Himachal Pradesh High Court
State Of Himachal Pradesh vs To on 26 August, 2025
1
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 492 of 2024
.
Reserved on: 11.08.2025
Decided on: 26.08.2025
Sunder Singh ....... A1ppellant
State of Himachal Pradesh
r Versus
to ......Respondent.
Coram
The Hon’ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Appellant: Mr. Vaibhav Kanwar, Advocate.
For the Respondent: Mr. Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
of conviction and order of sentence dated 30.07.2024 passed by
learned Special Judge-II, Solan, District Solan (learned Trial
1
Whether the reporters of the local papers may be allowed to see the Judgment?yes
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Court) vide which the appellant/accused before the learned Trial
Court was convicted and sentenced as under: –
.
Sr. Offence Substantive Fine In default of
No. for which sentence imposed payment of
punished imposed fine, Simple
Imprisonment
imposed
1. Section Rigorous ₹25,000/- Simple
20 of the imprisonment imprisonment
N.D& P.S for a period of for a period of
Act 5 years 6 months
2.
Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the
accused before the learned Trial Court for the commission of an
offence punishable under Section 20 of the Narcotic Drugs &
Psychotropic Substances Act (N.D & P.S). It was asserted that
Inspector Ravinder Kumar (PW8), HHC Balbir Singh (PW1), and
Constable Naveen Kumar (PW2) had gone towards Oachhghat-
Nauni, etc. on 04.12.2018. An entry No. 72 (Ex. P1/PW9) was
recorded regarding their departure. They had set up a ‘naka’
near Kothi village at Solan-Oachhghat road. The accused came
towards the police party at 10:40 P.M. He returned after seeing
the police. The police apprehended the accused. The police
suspected that the accused might be in possession of some
stolen property. The police signalled the drivers of the vehicles
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( 2025:HHC:28724 )to stop and requested them to become witnesses. However,
none agreed. No independent witnesses could be associated
with the vicinity because it was night. The police inquired about
.
the name of the accused, and he revealed his name as Sunder
Singh. He had a carry bag (Ex. MO2) bearing the words
“Shubham footwear”. The police checked the carry bag and
found a transparent polythene bag (Ex. MO3) containing black
sticks. The police checked the sticks and found them to be
‘charas’ (Ex. MO4). The police requisitioned the weighing
machine and weighed the ‘charas’. The weight of charas was
found to be 345 grams. ‘Charas’ was put in the polythene bag,
and the polythene bag was put in the carry bag in the same
manner in which they were recovered. The carry bag was put in
a cloth parcel, and the parcel was sealed with five impressions
of seal ‘C’. Seal impression (Ex. P1/PW1) was taken on a
separate piece of cloth. NCB-I form (Ex. P3/PW6) was filled in
triplicate. The seal impression was put on the form, and the
seal was handed over to Balbir Singh after its use. Parcel,
sample seal and NCB-I form were seized vide memo
(Ex.P2/PW1). Rukka (Ex. P1/PW8) was prepared and sent to the
police station, where F.I.R. (Ex. P2/PW8) was registered. HC
Kuldeep Kumar (PW9) conducted the investigation. He visited
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( 2025:HHC:28724 )the spot. SI Ravinder handed over the documents and custody of
the accused to Kuldeep Kumar. He prepared the spot map
(Ex.P3/PW8) and recorded the statements of the witnesses as
.
per their version. Ravinder Kumar deposited the sealed parcel,
sample seal and NCB-I form with Kanshi Ram (PW6), who
made an entry at Sr. No.1171/2018 (Ex.P1/PW6) and deposited it
in the malkhana. Kuldeep Kumar obtained the case property
from Kanshi Ram and produced it before the learned Judicial
Magistrate First Class, Solan, for certification of the inventory
(Ex. P4/PW8). The Court certified the inventory, issued the
certificate (Ex. P6/PW8), and passed an order (Ex.P7/PW8). The
parcel was sealed with the Court seal. The sample seal
(Ex.P8/PW8) was taken on a separate piece of cloth. Kuldeep
Kumar deposited the parcel, sample seal, NCB-I form, Court
seal, etc., with Kanshi Ram (PW6), who deposited it in the
malkhana. He sent the case property with sample seals, NCB-I
form and documents to the State Forensic Science Laboratory
(SFSL), Junga, through HHC Manjit Singh (PW4) vide
R.C.No.283/18-19 (Ex.P2/PW6). Manjit Singh deposited all the
articles at SFSL, Junga and handed over the receipt to the MHC
on his return. Kuldeep Kumar prepared the special report
(Ex.P1/PW5) and handed it over to Additional Superintendent of
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( 2025:HHC:28724 )Police, Shiv Kumar. Addl. Superintendent of Police, Shiv Kumar
made an endorsement on the special report and handed it over
to his Reader, ASI Rakesh Kumar (PW5), who made an entry in
.
the register (Ex. P2/PW5) and retained the special report on
record. The result of the analysis (Ex.P9/PW8) was issued, in
which it was shown that the exhibit stated to be an extract of
cannabis was a sample of ‘charas’. The statements of witnesses
were recorded as per their version. After the completion of the
investigation, a challan was prepared and presented before the
learned Trial Court.
3. Learned Trial Court charged the accused for the
commission of an offence punishable under Section 20 of N.D &
P.S Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined nine witnesses to prove
its case. Balbir Singh (PW1) and Constable Naveen Kumar (PW2)
are the official witnesses to the recovery. HHC Madan Kishore
(PW3) carried the weighing machine from the police station to
the spot. HHC Manjit Singh (PW4) carried the case property to
SFSL, Junga. ASI Rakesh Kumar (PW5) was posted as a Reader to
Addl. Superintendent of Police, Solan, to whom the special
report was handed over. Kanshi Ram (PW6) was the malkhana
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in charge to whom the case property was handed over.
Constable Kuldeep (PW7) brought the case property and the
result of analysis from SFSL, Junga. Inspector Ravinder Kumar
.
(PW8) effected the initial recovery. ASI Kuldeep Kumar (PW9)
conducted the investigation.
5. The accused, in his statement recorded under
Section 313 of Cr. P.C. denied the prosecution’s case in its
entirety. He stated that a false case was made against him. The
witnesses were interested. He was innocent. However, he did
not produce any defence.
6. Learned Trial Court held that the testimonies of
prosecution witnesses corroborated each other on material
particulars. The integrity of the case property was established.
The provisions of Sections 42 and 50 of N.D. & P.S. Act did not
apply to the present case. The testimonies of police officials
could not be disbelieved because they happened to be the police
officials. Non-supply of the copy of the seizure memo to the
accused was not material. Non-production of the seal did not
make the prosecution’s case suspect. The minor discrepancies
in the statements were not sufficient to discard the
prosecution’s case. The integrity of the case property was duly
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established. Hence, the accused was convicted and sentenced as
aforesaid.
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 misconstrued
and misinterpreted. The place of the incident was not identified
by any person. The recovery from the conscious possession of
the accused was not proved. There were variations in the
statements of witnesses recorded by the police and by the Court.
The report of SFSL, Junga, was not admissible under the law.
Seal was not produced before the Court, and the prosecution’s
case was made suspect by the non-production of the seal.
Hence, 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 Mr. Vaibhav Kanwar, learned counsel
for the appellant/accused, and Mr. Prashant Sen, learned
Deputy Advocate General for the respondent-State.
9. Mr. Vaibhav Kanwar, learned counsel for the
appellant/accused, submitted that there are various
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discrepancies in the statements of the official witnesses. The
police did not associate any independent witness despite the
opportunity and availability. The statements of prosecution
.
witnesses that police signalled the drivers of vehicles to stop,
but nobody stopped, are inherently improbable. The seal was
not produced before the Court, and the integrity of the case
property was doubtful. Therefore, he prayed that the present
appeal be allowed and the judgment and order passed by the
learned Trial Court be set aside.
10. Mr. Prashant Sen, learned Deputy Advocate General
for the respondent-State, submitted that the seals were found
intact in the laboratory, showing that there was no tampering.
The incident had taken place during the night, and the
explanation furnished by the police that it was not possible to
associate any independent witness during the night is plausible.
The accused did not assign any reason for his false implication.
Therefore, he prayed that the present appeal be dismissed.
11. I have given considerable thought to the
submissions made at the bar and have gone through the records
carefully.
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12. Balbir Singh (PW1) stated that he, constable Pawan
Kumar and Inspector Ravinder Kumar were on patrolling duty.
He did not mention the name of Constable Naveen Kumar. It
.
was submitted that the testimony of Constable Balbir Singh will
make the presence of Constable Naveen Kumar suspect. This
submission cannot be accepted. Entry in the daily diary No.72
(Ex. P1/PW9) reads that Inspector/S.H.O. Ravinder Kumar, HHC
Balbir Singh and Constable Naveen Kumar proceeded for
‘nakabandi’ towards Oachhghat-Nauni etc. This was the first
document prepared by the police when the police were not even
aware of the fact that any ‘charas’ would be recovered. Hence,
the authenticity of this document cannot be doubted. Learned
Trial Court had rightly pointed out that the incident had taken
place on 04.12.2018 and the witnesses deposed in the year 2023-
2024. Therefore, minor contradictions were bound to exist and
cannot be used to discard the prosecution’s case. In the present
case, also, the omission to mention Naveen Kumar when the
documents and statements of other witnesses show him to be a
member of the police party will not show that he was not
present on the spot.
13. Balbir Singh (PW1) stated that the Inspector stopped
the vehicles passing through the spot to associate independent
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witness, but nobody agreed. Constable Naveen Kumar (PW2)
also made a similar statement. Inspector Ravinder Kumar
(PW8), on the other hand, stated that he tried to associate an
.
independent witness but could not find any. It was submitted
that this is a major contradiction, which will show that the
police did not make any serious efforts to associate independent
witnesses. This submission cannot be accepted. There is no real
contradiction in the statements of the prosecution witnesses.
The statements of Balbir Singh (PW1) and Constable Naveen
Kumar (PW2) show that the Inspector tried to associate an
independent witness, but no one agreed. Inspector Ravinder
Kumar also stated that he tried to associate an independent
witness, but no independent witness could be found. The refusal
to join the investigation also means that the police were unable
to find any independent witness. Therefore, there are no real
contradictions in the statements of official witnesses.
14. It was submitted that failure to join an independent
witness is fatal to the prosecution’s case. This submission
cannot be accepted. The statements of prosecution witnesses
show that the police were on patrolling duty. They saw the
accused coming from Oachhghat towards Solan. The accused
got perplexed after seeing the police and tried to return. The
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police apprehended him based on suspicion. There is nothing in
the cross-examination of the police officials to show that the
police had any prior information. Hence, it was a case of chance
.
recovery.
15. The term chance recovery was explained by the
Hon’ble Supreme Court in 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. It was observed at page 784:
“13. The expression “chance recovery” has not been
defined anywhere, and its plain and simple meaning
seems to be a recovery made by chance or by accident orunexpectedly. In Mohinder Kumar v. State [(1998) 8 SCC
655: 1999 SCC (Cri) 79], this Court considered a chancerecovery as one when a police officer “stumbles on”
narcotic drugs when he makes a search. In Sorabkhan
Gandhkhan Pathan v. State of Gujarat [(2004) 13 SCC
608: (2006) 1 SCC (Cri) 508], the police officer, while
searching for illicit liquor, accidentally found some
charas. This was treated as a “chance recovery”.
14. Applying this to the facts of the present appeal, it is
clear that the police officers were looking for passengers
who were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried
by a passenger. This can only be described as a recovery
by chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.
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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.
16.
In the present case, the police had no prior
information about the accused carrying the ‘charas’. They
became suspicious of the conduct of the accused, and the
present case will fall within the meaning of chance recovery.
17. 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
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( 2025:HHC:28724 )against the prosecution is otherwise offered. This
comment is not of any value since the police party was on
patrolling duty, and they were not required to take along
independent witnesses to support recovery if and when
made. It has come to the evidence of ASI Jangir Singh that.
after the recovery had been effected, some people had
passed by. Even so, obtaining their counter-signatures
on the documents already prepared would not have lent
any further credence to the prosecution’s version.”
18. In similar circumstances, it was laid down by this
Court in Chet Ram Vs State, Criminal Appeal no. 151/2006,
decided on 25.7.2018, that when the accused was apprehended
after he tried to flee on seeing the police, there was no necessity
to associate any person from the nearby village. It was
observed: –
“(A)appellant was intercepted, and 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 reasonto 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 Charaswas recovered. After the recovery of Charas, there was
hardly any need to associate any person from the nearby
village because there remained nothing left 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
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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)
19.
It was laid down by the Hon’ble Supreme Court of
India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557:
(2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-
association of the independent witnesses will not be fatal to the
prosecution case. However, the Court will have to scrutinise the
statements of prosecution witnesses carefully. It was observed
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.”
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20. 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 observed andheld by this Court in a catena of decisions, examination
of independent witnesses is not an indispensable
requirement, and such non-examination is not
necessarily fatal to the prosecution case [see 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 asunder: (SCC p. 568)
“15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab,(2011) 3 SCC 521: (2011) 1 SCC (Cri) 1191] ,
relied on by the counsel for the respondentState, also supports the case of the
prosecution. In the aforesaid judgment, thisCourt has held that merely because the
prosecution did not examine any
independent witness would not necessarily
lead to a conclusion that the accused was
falsely implicated. The evidence of official
witnesses cannot be distrusted and
disbelieved merely on account of their
official status.
16. In State (NCT of Delhi) v. Sunil [State
(NCT of Delhi) v. Sunil, (2001) 1 SCC 652:
2001 SCC (Cri) 248], it was held as under:
(SCC p. 655)
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( 2025:HHC:28724 )‘It is an archaic notion that actions of
the police officer should be approached
with initial distrust. It is time now to
start placing at least initial trust in the
actions and the documents made by.
the police. At any rate, the court
cannot start with the presumption that
the police records are untrustworthy.
As a proposition of law, thepresumption should be 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.”
21. 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’s
case cannot be said to have been proved by it inaccordance with the provisions of the Act. Learned
defence counsel, in support of his contention, relied uponthe titled Krishan Chand versus State of H.P.,2017 4 CriCC
5313(iii)(d). It is by now well settled that a prosecution case
cannot be disbelieved only because the independent
witnesses were not associated.”
22. 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
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( 2025:HHC:28724 )courts, has also been dealt with by this Court in Surinder
Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC
563: (2020) 1 SCC (Cri) 767] holding that merely because
independent witnesses were not examined, the
conclusion could not be drawn that the accused was.
falsely implicated. Therefore, the said issue is also well
settled and in particular, looking at the facts of the
present case, when the conduct of the accused was found
suspicious, and a chance recovery from the vehicle usedby him is made from a public place and proved beyond a
reasonable doubt, the appellant cannot avail any benefit
on this issue. In our view, the concurrent findings of the
courts do not call for interference.”
23. 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 isnot 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 sameevidentiary value as the testimony of any other person.
The only difference is that the Court has to be most
circumspect while appreciating the evidence of the
official witnesses to rule out the possibility of false
implication of the accused, especially when such a plea is
specifically raised by the defence. Therefore, while
scrutinising the evidence of the official witnesses, in
cases where independent witnesses are not associated,
contradictions and inconsistencies in the testimonies of
such witnesses are required to be taken into account and
given due weightage unless satisfactorily explained.
However, the contradiction must be 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,
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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 the police partyhad laid the ‘nakka’ and immediately
thereafter had spotted the appellant at some
distance, who got perplexed and started
walking back. The conduct of the appellantwas sufficient to raise suspicion in the minds
of police officials. At that stage, had the
appellant not been apprehended
immediately, the police could have lost theopportunity to recover the contraband.
Looking from another angle, the relevance of
independent witnesses could be there when
such witnesses were immediately availableor 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. Thereason is that once the person is
apprehended and is with the police, a
subsequent association of independent
witnesses may not be of much help. In such
events, the manipulation, if any, cannot be
ruled out.”
Xxxx
22. A similar reiteration of law can be found in a very
recent judgment of the Coordinate Bench of this Court
in Cr. A. No. 202 of 2020, titled Dillo Begum v. State of
H.P., decided on 27.03.2024.”
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24. 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.
25. Balbir Singh (PW1) stated in his cross-examination
that they had parked their vehicle towards the right side while
going from Solan and saw the accused from a distance of 50-60
meters when they were standing outside the vehicle. Constable
Naveen Kumar (PW2) stated in his cross-examination that they
saw the accused from a distance of 40-50 meters when they
were standing outside the vehicle. The vehicle was parked
facing Solan on the left side while coming from Oachhghat.
Inspector Ravinder Kumar (PW8) stated in his cross-
examination that they were moving forward and not coming
towards the police station when they saw the accused. It was
submitted that, as per the site plan (Ex.P3/PW8), the accused
was coming from Oachhghat and the vehicle should have faced
Oachhghat and not Solan. The fact that the vehicle was parked
towards Solan makes the prosecution’s case suspect that the
police party saw the accused coming from the opposite side, and
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the accused ran away after seeing the police party. This
submission cannot be accepted. The witnesses deposed about
the parking of the vehicle and not about the direction of the
.
vehicle in which it was proceeding. It is permissible for a vehicle
to be parked towards the other side where the police intended to
go after ‘naka’. Hence, the mere fact that the vehicle was parked
towards Solan does not make the prosecution’s case suspect.
26.
Witnesses Balbir Singh (PW1) and Naveen Kiumar
(PW2) admitted in their cross-examination that there was no
street light at the place of the incident, and it was dark. It was
submitted based on this submission that it was not possible to
see the accused in the darkness or for the accused to see the
police. This submission cannot be accepted. There is no
evidence that it was pitch dark, and it was not possible to see
any person moving on the road. Hence, the prosecution’s case
cannot be doubted because the witnesses admitted that there
was darkness.
27. It was submitted that there was no compliance with
Section 50 of the N.D & P.S Act, and the accused was not given
any option to search before the Magistrate or the gazetted
officer. In the present case, the recovery was effected from the
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21
( 2025:HHC:28724 )
carry bag and not from the personal search of the accused. It
was laid down by the Hon’ble Supreme Court in State of Punjab
Versus Baljinder Singh & another, (2019) 10 SCC 473, that where
.
the recovery was effected from the bag, briefcase, etc., non-
compliance with Section 50 is not fatal. It was observed:
“14. The law is thus well settled that an illicit article
seized from the person during a personal search
conducted in violation of the safeguards provided inSection 50 of the Act cannot by itself be used as
admissible evidence of proof of unlawful possession of
contraband. But the question is, if there be any other
material or article recovered during the investigation,would the infraction with respect to personal search also
affect the qualitative value of the other material
circumstance?
15. At this stage, we may also consider the following
observations from the decision of this Court in Ajmer
Singh v. State of Haryana [(2010) 3 SCC 746] : (2010 AIR
SCW 1494, Para 16).]“15. The learned counsel for the appellant
contended that the provision of Section 50 of theAct would also apply while searching the bag,
briefcase, etc., carried by the person, and its non-
compliance would be fatal to the proceedingsinitiated under the Act. We find no merit in the
contention of the learned counsel. It requires to be
noticed that the question of compliance or non-
compliance with Section 50 of the NDPS Act is
relevant only where a search of a person is
involved, and the said section is not applicable or
attracted where no search of a person is involved.
Search and recovery from a bag, briefcase,
container, etc., do not come within the ambit of
Section 50 of the NDPS Act, because firstly,
Section 50 expressly speaks of the search of a::: Downloaded on – 26/08/2025 21:28:31 :::CIS
22
( 2025:HHC:28724 )person only. Secondly, the section speaks of
taking of the person to be searched by the
gazetted officer or a Magistrate for the purpose of
the search. Thirdly, this issue, in our considered
opinion, is no more res Integra in view of the.
observations made by this Court in Madan Lai v.
State of H.P. [(2003) 7 SCC 465] : (AIR 2003 SC
3642). The Court has observed: (SCC p. 471, para
16) (at p. 3645, para 17 of AIR)
“16. A bare reading of Section 50 shows that
it only applies in the case of a personal
search of a person. It does not extend to asearch of a vehicle or a container or a bag or
premises (see Kalema Tumba v. State of
Maharashtra[(1999) 8 SCC 257]: (AIR 2000
SC 402), State of Punjab v. Baldev Singh
r [(1999) 6 SCC 172] : (AIR 1999 SC 2378) andGurbax Singh v. State of Haryana [(2001) 3
SCC 28]): (AIR 2001 SC 1002) . The language
of Section 50 is implicitly clear that the
search has to be in relation to a person ascontrasted to a search of premises, vehicles
or articles. This position was settled beyond
doubt by the Constitution Bench inthe Baldev Singh case. Above being the
position, the contention regarding non-
compliance with Section 50 of the Act is also
without any substance.”
16. As regards the applicability of the requirements under
Section 50 of the Act is concerned, it is well settled that
the mandate of Section 50 of the Act is confined to
“personal search” and not to the search of a vehicle or a
container or premises.
17. The conclusion (3) as recorded by the Constitution
Bench in para 57 of its judgment in Baldev Singh (AIR
1999 SC 2378) clearly states that the conviction may not
be based “only” on the basis of possession of an illicit
article recovered from personal search in violation of the
requirements under Section 50 of the Act but if there be
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23
( 2025:HHC:28724 )
other evidence on record, such material can certainly be
looked into.
In the instant case, the personal search of the accused did
not result in the recovery of any contraband. Even if there
was any such recovery, the same could not be relied upon
.
for want of compliance of the requirements of Section 50
of the Act. But the search of the vehicle and recovery of
contraband pursuant thereto having stood proved,
merely because there was non-compliance of Section 50
of the Act as far as “personal search” was concerned, no
benefit can be extended so as to invalidate the effect of
recovery from the search of the vehicle. Any such idea
would be directly in the teeth of conclusion (3) as
aforesaid.
18. The decision of this Court in Dilip’s (AIR 2007 SC 369)
case, however, has not adverted to the distinction as
discussed herein above and proceeded to confer an
advantage upon the accused even in respect of recovery
from the vehicle, on the ground that the requirements of
Section 50 relating to personal search were not complied
with. In our view, the decision of this Court in said
judgment in Dilip’s case is not correct and is opposed to
the law laid down by this Court in Baldev Singh (AIR 1999
SC 2378) and other judgments.
19. Since in the present matter, seven bags of poppy husk,
each weighing 34 kgs. were found from the vehicle which
was being driven by accused Baljinder Singh with the
other accused accompanying him, their presence and
possession of the contraband material stood completely
established.”
28. This position was reiterated in Kallu Khan Vs State,
AIR 2022 SC 50, and it was observed:-
“15. Simultaneously, the arguments advanced by the
appellant regarding non-compliance with Section 50 of
the NDPS Act are bereft of any merit because no recovery
of contraband from the person of the accused has been
made, to which compliance with the provision of Section::: Downloaded on – 26/08/2025 21:28:31 :::CIS
24
( 2025:HHC:28724 )50 NDPS Act has to follow mandatorily. In the present
case, in the search for a motorcycle at a public place, the
seizure of contraband was made, as revealed. Therefore,
compliance with Section 50 does not apply in the present
case. It is settled in the case of Vijaysinh(supra) that in.
the case of the personal search only, the provisions of
Section 50 of the Act are required to be complied with but
not in the case of the vehicle as in the present case,
following the judgments of Surinder Kumar(supra) andBaljinder Singh(supra). Considering the facts of this
Court, the argument of non-compliance of Section 50 of
the NDPS Act advanced by the counsel is hereby
repelled.”
29. Similar is the judgment in Dayalu Kashyap versus
State of Chhattisgarh, 2022 (1) RCR(Cri) 815(SC) wherein it was
observed:-
“5. Learned counsel submits that the option given to the
appellant to take a third choice other than what isprescribed as the two choices under sub-Section (1) of
Section 50 of the Act is something which goes contrary to
the mandate of the law and in a way affects theprotection provided by the said Section to the accused. To
support his contention, he has relied upon the judgmentof the State of Rajasthan v. Parmanand & Anr., 2014 5
SCC 345, more specifically, para 19. The judgment, in
turn, relied upon a Constitution Bench judgment of thisCourt in State of Punjab v. Baldev Singh, 1999 6 SCC 172
to conclude that if a search is made by an empowered
Officer on prior information without informing the
person of his right that he has to be taken before a
Gazetted Officer or a Magistrate for search and in case he
so opts, failure to take his search accordingly would
render the recovery of the illicit article suspicious and
vitiate the conviction and sentence of the accused where
the conviction has been recorded only the on basis of
possession of illicit articles recovered from his person.
The third option stated to be given to the accused to get::: Downloaded on – 26/08/2025 21:28:31 :::CIS
25
( 2025:HHC:28724 )himself searched by the Officer concerned, not being part
of the statute, the same could not have been offered to
the appellant, and thus, the recovery from him is
vitiated.
6. In the conspectus of the facts of the case, we find the
.
recovery was in a polythene bag which was being carried
on a Kanwad. The recovery was not in person. Learned
counsel seeks to expand the scope of the observationsmade by seeking to contend that if the personal search is
vitiated by a violation of Section 50 of the NDPS Act, the
recovery made otherwise also would stand vitiated and
thus cannot be relied upon. We cannot give such anextended view as is sought to be contended by learned
counsel for the appellant.”
30. This judgment was followed in Ranjan Kumar
Chadha v. State of H.P., 2023 SCC OnLine SC 1262 : AIR 2023 SC
5164, and it was observed:
“126. As such, there is no direct conflict between SK.
Raju (supra) and Baljinder Singh (supra). It is pertinent
to note that in SK. Raju (supra), the contraband was
recovered from the bag which the accused was carrying,whereas in Baljinder Singh (supra), the contraband was
recovered from the vehicle. This makes a lot of differenceeven while applying the concept of any object being
“inextricably linked to the person”. Parmanand (supra)relied upon the judgment in Dilip (supra) while taking
the view that if both the person of the accused as well as
the bag are searched and the contraband is ultimately
recovered from the bag, then it is as good as the search of
a person and, therefore, Section 50 would be applicable.
However, it is pertinent to note that Dilip (supra) has not
taken into consideration Pawan Kumar (supra), which is
of a larger Bench. It is also pertinent to note that
although in Parmanand (supra) the Court looked
into Pawan Kumar (supra), yet ultimately it
followed Dilip (supra) and took the view that if the bag
carried by the accused is searched and his person is also::: Downloaded on – 26/08/2025 21:28:31 :::CIS
26
( 2025:HHC:28724 )searched, Section 50 of the NDPS Act will have
application. This is something travelling beyond what
has been stated by the large Bench in Pawan
Kumar (supra). Baljinder Singh (supra), on the other
hand, says that Dilip (supra) does not lay down good law.
.
127. In the facts of the present case, there is no scope for
applying the ratio of Parmanand (supra) and SK.
Raju (supra). At the cost of repetition, we may state thatin the case at hand, there is nothing to indicate that the
search of the person of the accused was also undertaken
along with the bag which he was carrying on his
shoulder.
128. We do not propose to say anything further as
regards SK. Raju (supra) as well as Baljinder
Singh (supra). We adhere to the principles of law as
explained by the Constitution Bench in BaldevSingh (supra) and the larger Bench answering the
reference in Pawan Kumar (supra).”
31. In view of the binding precedents of the Hon’ble
Supreme Court, the provisions of Section 50 of the NDPS Act do
not apply to the present case, and the submission that the
prosecution’s case is to be rejected because of the violation of
Section 50 of the NDPS Act is not acceptable.
32. The police officials deposed consistently about the
interception of the accused and recovery of ‘charas’ from the
carry bag being carried by the accused. Nothing was suggested
to the police officials to show that they had any motive to
depose falsely against the accused or to falsely implicate him. 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
::: Downloaded on – 26/08/2025 21:28:31 :::CIS
27
( 2025:HHC:28724 )
cannot be discarded on the ground that they belong to the police
force. It was observed:
“11. It is a settled proposition of law that the sole
.
testimony of the police official, which if otherwise is
reliable, trustworthy, cogent and duly corroborated by
other admissible evidence, cannot be discarded only on
the ground that he is a police official and may beinterested in the success of the case. There is also no rule
of law which lays down that no conviction can be
recorded on the testimony of a police officer, even if such
evidence is otherwise trustworthy. The rule of prudencemay 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 witnessof the locality does not in any way affect the
creditworthiness of the prosecution case. No infirmity
attaches to the testimony of the police officers merelybecause they belong to the police force.”
33. 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, withoutcorroboration by independent witnesses, their testimony
cannot be relied upon. The presumption that a person
acts honestly applies as much in favour of police
personnel as of other persons, and it is not a proper
judicial approach to distrust and suspect them without
good grounds. It will all depend upon the facts and
circumstances of each case, and no principle of general
application can be laid down.” (Emphasis supplied)
34. This position was reiterated in Sathyan v. State of
Kerala, 2023 SCC OnLine SC 986, wherein it was observed:
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28
( 2025:HHC:28724 )
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 thereupon.
cannot be questioned, and the same shall stand on firm
ground. This Court in Pramod Kumar v. State (Govt. of
NCT of Delhi) 2013 (6) SCC 588after referring to State of
U.P. v. Anil Singh [1988 Supp SCC 686: 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] that
there is no absolute command of law that the police
officers cannot be cited as witnesses and their testimony
should always be treated with suspicion. Ordinarily, the
public at large shows their disinclination to come
forward to become witnesses. If 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 police
Department of Police should be viewed with distrust.
This is also based on the principle that the quality of the
evidence outweighs the quantity of evidence.
23. Referring to State (Govt. of NCT of Delhi) v. Sunil 2001
(1) SCC 652, in Kulwinder Singh v. State of Punjab (2015)
6 SCC 674, this court held that: —
“23. … That apart, the case of the prosecution
cannot be rejected solely on the ground that
independent witnesses have not been examined
when, on the perusal of the evidence on record,
the Court finds that the case put forth by the
prosecution is trustworthy. 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.”
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29
( 2025:HHC:28724 )
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 thelegislature… If the court has any good reason to
suspect the truthfulness of such records of the
police, the court could certainly take into
account the fact that no other independentperson was present at the time of recovery. But
it is not a legally approvable procedure to
presume the police action as unreliable to start
with, nor to jettison such action merely for the
r reason that police did not collect signatures ofindependent persons in the documents made
contemporaneous with such actions.”
25. Recently, this Court in Mohd. Naushad v. State (NCT
of Delhi) 2023 SCC OnLine 784 had observed that the
testimonies of police witnesses, as well as pointing out
memos, do not stand vitiated due to the absence of
independent witnesses.
26. It is clear from the above propositions of law, as
reproduced and referred to, that the testimonies of
official witnesses can nay be discarded simply because
independent witnesses were not examined. The
correctness or authenticity is only to be doubted on “any
good reason”, which, quite apparently, is missing from
the present case. No reason is forthcoming on behalf of
the Appellant to challenge the veracity of the testimonies
of PW-1 and PW-2, which the courts below have found
absolutely to be inspiring in confidence. Therefore,
basing the conviction on the basis of testimony of the
police witnesses as undertaken by the trial court and
confirmed by the High Court vide the impugned
judgment, cannot be faulted with.”
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30
( 2025:HHC:28724 )
35. Learned Trial Court had accepted the testimonies of
police officials as correct. Nothing was shown to this Court that
these findings are incorrect. It was laid down by the Hon’ble
.
Supreme Court in Goverdhan v. State of Chhattisgarh (2025)
SCC Online SC 69 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 of the credibility of the witness
by the Trial Court, which had the advantage of seeing and
hearing the witness and all other witnesses. Nothing hasbeen brought to our notice of any serious illegality or
breach of fundamental law to warrant taking 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 be
forgotten 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 be
disturbed. No doubt, the appellate court
possesses the same powers as the original
court, but they have to be exercised with::: Downloaded on – 26/08/2025 21:28:31 :::CIS
31
( 2025:HHC:28724 )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. …………………………………..
30. In Sara Veeraswami v. Talluri
Narayya [(1947-48) 75 IA 252: AIR 1949 PC
32] the Judicial Committee of the PrivyCouncil, after referring to relevant decisions
on the point, stated [Quoting from
Watt v. Thomas, [1947] 1 All ER 582, pp. 583H-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 beenarrived at on conflicting testimony by a
tribunal which saw and heard the
witnesses, the appellate court will bearin mind that it has not enjoyed this
opportunity and that the view of thetrial Judge as to where credibility lies is
entitled to great weight. This is not tosay 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.”
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32
( 2025:HHC:28724 )
36. It was submitted that the police did not comply with
the requirement of Section 42 of the NDPS Act, which is fatal to
the prosecution’s case. This submission is not acceptable. The
.
accused was walking on the open road with the backpack, and
Section 42 of the NDPS Act does not apply to an open place but
only to a closed place. It was laid down by the Hon’ble Supreme
Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West
Bengal 2018 (9) SCC 708, that Section 42 does not apply to the
search made of a person walking in an open space. It was
observed: –
“12. An empowered officer under Section 42(1) is
obligated to reduce to writing the information receivedby him, only when an offence punishable under the Act
has been committed in any building, conveyance or
enclosed place, or when a document or an article isconcealed in a building, conveyance or an enclosed place.
Compliance with Section 42, including recording ofinformation received by the empowered officer, is not
mandatory when an offence punishable under the Act
was not committed in a building, conveyance or anenclosed place. Section 43 is attracted in situations
where the seizure and arrest are conducted in a public
place, which includes any public conveyance, hotel,
shop, or other place intended for use by, or accessible to,
the public.
13. The appellant was walking along Picnic Garden Road.
He was intercepted and detained immediately by the
raiding party in front of Falguni Club, which was not a
building, conveyance or enclosed place. The place of
occurrence was accessible to the public and fell within::: Downloaded on – 26/08/2025 21:28:31 :::CIS
33
( 2025:HHC:28724 )the ambit of the phrase “public place” in the explanation
to Section 43. Section 42 had no application.”
37. It was submitted that the case property was not
resealed, and this violated the mandatory provisions of Section
.
55 of the NDPS Act and the case property was not resealed. This
submission is not acceptable. The recovery was made by
Inspector/SHO Ravinder Kumar, and if he thought that, being
an SHO, he was not supposed to comply with the requirement of
Section 55 of the NDPS Act, he cannot be faulted. It was laid
down by this Court in Prem Bahadur Vs State of H.P., 2009 (1)
Shim. L.C. 65, that the provisions of Sections 52 and 55 of the
NDPS Act are not mandatory and directory. When the
investigating officer was the SHO and he had not resealed the
case property, believing that, since he was the SHO and there
was no such requirement, it was not sufficient to acquit the
accused. It was observed:-
“12. From a perusal of the aforesaid two judgments, it is
apparent that the provisions of Sections 52 and 55 are not
mandatory but only directory. If there is substantial
compliance with the same, the accused cannot be
acquitted. If there are sufficient reasons for non-
compliance with the Sections, then also the accused
cannot claim the benefit of acquittal under these
provisions. At best, the Court may have to scrutinise the
prosecution’s evidence with greater care and caution.
13. In the present case, the recovery of the Charas has
been proved beyond a reasonable doubt. We cannot lose::: Downloaded on – 26/08/2025 21:28:31 :::CIS
34
( 2025:HHC:28724 )sight of the fact that the investigating officer, PW6, was
also the SHO of the Police Station, Manali. He presumed
that he was the charge of the police station and,
therefore, the provisions of Sections 52 and 55 were not
applicable to him. At best, it can be presumed that when.
he was the investigating officer, some other police officer
must be deemed to be in charge of the police station. At
best, we can presume that MHC Khem Chand (PW 2) was
the in-charge of the police station. However, even if wepresume that MHC Khem Chand (PW 2) was the in-
charge of the police station, then the mere non-
compliance of Sections 52 and 55 by not putting the seal
on the sample would not by itself be a ground to acquitthe accused.”
38. Therefore, the prosecution cannot be doubted
because the case property was not resealed by Inspector
Ravinder Kumar.
39. It was submitted that the seal was not produced
before the 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 no requirement to
produce the seal before the Court. It was observed at page 4614:
“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
the case property, that the seal used in sealing::: Downloaded on – 26/08/2025 21:28:31 :::CIS
35
( 2025:HHC:28724 )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 depend on 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.”
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 andsent the same to PW8, Shri Jaipal Singh, Dy. S.P., C.I.D.,
Shimla. At 3.05 P.M., PW7, Head Constable Surender
Kumar, stopped PW5, Naresh Kumar andanother independent witness, Jeevan Kumar, travelling
together, whereafter the appellant was apprehended at
3.30 P.M. with two Gunny Bags on his Scooter, which
contained 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 the
seal ‘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 not::: Downloaded on – 26/08/2025 21:28:31 :::CIS
36
( 2025:HHC:28724 )been produced in the Court is, therefore, perverse in view
of the two specimen seal impressions having been
marked as Exhibits PH and PK. It is not the case of the
appellant that the seals were found tampered with in any
manner.”
.
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 (Ex. P1/PW1 &
Ex. P8/PW8) were produced before the Court. Seal impression
was also put on the NCB-I form (Ex. P3/PW6). Learned Trial
Court noticed while recording the statement of Balbir Singh
(PW1) that the cloth parcel (Ex. MO1) was sealed with five seals
of impression ‘C’, four seals of FSL and three seals of Court seal.
Seals were intact. Therefore, the learned Trial Court satisfied
itself regarding the correctness of the seal impression, and the
failure to produce the seal is not material.
43. The result of analysis (Ex. P9/PW8) shows that the
cloth parcel bearing five seals of seal ‘C’ and three seals of
Judicial Magistrate First Class, Court No.2, Solan was received in
the laboratory. The seals were found intact and were tallied with
the specimen seal sent by the forwarding authority and seal
impression impressed on the NCB-I Form. This report
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37
( 2025:HHC:28724 )
establishes the integrity of the case property. It was held in
Baljit Sharma vs. State of H.P 2007 HLJ 707, where the report of
analysis shows that the seals were intact, the case of the
.
prosecution that the case property remained intact is to be
accepted as correct. It was observed:
“A perusal of the report of the expert Ex.PW8/A shows
that the samples were received by the expert in a safe
manner, and the sample seal was separately sent, talliedwith 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.”
44. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
“It has also come to evidence that to date, the parcels of
the sample were received by the Chemical Examiner, and
the seal put on the said parcels was intact. That itselfproves 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 thatview of the matter, a delay of about 40 days in sending
the samples did not and could not have caused any
prejudice to the appellant.”
45. 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
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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 wereseized 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 wasexamined 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 saidexamination, when it could not be proved that the seal of
the sample was in any manner tampered with. The seal
having been found intact at the time of the examination
by the Chemical Examiner and the said fact having beenrecorded in his report, a mere observation by the High
Court that the case property might have been tampered
with, in our opinion, is based on surmises and
conjectures and cannot take the place of proof.
17. We may at this stage refer to a decision of this Court in
Hardip Singh v. State of Punjab reported in (2008) 8 SCC
557 in which there was a delay of about 40 days in
sending the sample to the laboratory after the same wasseized. In the said decision, it was held that in view of
cogent and reliable evidence that the opium was seized
and sealed and that the samples were intact till they were
handed over to the Chemical Examiner, the delay itself
was held to be not fatal to the prosecution’s case. In our
considered opinion, the ratio of the aforesaid decision
squarely applies to the facts of the present case in this
regard.
18. The case property was produced in the Court, and
there is no evidence to show that the same was ever
tampered with.”
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46. 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 thesame before the Illaqa Magistrate and who returned the
same to him after such production was not examined, as
such, link evidence was incomplete. In this regard, it is to
be noticed that Yogi Raj, SHO, handed over the caseproperty 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 thatJoginder Singh, ASI, was not in possession of the seals of
either the investigating officer or Yogi Raj, SHO. He
produced the case property before the Court on
13.09.1996 vide application Ex.P-13. The concernedJudicial 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 safecustody, 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, it
is evident from the report of the Chemical Examiner,
Ex.P-10, that the sample was received with seals intact
and that the seals on the sample tallied with the sample
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( 2025:HHC:28724 )was complete.” (Emphasis supplied)
47. Therefore, the integrity of the case property is duly
established in the present case.
.
48. Therefore, the learned Trial Court had rightly held
that the accused was found in possession of 345 grams of
‘charas’ and he was rightly convicted of the commission of an
offence punishable under Section 20(b)(ii)(B) of the N.D. & P.S.
Act.
49. Learned Trial Court sentenced the accused to
undergo rigorous imprisonment for five years, pay a fine of
₹25,000/-, and in default of payment of fine to undergo simple
imprisonment for six months. A perusal of the notification
issued by the Central Government shows that 100 grams of
charas is a small quantity, whereas 1 kg of charas is the
commercial quantity. It means that a person possessing 1 kg of
charas can be sentenced to 10 years of 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 a 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::: Downloaded on – 26/08/2025 21:28:31 :::CIS
41
( 2025:HHC:28724 )Saiyed v. State of Gujarat [Ahmed Hussein Vali
Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 :
(2009) 3 SCC (Cri) 368 : (2009) 8 SCR 719] it was held
that the sentence should “deter the criminal from
achieving the avowed object to (sic break the) law,” and.
the endeavour should be to impose an “appropriate
sentence.” The Court also held that imposing “meagre
sentences” merely on account of lapse of time would be
counterproductive. Likewise, in Jameel v. State of
U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1
SCC (Cri) 582 : (2009) 15 SCR 712] while advocating that
sentencing should be fact dependent exercises, the Court
also emphasised that : (Jameel case [Jameel v. State of
U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15
SCR 712], SCC p. 535, para 15)
“15. … the law should adopt the corrective
r machinery or deterrence based on a factual
matrix. By deft modulation, the sentencing
process be 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
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42
( 2025:HHC:28724 )
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 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
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43
( 2025:HHC:28724 )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.
50. The learned Trial Court held that a deterrent
approach is to be adopted. The Legislature has already taken
care of the same while prescribing the penalty of up to 10 years.
Learned Trial Court did not assign any reason to deviate from
the principle of proportionality. If the principle of
proportionality is applied to the present case, the accused
possessing 345 grams of ‘charas’ would be liable to punishment
for three years and four months and pay a fine of ₹34,500/-.
Hence, the sentence imposed by the learned Trial Court is
excessive, which is liable to be interfered with.
51. In view of the above, the present appeal is partly
allowed and the appellant/accused is sentenced to undergo
rigorous imprisonment for three years and four months and to
pay a fine of ₹34,500/- and in default of payment of fine, to
further undergo rigorous imprisonment for four months for the
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commission of offence punishable under Section 20(b)(ii)(B) of
the ND&PS Act. Subject to this modification, the rest of the
sentence awarded by the learned Trial Court is upheld. The
.
modified warrants be prepared accordingly.
52. Records of the learned Trial Court be sent back
forthwith alongwith copy of the judgment. Pending
applications, if any, also stand disposed of.
26 August 2025.
r to (Rakesh Kainthla)
Judge
(yogesh)
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