(1947-
48) 75 IA 252: AIR 1949 PC 32] the Judicial
Committee of the Privy Council, after referring to
relevant decisions on the point, stated [ Quoting
from Watt v. Thomas, [1947] 1 All ER 582, pp. 583.
H-584 A.]: (IA p. 255)
“… but if the evidence as a whole can
reasonably be regarded as justifying the
conclusion arrived at at the trial, and
especially if that conclusion has been arrived
at on conflicting testimony by a tribunal
which saw and heard the witnesses, the
appellate court will bear in mind that it has
not enjoyed this opportunity and that the view
of the trial Judge as to where credibility lies is
entitled to great weight. This is not to say that
the Judge of the first instance can be treated as
infallible in determining which side is telling
the truth or is refraining from exaggeration.
Like other tribunals, he may go wrong on a
question of fact, but it is a cogent
circumstance that a Judge of first instance,
when estimating the value of verbal
testimony, has the advantage (which is denied
to courts of appeal) of having the witnesses
before him and observing how their evidence
is given.”
45. Nothing was shown in the cross-examination of the
prosecution’s witnesses to shake their credibility, and the
finding of the learned Trial Court regarding the credibility of the
witnesses is to be accepted as correct.
46. Learned Trial Court held that the testimonies of the
police officials cannot be discarded simply because they
happened to be police officials. The presumption that an official
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38
( 2025:HHC:27073 )
act is done regularly applies to the acts done by police officials
as well. It was laid down by this Court in Budh Ram Versus State
of H.P. 2020 Cri.L.J.4254 that the testimonies of the police
.
officials cannot be discarded on the ground that they belong to
the police force. It was observed:
“11. It is a settled proposition of law that the sole
testimony of the police official, which if otherwise is
reliable, trustworthy, cogent and duly corroborated byother admissible evidence, cannot be discarded only on
the ground that he is a police official and may be
interested in the success of the case. There is also no
rule of law which lays down that no conviction can berecorded on the testimony of a police officer, even if
such evidence is otherwise trustworthy. The rule of
prudence may require more careful scrutiny of their
evidence. Wherever the evidence of a police officer, after
careful scrutiny, inspires confidence and is found to betrustworthy and reliable, it can form the basis of
conviction, and the absence of some independent
witness of the locality does not in any way affect thecreditworthiness of the prosecution case. No infirmity
attaches to the testimony of the police officers merelybecause they belong to the police force.”
47. Similar is the judgment in Karamjit Singh versus
State, AIR 2003 S.C. 3011, wherein it was held:
“The testimony of police personnel should be treated in
the same manner as the testimony of any other witness,
and there is no principle of law that, without
corroboration by independent witnesses, their testimony
cannot be relied upon. The presumption that a person
acts honestly applies, as much in favour of police
personnel as of other persons, and it is not a proper
judicial approach to distrust and suspect them without::: Downloaded on – 12/08/2025 21:28:25 :::CIS
39
( 2025:HHC:27073 )good grounds. It will all depend upon the facts and
circumstances of each case, and no principle of general
application can be laid down.” (Emphasis supplied)
48. This position was reiterated in Sathyan v. State of
.
Kerala, 2023 SCC OnLine SC 986, wherein it was observed:
22. Conviction being based solely on the evidence of
police officials is no longer an issue on which the jury is
out. In other words, the law is well settled that if the
evidence of such a police officer is found to be reliable,
trustworthy, then basing the conviction thereuponcannot be questioned, and the same shall stand on firm
ground. This Court in Pramod Kumar v. State (Govt. of
NCT of Delhi) 2013 (6) SCC 588 after referring to State of
U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri)48], State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC
652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of
Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has
laid down recently in Kashmiri Lal v. State of
Haryana [(2013) 6 SCC 595: AIR 2013 SCW 3102] thatthere 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, thepublic at large shows their disinclination to come
forward to become witnesses. If the testimony of thepolice 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 evidenceof 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 police
Department of Police should be viewed with distrust.
This is also based on the principle that the quality of the
evidence weighs over the quantity of evidence.
23. Referring to State (Govt. of NCT of Delhi) v. Sunil
2001 (1) SCC 652, in Kulwinder Singh v. State of Punjab
(2015) 6 SCC 674, this court held that: —
“23. … That apart, the case of the prosecution
cannot be rejected solely on the ground that::: Downloaded on – 12/08/2025 21:28:25 :::CIS
40
( 2025:HHC:27073 )independent witnesses have not been examined
when, on the perusal of the evidence on record,
the Court finds that the case put forth by the
prosecution is trustworthy. When the evidence of
the official witnesses is trustworthy and credible,.
there is no reason not to rest the conviction on the
basis of their evidence.”
24. We must note that in the former it was observed: —
“21… At any rate, the court cannot start with the
presumption that the police records are
untrustworthy. As a proposition of law, the
presumption should be the other way around.
That official acts of the police have been regularly
performed is a wise principle of presumption and
recognised even by the legislature… If the court
has any good reason to suspect the truthfulness of
rsuch records of the police, the court couldcertainly take into account the fact that no other
independent person was present at the time of
recovery. But it is not a legally approvable
procedure to presume the police action asunreliable to start with, nor to jettison such action
merely for the reason that police did not collect
signatures of independent persons in thedocuments made contemporaneous with such
actions.”
25. Recently, this Court in Mohd. Naushad v. State (NCT
of Delhi) 2023 SCC OnLine 784 had observed that the
testimonies of police witnesses, as well as pointing out
memos, do not stand vitiated due to the absence of
independent witnesses.
26. It is clear from the above propositions of law, as
reproduced and referred to, that the testimonies of
official witnesses can nay be discarded simply because
independent witnesses were not examined. The
correctness or authenticity is only to be doubted on “any
good reason”, which, quite apparently, is missing from
the present case. No reason is forthcoming on behalf of
the Appellant to challenge the veracity of the
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41
( 2025:HHC:27073 )
testimonies of PW-1 and PW-2, which the courts below
have found absolutely to be inspiring in confidence.
Therefore, basing the conviction on the basis of
testimony of the police witnesses as undertaken by the
trial court and confirmed by the High Court vide the
.
impugned judgment, cannot be faulted with.”
49. It was submitted that the case property was not
produced before the learned Magistrate, which is violative of
the mandatory provisions of Section 52A of the NDPS Act. This
submission is not acceptable. It was laid down in Sandeep
Kumar Vs State of H.P., 2022 Law Suits (HP) 149 , that the
provisions of Section 52-A of the NDPS Act is not mandatory
and its non-compliance is not fatal to the prosecution case. It
was observed:-
“24. It has also been strenuously argued on behalf of the
appellants that the investigating agency had failed to
comply with the provisions of Section 52-A of the NDPSAct and thus cast a shadow of doubt on its story. The
contention raised on behalf of the appellants is that the
rules framed for investigations under the NDPS Act are
mandatory and have to be strictly followed. Neither therequired sample was taken on the spot, nor were the
samples preserved by complying with Section 52-A of
the Act. It has been argued that compliance with Section
52-A of the Act is mandatory…..
xxxxxx
27. The precedent relied upon on behalf of the appellants,
however, did not lay down the law that non-compliance
with Section 52-A of the Act is fatal to the prosecution’s
case under the NDPS Act. On the other hand, in State of
Punjab vs. Makhan Chand, 2004 (3) SCC 453 , the Hon’ble
Supreme Court, while dealing with the question of the::: Downloaded on – 12/08/2025 21:28:25 :::CIS
42
( 2025:HHC:27073 )effect of non-compliance of Section 52-A, has held as
under: –
10. This contention, too, has no substance for two
reasons. Firstly, Section 52A, as the marginal note
indicates, deals with the “disposal of seized.
narcotic drugs and psychotropic substances”.
Under Sub-section (1), the Central Government, by
notification in the Official Gazette, is empowered to
specify certain narcotic drugs or psychotropic
substances having regard to the hazardous nature,
vulnerability to theft, substitution, constraints of
proper storage space and such other relevant
considerations, so that even if they are material
objects seized in a criminal case, they could be
disposed of after following the procedure
prescribed in Sub-sections (2) & (3). If the
procedure prescribed in Sub-sections (2) & (3) of
Section 52A is complied with and upon an
application, the Magistrate issues the certificate
contemplated by Subsection (2), then Sub-section
(4) provides that, notwithstanding anything to the
contrary contained in the Indian Evidence Act, 1872
or the Code of Criminal Procedure, 1973, such
inventory, photographs of narcotic drugs or
substances and any list of samples drawn under
Sub-section (2) of Section 52A as certified by the
Magistrate, would be treated as primary evidence in
respect of the offence. Therefore, Section 52A(1)
does not empower the Central Government to lay
down the procedure for the search of an accused but
only deals with the disposal of seized narcotic drugs
and psychotropic substances.
11. Secondly, when the very same standing orders
came up for consideration in Khet Singh v. Union of
India, 2002 (4) SCC 380, this Court took the view
that they are merely intended to guide the officers
to see that a fair procedure is adopted by the
Officer-in-Charge of the investigation. It was also
held that they were not inexorable rules, as there
could be circumstances in which it may not be
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43
( 2025:HHC:27073 )
possible for the seizing officer to prepare the
mahazar at the spot if it is a chance recovery, where
the officer may not have the facility to prepare the
seizure mahazar at the spot itself. Hence, we do not
find any substance in this contention.”
.
50. Therefore, the prosecution’s case cannot be
discarded due to the non-compliance with the provisions of
Section 52A of the NDPS Act.
51. The case property was sent to SFSL, Junga and the
report (Ex.P8/PW14) was issued stating that the parcel had six
seals of seal ‘K’ and three seals of seal ‘X’. The seals were found
intact and were tallied with the specimen seals signed by the
forwarding authority and the seal impression on the NCB-I
form. This report establishes the integrity of the case property.
It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, that
where the report of analysis shows that the seals were intact,
the case of prosecution that the case property remained intact is
to be accepted as correct. It was observed:
“A perusal of the report of the expert Ex.PW8/A shows
that the samples were received by the expert in a safe
manner, and the sample seal was separately sent, tallied
with the specimen impression of a seal taken separately.
Thus, there was no tampering with the seal, and the seal
impressions were separately taken and sent to the expert
also.”
52. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
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44
( 2025:HHC:27073 )
“It has also come to evidence that to date, the parcels of
the sample were received by the Chemical Examiner, and
the seal put on the said parcels was intact. That itself
proves and establishes that there was no tampering with
the previously mentioned seal in the sample at any stage,.
and the sample received by the analyst for chemical
examination contained the same opium, which was
recovered from the possession of the appellant. In that
view of the matter, a delay of about 40 days in sendingthe samples did not and could not have caused any
prejudice to the appellant.”
53. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC
402, the High Court had concluded that there could have been
tampering with the case property since there was a delay of
seven days in sending the report to FSL. It was laid down by the
Hon’ble Supreme Court that the case property was produced in
the Court, and there was no evidence of tampering. Seals were
found to be intact, which would rule out the possibility of
tampering. It was observed:
“The prosecution has been able to establish and prove
that the aforesaid bags, which were 35 in number,contained poppy husk, and accordingly, the same were
seized after taking samples therefrom, which were
properly sealed. The defence has not been able to prove
that the aforesaid seizure and seal put in the samples
were in any manner tampered with before it was
examined by the Chemical Examiner. There was merely a
delay of about seven days in sending the samples to the
Forensic Examiner, and it is not proved as to how the
aforesaid delay of seven days has affected the said
examination, when it could not be proved that the seal of
the sample was in any manner tampered with. The seal
having been found intact at the time of the examination::: Downloaded on – 12/08/2025 21:28:25 :::CIS
45
( 2025:HHC:27073 )by the Chemical Examiner and the said fact having been
recorded in his report, a mere observation by the High
Court that the case property might have been tampered
with, in our opinion, is based on surmises and
conjectures and cannot take the place of proof.
.
17. We may at this stage refer to a decision of this Court
in Hardip Singh v. State of Punjab reported in (2008) 8
SCC 557 in which there was a delay of about 40 days insending the sample to the laboratory after the same was
seized. In the said decision, it was held that in view of
cogent and reliable evidence that the opium was seized
and sealed and that the samples were intact till they werehanded over to the Chemical Examiner, the delay itself
was held to be not fatal to the prosecution case. In our
considered opinion, the ratio of the aforesaid decision
squarely applies to the facts of the present case in thisregard.
18. The case property was produced in the Court, and
there is no evidence to show that the same was ever
tampered with.”
54. Similar is the judgment of the Hon’ble Supreme
Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563 ,
wherein it was held: –
“10. According to learned senior counsel for the
appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO(PW-3), handed over the case property for producing the
same before the Illaqa Magistrate and who returned the
same to him after such production was not examined, as
such, the link evidence was incomplete. In this regard, it
is to be noticed that Yogi Raj, SHO, handed over the case
property to Joginder Singh, ASI, for production before
the Court. After producing the case property before the
Court, he returned the case property to Yogi Raj, SHO
(PW-3), with the seals intact. It is also to be noticed that
Joginder Singh, ASI, was not in possession of the seals of
either the investigating officer or Yogi Raj, SHO. He
produced the case property before the Court on::: Downloaded on – 12/08/2025 21:28:25 :::CIS
46
( 2025:HHC:27073 )13.09.1996 vide application Ex.P-13. The concerned
Judicial Magistrate of First Class, after verifying the seals
on the case property, passed the order Ex.P-14 to the
effect that since there was no judicial malkhana at
Abohar, the case property was ordered to be kept in safe.
custody, in Police Station Khuian Sarwar, till further
orders. Since Joginder Singh, ASI, was not in possession
of the seals of either the SHO or the Investigating Officer,
the question of tampering with the case property by himdid not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate,with the seals intact, to Yogi Raj, SHO. In that view of the
matter, the Trial Court and the High Court have rightly
held that the non-examination of Joginder Singh did not,
in any way, affect the case of the prosecution. Further, itis evident from the report of the Chemical Examiner,
Ex.P-10, that the sample was received with seals intact
and that the seals on the sample tallied with the sample
seals. In that view of the matter, the chain of evidence
was complete.” (Emphasis supplied)
55. Therefore, the submission that the integrity of the
case property has not been established cannot be accepted.
56. The result of the analysis shows that the exhibit
stated as ‘heroine’ was a sample of Diacetylmorphine
(‘heroin’). Since the integrity of the case property from the time
of recovery till analysis has been proved, therefore, it was duly
established on record that the accused was found in possession
of 23 grams of ‘Heroin’, and there is no infirmity in the
judgment passed by the learned Trial Court convicting the
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47
( 2025:HHC:27073 )
accused for the commission of an offence punishable under
Section 21(b) of N.D.& P.S. Act.
57. The learned Trial Court sentenced the accused to
.
undergo rigorous imprisonment for four years and pay a fine of
₹25,000/-, and in default of payment of fine to undergo further
simple imprisonment for one year. The Central Government has
notified the commercial quantity of ‘heroin’ as 250 grms, which
means that a person possessing 250 grams of ‘heroin’ can be
sentenced to 10 years’ imprisonment. It was laid down by the
Hon’ble Supreme Court in Uggarsain v. State of Haryana, (2023)
8 SCC 109: 2023 SCC OnLine SC 755 that the Courts have to apply
the principle of proportionality while imposing sentence. It was
observed at page 113:
10. This Court has, time and again, stated that the
principle of proportionality should guide the sentencing
process. In Ahmed Hussein Vali Mohammed
Saiyed v. State of Gujarat [Ahmed Hussein ValiMohammed Saiyed v. State of Gujarat, (2009) 7 SCC
254 : (2009) 3 SCC (Cri) 368 : (2009) 8 SCR 719] it was
held that the sentence should “deter the criminal from
achieving the avowed object to (sic break the) law, ” and
the endeavour should be to impose an ” appropriate
sentence.” The Court also held that imposing “meagre
sentences” merely on account of lapse of time would be
counterproductive. Likewise, in Jameel v. State of
U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1
SCC (Cri) 582 : (2009) 15 SCR 712] while advocating that
sentencing should be fact dependent exercises, the
Court also emphasised that : ( Jameel::: Downloaded on – 12/08/2025 21:28:25 :::CIS
48
( 2025:HHC:27073 )case [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1
SCC (Cri) 582 : (2009) 15 SCR 712], SCC p. 535, para 15)
“15. … the law should adopt the corrective
machinery or deterrence based on a factual
matrix. By deft modulation, the sentencing.
process is stern where it should be, and
tempered with mercy where it warrants to be.
The facts and given circumstances in each case,
the nature of the crime, the manner in which it
was planned and committed, the motive for
commission of the crime, the conduct of the
accused, the nature of weapons used and all
other attending circumstances are relevant
facts which would enter into the area of
consideration.”(emphasis supplied)
11. Again, in Guru Basavaraj v. State of Karnataka [Guru
Basavaraj v. State of Karnataka, (2012) 8 SCC 734: (2012)
4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 : (2012) 8 SCR
189] the Court stressed that: (SCC p. 744, para 33)
“33. … It is the duty of the court to see that an
appropriate sentence is imposed, regard being
had to the commission of the crime and its
impact on the social order” (emphasis supplied)
and that sentencing includes ” adequate punishment”.
In B.G. Goswami v. Delhi Admn. [B.G. Goswami v. Delhi
Admn., (1974) 3 SCC 85: 1973 SCC (Cri) 796 : (1974) 1
SCR 222], the Court considered the issue of punishment
and observed that punishment is designed to protect
society by deterring potential offenders as well as
prevent the guilty party from repeating the offence; it is
also designed to reform the offender and reclaim him as
a law-abiding citizen for the good of the society as a
whole. Reformatory, deterrent and punitive aspects of
punishment thus play their due part in judicial thinking
while determining the question of awarding appropriate
sentences.
12. In Sham Sunder v. Puran [Sham Sunder v. Puran,
(1990) 4 SCC 731: 1991 SCC (Cri) 38: 1990 Supp (1) SCR
662], the appellant-accused was convicted under
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49
( 2025:HHC:27073 )
Section 304 Part I IPC. The appellate court reduced the
sentence to the term of imprisonment already
undergone, i.e. six months. However, it enhanced the
fine. This Court ruled that the sentence awarded was
inadequate. Proceeding further, it opined that : (SCC p.
.
737, para 8)
“8. … The court, in fixing the punishment for any
particular crime, should take into consideration
the nature of the offence, the circumstances in
which it was committed, and the degree of
deliberation shown by the offender. The measure
of punishment should be proportionate to the
gravity of the offence. The sentence imposed by
the High Court appears to be so grossly and
entirely inadequate as to involve a failure of
justice. We are of the opinion that to meet the ends
of justice, the sentence has to be enhanced.”
(emphasis supplied)
This Court enhanced the sentence to one of rigorous
imprisonment for a period of five years. This Court has
emphasised, in that sentencing depends on the facts,
and the adequacy is determined by factors such as ” the
nature of crime, the manner in which it is committed,
the propensity shown and the brutality reflected ”
[Ravada Sasikala v. State of A.P. [Ravada
Sasikala v. State of A.P., (2017) 4 SCC 546: (2017) 2 SCC
(Cri) 436: (2017) 2 SCR 379]]. Other decisions, like: State
of M.P. v. Bablu [State of M.P. v. Bablu, (2014) 9 SCC 281 :
(2014) 6 SCC (Cri) 1 : (2014) 9 SCR 467]; Hazara
Singh v. Raj Kumar [Hazara Singh v. Raj Kumar, (2013) 9
SCC 516 : (2014) 1 SCC (Cri) 159 : (2013) 5 SCR 979]
and State of Punjab v. Saurabh Bakshi [State of
Punjab v. Saurabh Bakshi, (2015) 5 SCC 182 : (2015) 2
SCC (Cri) 751 : (2015) 3 SCR 590] too, have stressed on
the significance and importance of imposing
appropriate, “adequate” or “proportionate”
punishments.
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( 2025:HHC:27073 )
58. Learned Trial Court held that the sentence has to be
imposed after considering the nature of the offence and the
manner in which it was committed. The legislature has already
.
considered these factors while providing a punishment of 10
years to a person in possession of 250 grams of ‘heroin’. No
reason for deviation from the principle of proportionality was
given by the learned Trial Court. Hence, applying the principle
of proportionality, the sentence of four years cannot be
justified.
59. The accused was taken into custody on 24.4.2024,
and he has already undergone more than one year of sentence,
which is more than sufficient after applying the principle of
proportionality. Therefore, he is ordered to undergo sentence
for the period already undergone by him and pay a fine of
₹10,000/-, and in default of payment of fine, to further undergo
imprisonment for three months for the commission of an
offence punishable under Section 21(b) of the ‘N.D& P.S Act’.
60. In view of the above, the present appeal is partly
allowed and the appellant/accused is sentenced to undergo
imprisonment for the period already undergone by him and to
pay a fine of ₹10,000/- and in default of payment of fine to
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51
( 2025:HHC:27073 )
further undergo simple imprisonment for three months for the
commission of an offence punishable under Section 21(b) of
‘N.D & P.S Act’. Subject to this modification, the rest of the
.
judgment passed by the learned Trial Court is upheld.
61. The modified warrants be prepared accordingly.
62. Records of the learned Trial Court be sent back
forthwith, along with a copy of this judgment.
12 August 2025.
r to (Rakesh Kainthla)
Judge
(yogesh)
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