Himachal Pradesh High Court
State Of H.P vs Pardeep Kumar & Others on 9 January, 2025
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
Neutral Citation No. ( 2025:HHC:2252-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 4264 of 2013
Reserved on: 04.01.2025
Date of Decision: 09.01.2025
State of H.P. ...Appellant.
Versus
Pardeep Kumar & others ...Respondents.
Coram
Hon'ble Mr Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant/State : Mr I.N. Mehta and Mr. Yashwardhan
Chauhan, Senior Additional
Advocates General with Navlesh
Verma, Ms Sharmila Patial,
Additional Advocates General and
Mr. Raj Negi, Deputy Advocate
General
For the Respondents : Mr. Kashmir Singh Thakur, Senior
Advocate with Mr. Manohar Lal
Sharma for respondents No.1 & 2.
Mr. Lovneesh Kanwar, Senior
Advocate with Mr. Tek Chand,
Advocate for respondent No. 3.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 14.08.2013 passed by learned Special Judge, Kullu, District
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:2252-DB )
Kullu (learned Trial Court) vide which the respondents (accused
before learned Trial Court) were acquitted of the commission of
offences punishable under Section 20 read with Section 29 of
Narcotic Drugs and Psychotropic Substances, Act (hereinafter
referred to as ND&PS Act) and Section 25 of Arms Act. (Parties shall
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan against the accused before
the learned Trial Court for the commission of offences punishable
under Section 20 read with Section 29 of ND&PS Act and Section 25
of the Arms Act. It was asserted that Inspector Mahesh Kumar
(PW13), ASI Mukesh Kumar (PW11), HC Jawala Singh and Constable
Tarsem Lal (PW12) were present at a distance of 2 kms from
Chharod Nala bridge towards Manikaran on 08.05.2010 in the
official vehicle bearing registration No. HP34A-9986 which was
being driven by Constable Baldev Singh. A vehicle bearing
registration No. HR-12C-3654 came from Manikaran at about 8:15
PM. Two persons were sitting in the vehicle beside the driver. The
police demanded the documents of the vehicle and driving license
of the driver. The driver produced the driving license of Anuj
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Neutral Citation No. ( 2025:HHC:2252-DB )
Kumar. The driver also revealed his name as Anuj Kumar. The
person sitting beside the driver revealed his name as Pardeep
Kumar and the person sitting on the rear seat revealed his name as
Pradeep Saini. The registration certificate was found to be issued in
the name of Naveen Mahanto. The pollution under control
certificate and insurance were found to be in the name of Ashok.
Accused Pardeep Kumar revealed that he had purchased the vehicle
some days ago and had not got the ownership transferred in his
name. The occupants appeared to be frightened. The police
suspected that they were transporting some contraband. The police
checked the vehicle and found two bags on the rear seat which
were containing personal belongings. The driver was asked to open
the dickey of the vehicle. All the accused said that the dickey was
defective and could not be opened. Inspector Mahesh Kumar
(PW13) tried to open the dickey and the dickey started opening. The
police waited for an independent person but no one arrived on the
spot. HC Jawala Singh and Inspector Mukesh Kumar (PW11) were
associated as witnesses and the dickey of the car was opened in
their presence. The mat in the dickey was found to be disturbed
from its original position. The mat was removed and two screws
were found to be loose. They were opened and a black bag was
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Neutral Citation No. ( 2025:HHC:2252-DB )
recovered. The police checked the bag and found six packets
wrapped in a Khaki Cello Tape. The cello tape was removed and 14
packets of transparent polythene containing the black substance
were recovered. One packet had black sticks, four packets had black
pancakes and nine packets had black substance in the form of Aam
Papad. Inspector Mahesh Kumar (PW13) smelled the black
substance and found it to be charas. Charas was weighed and its
weight was found to be 1 kg 880 grams. The charas and cello tape
were put in the bag from which they were recovered. The bag was
put in a cloth parcel and the parcel was sealed with six impressions
of seal 'A'. The specimen seal was taken on a separate piece of
cloth. NCB-1 Form (Ext.PW5/G) was filled and a seal impression
was put on the form. The charas, documents of the vehicle and key
were seized wide memo (Ext. PW11/A). The seal was handed over to
SI Mukesh Kumar (PW13) after the use. Rukka (Ext.PW7/A) was
prepared and handed over to LHC Tarsem Lal (PW12) who carried it
to the Police Station, where FIR (Ext.PW7/B) was registered.
Inspector Mahesh Kumar (PW13) prepared the site plan
(Ext.PW13/A). He seized the bags (Ext.P6 and Ext.P7) vide memo
(Ext.PW13/B). He arrested the accused vide memos (Ext.PW11/B to
Ext.PW11/D). He produced the case property and the accused before
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Neutral Citation No. ( 2025:HHC:2252-DB )
Tej Ram (PW7), who resealed the parcels with six seals of
impression 'T'. He filled the relevant columns of the NCB-1 Form
in triplicate. He obtained the sample seal on a separate piece of
cloth. He handed over the case property to HC Ram Kishan (PW5)
who deposited it in Malkhana and made an entry at Sl. No. 77. He
sent the parcel along with sample seals, NCB-1 Form in triplicate,
photocopy of FIR and seizure memo to SFSL Junga through
Constable LHC Tarsem Lal (PW12) vide R.C. No. 125/10 (Ext.PW5/F).
LHC Tarsem Lal (PW12) deposited all the articles at SFSL Junga and
handed over the receipt to HC Ram Krishan (PW5) on his return. SI
Mahesh Kumar (PW13) deposited the bags with HC Ram Krishan
(PW5) on 10.05.2010. He entered them in the register of Malkhana
at Sl No. 83 and deposited the case property in Malkhana. SI
Mahesh Kumar (PW13) interrogated the accused, Anuj. Accused
Anuj made a disclosure statement (Ext.PW2/A) stating that he
could get the weighing scale (Ext.P9) recovered, which was used by
Raman Kumar for weighing the charas. He led the police party to
Hotel Kamal Palace, Kasol and got one electronic weighing scale
(Ext.P9) recovered, which was seized vide memo (Ext.PW8/A). SI
Mahesh Kumar (PW13) prepared the spot map (Ext.PW13/C)
showing the place of recovery. He seized the vehicle bearing
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Neutral Citation No. ( 2025:HHC:2252-DB )
registration No. DL-1CH-6633 vide memo (Ext.PW6/A). He
prepared the special report (Ext.PW4/A) and handed it over to Dy.
Superintendent of Police Shiv Chaudhary. On 10.05.2010. Dy.
Superintendent of Police Shiv Chaudhary made an endorsement on
the special report and handed it over to his reader HC Harbans
Kumar (PW4). Accused Raman Kumar made another disclosure
statement that he had concealed a revolver in room No. 110 which
could be recovered by him. The statement (Ext.PW3/A) was
reduced into writing. Accused Anuj Kumar led the police party to
room No. 110 of Hotel Kamal Palace, Kasol and got recovered a
pistol. Its sketch (Ex.PW3/C) was prepared. The pistol was put in a
separate cloth parcel. The parcel was sealed with eight seals of
impression 'K'. A spot map of the place of recovery was prepared.
The sample seal (Ext.PW3/D) was drawn on a separate piece of
cloth. The case properties were deposited with HC Ram Kishan
(PW5), who deposited them in Malakhana. The result of analysis
(Ext. PX) was issued in which it was shown that the exhibit was an
extract of cannabis and a sample of charas which contained 41.63
% w/w resin in it. Statements of the remaining witnesses were
recorded as per their version and after the completion of the
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Neutral Citation No. ( 2025:HHC:2252-DB )
investigation, the challan was prepared and presented before the
learned Trial Court.
3. The learned Trial Court charged accused Raman Kumar
with the commission of offences punishable under Section 20 read
with Section 29 of the ND&PS Act and Section 25 of the Arms Act.
The learned Trial Court charged accused Pradeep Saini and
accused Pardeep Kumar with the commission of offences
punishable under Section 20 read with Section 29 of the ND&PS
Act. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 13 witnesses to prove its
case. Hem Raj Arya (PW1) proved the computerized bank
statements. HHG Gurdial (PW2) is the witness to the disclosure
statement made by accused Anuj Kumar. Constable Sunil Kumar
(PW3) is the witness to the disclosure statement made by accused
Raman Kumar and the consequent recovery. HC Harbans Kumar
(PW4) was working as the Reader to whom the special report was
handed over. HC Ram Krishan (PW5) was working as MHC with
whom the case property was deposited. Mujmil Chaudhary (PW6)
proved that the vehicle of accused Raman Kumar was received for
repair. Tej Ram (PW7) signed the FIR and resealed the case
property. Constable Krishan Chand (PW8) is the witness to the
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Neutral Citation No. ( 2025:HHC:2252-DB )
recovery of the vehicle and the electronic weighing scale. SI Om
Chand (PW9) conducted the partial investigation. Inspector
Sanjeev Chauhan (PW10) recorded the disclosure statement of
accused Raman Kumar and effected the recovery. SI Mukesh Kumar
(PW11) and LHC Tarsem Lal (PW12) are the official witnesses to
recovery. Inspector Mahesh Kumar (PW13) effected the recovery
and conducted the investigation.
5. The accused in their statements recorded under Section
313 Cr.P.C. denied the prosecution case in its entirety. Accused
Pradeep Saini stated that he went to Manali in a Taxi with accused
Pardeep Kumar which was being driven by accused Anuj. They
stayed in Gurudwara Manikaran where police came with accused
Anuj and they were falsely implicated. Accused Anuj Kumar left
them in Gurudwara and he went with the car. The car was in the
possession of accused Anuj Kumar. A similar statement was made
by accused Pardeep Kumar. They denied the prosecution case in its
entirety and stated that they were falsely implicated. No defence
was sought to be adduced by the accused.
6. The learned Trial Court held that the prosecution had
failed to provide any evidence to show that accused Pardeep Kumar
had purchased the vehicle. The statement of registered owner
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Neutral Citation No. ( 2025:HHC:2252-DB )
Naveen Mahanto was not recorded. It was unbelievable that any
person would sit in the vehicle of a stranger. It was improbable that
the accused would have kept the charas in the dickey, which could
have been opened easily by the police. Independent witness was
not associated during the investigation, which would cast doubt on
the prosecution case. The Investigating Officer had a suspicion
regarding the possession of the contraband and the prosecution
failed to comply with the requirements of Section 42 of ND&PS Act.
The sample seals were not produced in the Court and this would
cast doubt on the prosecution case. There was no evidence showing
that the chemical analyst had received the sample seals and the
case property. The ownership of room No. 110 was not established.
No record from Manikaran Gurudwara was taken into possession.
The report of the analysis did not show the presence of
cannabinoids including the presence of tetrahydrocannabinol, and
it was insufficient to prove that the substance being carried in the
car was charas; hence the accused were acquitted.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the State has filed the present appeal asserting
that the learned Trial Court erred in acquitting the accused. The
learned Trial Court failed to appreciate the prosecution evidence
10
Neutral Citation No. ( 2025:HHC:2252-DB )
from its proper perspective and had set unrealistic standards for
evaluating the prosecution evidence. Learned Trial Court discarded
the testimonies of prosecution witnesses for untenable reasons. It
was wrongly held that the prosecution had failed to establish how
the accused happened to be in the vehicle owned by Naveen
Mahanto. This was not an important factor. The view taken by the
learned Trial Court that the dickey could not have been opened was
also unreasonable. There was no requirement to comply with the
provisions of Section 42 of the ND&PS Act in the present case. The
testimonies of prosecution witnesses were satisfactory and
corroborated each other in material particulars. Therefore, it was
prayed that the present appeal be allowed and the judgment passed
by the learned Trial Court be set aside.
8. We have heard Mr. I.N. Mehta and Mr. Yashwardhan
Chauhan, learned Senior Additional Advocates General with
Mr. Navlesh Verma, Ms Sharmila Patial, learned Additional
Advocates General and Mr Raj Negi, learned Deputy Advocate
General for the appellant/State, Mr Kashmir Singh Thakur learned
Sr. Advocate assisted by Mr Manohar Lal Sharma, learned counsel
for the respondents/accused No.1 and 2 and Mr. Lovneesh Kanwar,
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Neutral Citation No. ( 2025:HHC:2252-DB )
learned Senior Counsel assisted by Mr. Tek Chand, learned counsel
for the respondent/accused No.3.
9. Mr Yashwardhan Chauhan, learned Senior Additional
Advocate General for the appellant/State submitted that the
learned Trial Court erred in acquitting the accused. The learned
Trial Court had wrongly held that the prosecution was required to
comply with the requirements of Section 42 of the ND&PS Act. It
was a case of chance recovery. Therefore, there was no
requirement to comply with the provisions of Section 42 of the
ND&PS Act. The Police officials categorically stated that they
waited for the independent persons but nobody came; hence the
search was conducted in the presence of police officials. This was
not proved to be wrong. Otherwise, it was a case of chance
recovery, and independent witnesses could not have been
associated with the investigation. The ownership of the vehicle was
not required to be proved and the finding recorded by the learned
Trial Court that the presence of the accused in one vehicle was
contrary to the statement of the accused recorded under Section
313 Cr.P.C., wherein they admitted their presence in the vehicle
with accused Anuj Kumar. The findings recorded by the learned
Trial Court that the case property was not proved to be charas is
12
Neutral Citation No. ( 2025:HHC:2252-DB )
contrary to the judgments of this Court and the Hon'ble Supreme
Court. Hence, he prayed that the present appeal be allowed and the
judgment passed by the learned Trial Court be set aside.
10. Mr Kashmir Singh, learned Senior Advocate for
respondents No. 2 and 3 supported the judgment passed by the
learned Trial Court. He submitted that the police officials admitted
in their cross-examination that the Investigating Officer had a
suspicion regarding the transportation of the contraband.
Therefore, it was essential to comply with the requirements of
Section 42 of the ND&PS Act. The incident had taken place on the
highway and it is highly unbelievable that no person or vehicle had
met the police party. The sample seals were not produced before
the Court and there is no evidence that the sample seal was sent to
SFSL Junga. The learned Trial Court had taken a reasonable view
while deciding the matter and this Court should not interfered with
the reasonable view of the learned Trial Court. Therefore, he
prayed that the present appeal be dismissed. He relied upon State
of H.P. versus Rajesh Kumar @ Raju 2024:HHC:12713 and State of H.P.
versus Raj Kumar @ Raju 2024:HHC:13853 in support of his
submission.
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Neutral Citation No. ( 2025:HHC:2252-DB )
11. Mr. Lovneesh Kumar, learned Senior Counsel for
respondent No. 4 submitted that the disclosure statement of an
accused is not admissible against the co-accused. The prosecution
had not sent the pistol to the Forensic Science Laboratory to
determine that it would fall within the definition of a firearm. The
prosecution sanction was not sought from the District Magistrate
as required under Section 39 of the Arms Act; hence, the
prosecution of respondent no. 4 under the Arms Act was bad. He
relied upon the judgments of the Hon'ble Supreme Court in Manoj
Kumar Soni v. State of M.P AIR 2023 SC 3857 and Buta Singh versus
State of Punjab AIR 1995 SC 1461 in support of his submission.
12. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. The present appeal has been filed against a judgment of
acquittal. It was laid down by the Hon'ble Supreme Court in
Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine
SC 130 that while deciding an appeal against acquittal, the High
Court should see whether the evidence was properly appreciated on
record or not; second whether the finding of the Court is illegal or
affected by the error of law or fact and thirdly; whether the view
taken by the Trial Court was a possible view, which could have been
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Neutral Citation No. ( 2025:HHC:2252-DB )
taken based on the material on record. The Court will not lightly
interfere with the judgment of acquittal. It was observed:
"25. We may first discuss the position of law regarding the
scope of intervention in a criminal appeal. For that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of
innocence in favour of the accused unless proven guilty. The
presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concretised when the case
ends in acquittal. It is so because once the trial court, on
appreciation of the evidence on record, finds that the
accused was not guilty, the presumption gets strengthened,
and a higher threshold is expected to rebut the same in
appeal.
26. No doubt, an order of acquittal is open to appeal, and
there is no quarrel about that. It is also beyond doubt that in
the exercise of appellate powers, there is no inhibition on the
High Court to reappreciate or re-visit the evidence on record.
However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order
under challenge is of acquittal. The first and foremost
question to be asked is whether the trial court thoroughly
appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the trial
court is illegal or affected by an error of law or fact. If not,
the third consideration is whether the view taken by the trial
court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What
is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
"two-views theory" has been judicially recognised by the
courts, and it comes into play when the appreciation of
evidence results in two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For,
15
Neutral Citation No. ( 2025:HHC:2252-DB )
the very existence of an equally plausible view in favour of
the innocence of the accused is in itself a reasonable doubt in
the case of the prosecution. Moreover, it reinforces the
presumption of innocence. Therefore, when two views are
possible, following the one in favour of the innocence of the
accused is the safest course of action. Furthermore, it is also
settled that if the view of the trial court, in a case of
acquittal, is a plausible view, it is not open for the High Court
to convict the accused by reappreciating the evidence. If such
a course is permissible, it would make it practically
impossible to settle the rights and liabilities in the eye of the
law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp.
236-37, para 13)
"13. Considering the reasons given by the trial court and
on an appraisal of the evidence, in our considered view,
the view taken by the trial court was a possible one. Thus,
the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N.,
(2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that
as the appreciation of evidence made by the trial court
while recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High
Court while reversing the acquittal has been dealt with by
this Court, thus: (SCC p. 643, para 9)
'9. ... We are constrained to observe that the High Court
was dealing with an appeal against acquittal. It was
required to deal with various grounds on which
acquittal had been based and to dispel those grounds.
It has not done so. Salutary principles while dealing
with appeals against acquittal have been overlooked by
the High Court. If the appreciation of evidence by the
trial court did not suffer from any flaw, as indeed none
has been pointed out in the impugned judgment, the
order of acquittal could not have been set aside. The
view taken by the learned trial court was a reasonable
view, and even if by any stretch of the imagination, it
16
Neutral Citation No. ( 2025:HHC:2252-DB )
could be said that another view was possible, that was
not a ground sound enough to set aside an order of
acquittal.'"
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6
SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court
analysed the relevant decisions and summarised the
approach of the appellate court while deciding an appeal
from the order of acquittal. It observed thus: (SCC p. 297,
para 7)
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in
acquitting the accused must be dealt with in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal matter
gets reinforced (see Atley v. State of U.P. [Atley v. State
of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow in
interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala [Sambasivan v. State of
Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])."
14. This position was reiterated in Ramesh v. State of
Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it
was observed at page 175:
"20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa v. State of
Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC
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Neutral Citation No. ( 2025:HHC:2252-DB )
415 : (2007) 2 SCC (Cri) 325], regarding the power of the
appellate court while dealing with an appeal against a
judgment of acquittal. The principles read thus: (SCC p. 432,
para 42)
"42. ... (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on the exercise of
such power and an appellate court on the evidence before
it may reach its own conclusion, both on questions of fact
and law.
(3) Various expressions, such as "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc., are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is a double presumption in
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court."
21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v.
State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three-
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judge Bench of this Court pointed out that it would be
essential for the High Court, in an appeal against acquittal,
to clearly indicate firm and weighty grounds from the record
for discarding the reasons of the trial court in order to be
able to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses, and it is
absolutely imperative that the High Court convincingly finds
it well-nigh impossible for the trial court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice."
15. The present appeal has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
16. Inspector Mahesh Kumar (PW13) stated that he, SI
Mukesh Kumar (PW11), LHC Tarsem Lal (PW12), and HC Jawala
Singh had gone on patrolling in the official vehicle bearing
registration No. HP34A-9986, which was being driven by LHC
Baldev. They were present 2 Kms ahead of Charod Nala. A vehicle
bearing registration No. HR12C-3654 came from Manikaran at 8:15
PM, which was signalled to stop. Two persons were sitting in the
vehicle beside the driver. The person sitting in the front seat with
the driver revealed his name as Pardeep Kumar and the person
sitting in the rear seat revealed his name as Pradeep Saini. The
driver revealed his name as Anuj. SI Mahesh Kumar (PW13)
demanded the driving license and the documents of the vehicle
from Anuj. The accused were found perplexed. He searched the
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vehicle and recovered two bags kept on the rear seat. Nothing
incriminating was found during the search of the bags. He asked
the accused to open the dickey of the vehicle. The accused disclosed
that the dickey was out of order and could not be opened. He tried
to open the dickey and it started opening. He suspected that some
contraband was being carried in the dickey of the vehicle. He
waited for the independent witness or some vehicle. However, no
vehicle or the witness arrived on the spot. He associated SI Mukesh
Kumar (PW11) and HC Jawala Singh as witnesses and opened the
dickey. He found that the mat of the dickey was displaced and two
nuts of the dickey were partially opened. He opened the nuts and
found a black bag inside the dickey below a tin sheet. He opened
the bag and found six packets wrapped in Khaki cello tapes. He
opened the packets and found 14 packets wrapped in transparent
polythene having black substance. One packet had a stick shape,
four packets had a pancake shape and nine packets had Aam
Papad-shaped black substance. He smelled the substance and
found it to be charas. He weighed 14 packets and found their weight
to be 1 kg 880 grams. He repacked the 14 packets in the same
manner in which they were recovered. He put the bag in a cloth
parcel and sealed the parcel with six seals of seal 'A'. He filled the
20
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NCB-1 Form in triplicate and obtained the sample seal on a
separate piece of cloth. He handed over the seal to ASI Mukesh
Kumar (PW11). He seized the parcel and the documents vide memo
(Ext.PW11/A). He prepared the rukka and handed it over to LHC
Tarsem Lal (PW12) who carried it to the Police Station. He prepared
the spot map and seized the bags on the spot. He arrested the
accused and produced the accused and the case property before
SHO Tej Ram (PW7) for resealing.
17. He stated in his cross-examination that he had not
given any information under Section 42 of the ND&PS Act to his
immediate superior. He volunteered to say that the recovery was a
chance recovery. He had not made any enquiry from Naveen
Mahanto who was shown the registered owner in the R.C. They left
the police station at 7:15 PM and did not stop on the way. It took
10-15 minutes to check the bags of the accused. He waited for about
15 minutes for witnesses. He had not asked for the key of the dickey
from the accused. The dickey easily opened when he held the
handle of the dickey. He admitted that the dickey of the Esteem car
cannot be opened without a key or operating the internal holding
system. He conducted the proceedings inside the official jeep. He
had not made any enquiry that the car was being used as a taxi or
21
Neutral Citation No. ( 2025:HHC:2252-DB )
that accused Anuj Kumar used to drive the car in question as a taxi
driver. He prepared the memo (Ext.PW2/A). He denied that no
recovery was effected and a false case was made against the
accused.
18. Sub-Inspector Mukesh Kumar (PW11) made a similar
statement as was made by SI Mahesh Kumar (PW13) in his
examination-in-chief. Therefore, the same is not been re-
produced to avoid repetition and prolixity. He stated in his cross-
examination that he had misplaced the seal on the next day of the
incident. He had not reported this fact to the police. No
proceedings under Section 42 of the ND&PS Act were carried out.
The vehicle of the accused was stopped first. No stone was put on
the road. The car reached the spot within two minutes and a search
was conducted after 10-15 minutes. No personal search of the
accused was conducted on the spot before the search of the vehicle.
The seizure memo was prepared within one hour. He had not
verified the luggage found in the bags. He had not verified whether
the car was being driven as a private taxi or not. The Investigating
Officer had not made any enquiry whether accused Anuj used to
visit Manikaran, Manali with the vehicle. He was not aware that
accused Pardeep Kumar and accused Pradeep Saini were staying in
22
Neutral Citation No. ( 2025:HHC:2252-DB )
Gurudwara, Manikaran. The dickey of the car was opened by the
Investigating Officer with his hand. They waited for 15-20 minutes
for a witness to arrive on the spot. They remained on the spot for
about 3:15-3:30 hours. Nobody came on the spot during this period.
He denied that both accused persons, namely, Pardeep Kumar and
Pradeep Saini were falsely implicated.
19. LHC Tarsem Lal (PW12) also made a similar statement
in his examination-in-chief as was made by SI Mahesh Kumar
(PW13). Hence, the same is not reproduced to avoid repetition. He
stated in his cross-examination that the place of occurrence was
located at a distance of 18-19 kilometres from the police station.
They reached the spot at about 8:15 PM. They had not stopped on
the way. He saw the vehicle at a distance of 30-40 meters. The
vehicle was stopped by giving a signal. The accused were outside
the car when it was searched. It took about 10 minutes to search the
bags in the car. No person was sent to call the witness as no
independent witness was available. He could not say whether the
key was used for opening the dickey. It took about 15 minutes to
search the entire car. He admitted that the road had vehicular
traffic. He volunteered to say that no vehicle had crossed them. He
went to the Police Station, Kullu in a private vehicle which was a
23
Neutral Citation No. ( 2025:HHC:2252-DB )
truck-type vehicle. He took the lift up to Bhuntar and thereafter in
another private vehicle. He reached Police Station, Kullu within an
hour. He was not aware whether the bus service was available on
Manikaran Road during the night. He was waiting at Dhalpur
Chowk when the Investigating Officer met him. Thereafter they
went to the Police Station, Kullu by foot within two minutes. No
proceedings were conducted by the Investigating Officer at
Dhalpur Chowk in his presence. The proceedings were conducted at
the spot inside the official vehicle. He denied that no recovery was
effected.
20. It was submitted that the testimonies of police officials
show that SI Mahesh Kumar (PW13) became suspicious of the
possession of the contraband when the accused refused to open the
dickey of the Car by saying that it was defective; therefore, he was
required to comply with the provisions of Section 42 of the ND&PS
Act. This submission is not acceptable. The statement that the
police had a suspicion about contraband is not equivalent to the
suspicion of Narcotic Drugs or Psychotropic Substances. The term
'Contraband', according to Merriam-Webster Dictionary, means
goods or merchandise exportation or possession of which is
forbidden. According to the Cambridge Dictionary, contraband
24
Neutral Citation No. ( 2025:HHC:2252-DB )
means goods that are brought into or taken out of the country
secretly and illegally. According to the Collins English Dictionary,
contraband refers to goods that are taken into or out of the country
illegally. According to the Oxford Learner Dictionary, contraband
means goods that are illegally taken into or out of the country.
Therefore, all the standard dictionaries do not refer to contraband
as Narcotic Drugs or Psychotropic Substances Act, but to illegal
goods. Hence, they include many other things besides narcotics or
psychotropic substances, and no advantage can be derived from
the statement that the investigating officer suspected the
transportation of contraband.
21. The provision of Section 42 of the NDPS Act applies
when the police have a reason to believe from personal knowledge
or information given by any person that any narcotic drug,
psychotropic substance, or controlled substance is kept or
concealed. There is a distinction between vague suspicion and
definite grounds of belief. The police are required to comply with
the requirement of Section 42 of the NDPS Act when it has definite
information and not a vague suspicion. It was laid down in
Babubhai Odhavji Patel and others Versus State of Gujarat 2005(8)
SCC 425 that even when the Investigating Officer admitted that DIG
25
Neutral Citation No. ( 2025:HHC:2252-DB )
had instructed him about the transportation of the intoxicant from
the States of Rajasthan and Uttar Pradesh through the vehicles
passing in his District, it was only general information. It was not
required to be reduced to writing. Only specific information is to be
recorded by the empowered officer. It was observed:
"As regards violation of Section 42 of the NDPS Act, it was
contended that PSI, L.U. Pandey had received previous
information before going for the search, but he had not
recorded this information anywhere, and he had also not
informed his superior officers about the proposed seizure. In
the present case, the officer who conducted the search was
examined as PW-2. What he stated in the evidence was that
the D.I.G. had instructed him that intoxicant materials were
being transported illegally from the States of Rajasthan and
Uttar Pradesh, and the vehicles had been passing through
Banaskantha district. This was only general information
given by the D.I.G. to PW-2, and such information is not
bound to be recorded as a source of information as
contemplated under Section 42 of the NDPS Act. Section 42 of
the NDPS Act provides that specific information alone needs to
be recorded by the officer empowered to conduct a search. Here,
PW-2 and the members of the patrol team were doing the usual
patrol duty, and they incidentally came across the tanker lorry in
question and, on search, recovered the contraband substance
from the vehicle. We do not think that there is any violation of
Section 42 of the NDPS Act.
5. The counsel for the appellant further contended that the
search was conducted at 5.30 A.M., that is, before sunrise,
and the PSI should have obtained a warrant or authorisation
for conducting the search of the vehicle. This plea also is
without any merit. The contraband substance, namely opium,
was recovered from the tanker when the usual search of
suspected vehicles carrying such contraband was being
conducted by the police officials. The police party had no
previous information that any contraband substance was being
26
Neutral Citation No. ( 2025:HHC:2252-DB )
concealed in any building, conveyance or enclosed space, and
they had to conduct a search pursuant to such information.
Then, only they would require a warrant or authorisation as
contemplated under Section 42 of the NDPS Act. If it is a chance
recovery, the procedure contemplated under Section 42 cannot
be complied with, and the evidence of PW-2 would clearly show
that it was a chance recovery." (Emphasis supplied)
22. Similarly, it was held in Subhas Chandra Jana Versus
Ajibar Mirdha 2011 Cri. L.J. 257 that section 42 is applicable only
when the police have specific information. When the police had
received secret information, which was not specific but vague or
non-provable information, there was no requirement to reduce it
to writing. It was observed:
"The compliance of Section 42(1) of the NDPS Act, 1985 is
mandatory. From the facts of the present case, it is very clear
that the NCB Officers raided the house of the accused,
receiving prior information. But, as per the above-
mentioned section, Officers receiving prior information
should reduce the same in writing and also record the
reasons for the belief. According to the Prosecution, they did
not go on the basis of any information but only to work out
an intelligence, whereas PW 2, during cross-examination,
said that they raided on the basis of secret information. So,
according to the defence, non-compliance of the mandatory
provision of Section 42(1) vitiated the trial. In the case,
Babulal v. State, 1995 Cri LJ 4105 Bombay High Court observed
that no vague information is required to be reduced to
writing. Thus, where the information received by the Police
Officer was that some persons had arrived at a particular
place with a large quantity of brown sugar and they were in
search of customers, the information so received was not
specific, which required the police to reduce it to writing.
This was not information as contemplated under Sections 41
and 42 of the NDPS Act, 1985.
27
Neutral Citation No. ( 2025:HHC:2252-DB )
This view was approved by the Apex Court in the case of
State of Punjab v. Balbir Singh, 1994 Cal CLR (SC) 121 : (AIR
1994 SC 1872: 1994 Cri LJ 3702). Paragraph 22 of the said
decision is quoted below:--
"We have also already noted that the searches under
the NDPS Act by virtue of Section 51 have to be carried
under the provisions of Cr. P. C., particularly Sections
100 and 165. The irregularities, if any, committed, like
independent witnesses not being associated or the
witnesses not from the locality while carrying out the
searches, etc., under sections 100 and 165, Cr. P. C.
would not, as discussed above, vitiate the trial. But a
question may still arise: when an empowered officer
acting under Sections 41 and 42 of the Act carries out a
search under Section 165, Cr. P. C., without recording
the grounds of his belief as provided under Section
165, whether such failure also would vitiate the trial,
particularly in view of the fact that such a search is
connected with offences under the NDPS Act. Neither
Section 41(2) nor Section 42( 1) mandates such
empowered officers to record the grounds of their
beliefs. It is the only proviso to Section 42 (1) read with
Section 42(2), which makes it obligatory to record
grounds for his belief. To that extent, we have already
held the provisions being mandatory. A fortiori, the
empowered officer, though is expected to record
reasons of belief as required under Section 165, failure
to do so cannot vitiate the trial, particularly when
Section 41 or 42 do not mandate to record reasons
while making a search. Section 165 in the context has
to be read along with Sections 41(2) and 42(1)
whereunder he is not required to record his reasons."
In the present case, the NCB officials raided the house of the
accused not on any specific information but on vague,
uncertain and probable information. The term "Secret"
nowhere indicates that the information was reliable. So, on
the basis of the above-mentioned judgment, there was no
requirement to reduce it to writing as there was no formal or
definite complaint as such.
28
Neutral Citation No. ( 2025:HHC:2252-DB )
Assuming that the NCB Officials had definite information
about the Accused, then also the trial cannot be vitiated on
this ground. The Apex Court in H. N. Rishbud v. State of Del.
AIR 1955 SC 196: (1955 Cri LJ 526) held that a defect or
illegality in the investigation, however serious, has no
bearing on the competence of the procedure relating to
cognisance or trial.
Drug trafficking is equally, if not more, dangerous, as it
allures and has allured, a generation of young Indians from
Manipur to Gujarat, from Kashmir to Kanya Kumari who is
crippled by these drugs and psychotropic substances, whose
senses are atrophied, to whom illusion has become a reality,
who are beating their marches slowly and painfully Farid Ali
v. State, 1994 Cal Cr LR 189. In the present case, the accused
himself voluntarily made a confessional statement stating
that he dealt with Heroin for the livelihood of his family. So,
after the voluntary admission by the Accused, there remains
no scope to acquit the accused on the grounds of mere
irregularity of procedural compliance by the prosecution in
the interest of justice. It was held in the case In Re: Md. Farid
Ali v. State (1994 Cal Cri LR 189) that Recovery of Narcotics
from an accused cannot impede the course of justice merely
on the ground of procedural lapses when the contraband
goods on ultimate analysis are found to be Narcotic by the
expert. It, therefore, excludes the plea of technicality, which
cannot make any triumph over social legislation."
23. There is no evidence that police had any prior
information and it was rightly submitted on behalf of the
prosecution that it was a case of chance recovery. 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
29
Neutral Citation No. ( 2025:HHC:2252-DB )
police were not looking for the drugs nor expected to find the
drugs, any recovery is a chance recovery. A positive suspicion of
the police official is not sufficient to show that it was not the case
of chance recovery. It was observed at page 784:
"13. The expression "chance recovery" has not been defined
anywhere and its plain and simple meaning seems to be a
recovery made by chance or by accident or unexpectedly.
In Mohinder Kumar v. State [(1998) 8 SCC 655: 1999 SCC (Cri)
79] this Court considered a chance recovery as one when a
police officer "stumbles on" narcotic drugs when he makes
a search. In Sorabkhan Gandhkhan Pathan v. State of
Gujarat [(2004) 13 SCC 608: (2006) 1 SCC (Cri) 508] the police
officer, while searching for illicit liquor, accidentally found
some charas. This was treated as a "chance recovery".
14. Applying this to the facts of the present appeal, it is clear
that the police officers were looking for passengers who
were travelling ticketless and nothing more. They
accidentally or unexpectedly came across drugs carried by a
passenger. This can only be described as a recovery by
chance since they were neither looking for drugs nor
expecting to find drugs carried by anybody.
15. It is not possible to accept the view of the High Court that
since the police officers conducted a random search and had
a "positive suspicion" that Sunil Kumar was carrying
contraband, the recovery of charas from his person was not
a chance recovery. The recovery of contraband may not have
been unexpected, but the recovery of charas certainly was
unexpected notwithstanding the submission that drugs are
easily 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.
30
Neutral Citation No. ( 2025:HHC:2252-DB )
24. It was held that positive suspicion entertained by the
police officer cannot be equated with prior information. It was
observed:
19. Similarly, the positive suspicion entertained by the police
officers cannot be equated with prior information.
[Bharatbhai Bhagwanjibhai v. State of Gujarat, (2002) 8 SCC
327: 2003 SCC (Cri) 4] The procedure to be followed when
there is prior information of the carrying of contraband
drugs is laid down in the Act and it is nobody's case that that
procedure was followed, let alone contemplated.
20. We are not in agreement with the view of the High Court
that since the police officers had a positive suspicion that
Sunil Kumar was carrying some contraband, therefore, it
could be said or assumed that they had reason to believe or
prior information that he was carrying charas or some other
narcotic substance and so, before his personal or body
search was conducted, the provisions of Section 50 of the Act
ought to have been complied with. The recovery of charas on
the body or personal search of Sunil Kumar was clearly a
chance recovery and, in view of Baldev Singh [State of
Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080],
the police officer to comply with the provisions of Section 50
of the Act.
25. In the present case also, the police stopped the vehicle
of the accused and decided to search it when they found that the
accused were perplexed. Therefore, it was a case of chance recovery
and there was no reasonable belief and the provisions of Section 42
of ND&PS Act do not apply to the present case.
26. It was submitted that the police had not associated
independent witnesses and this is fatal to the prosecution case.
31
Neutral Citation No. ( 2025:HHC:2252-DB )
This submission is not acceptable. It was laid down by the Hon'ble
Supreme Court in Kashmira Singh Versus State of Punjab 1999 (1)
SCC 130 that the police party is under no obligation to join
independent witnesses while going on patrolling duty and the
association of any person after effecting the recovery would be
meaningless. It was observed:
"3. Learned counsel for the appellant has taken us through
the evidence recorded by the prosecution as also the
judgment under appeal. Except for the comment that the
prosecution is supported by two police officials and not by
any independent witness, no other comment 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 in the
evidence of ASI Jangir Singh that after the recovery had been
effected, some people had passed by. Even so, obtaining
their counter-signatures on the documents already prepared
would not have lent any further credence to the prosecution
version."
27. In similar circumstances, it was laid down by this Court
in Chet Ram Vs State Criminal Appeal no. 151/2006 decided on
25.7.2018 that when the accused was apprehended after he tried to
flee on seeing the police, there was no necessity to associate any
person from the nearby village. It was observed: -
"(A)appellant was intercepted and search of his bag was
conducted on suspicion, when he turned back and tried to
flee, on seeing the police. Police officials did not have any
prior information nor did they have any reason to believe
32
Neutral Citation No. ( 2025:HHC:2252-DB )
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
scrutinizing the evidence of official witnesses, in a case
where independent witnesses are not associated,
contradictions and inconsistencies in the testimony of such
witnesses are required to be taken into account and given
due weightage, unless satisfactorily explained. Of course, it
is only the material contradictions and not the trivial ones,
which assume significance." (Emphasis supplied)
28. 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 scrutinize the statements of
prosecution witnesses carefully. It was observed a page 566:
"(C) Need for independent witnesses
33
Neutral Citation No. ( 2025:HHC:2252-DB )
19. It would be gainsaid that the lack of independent
witnesses is not fatal to the prosecution case. [Kalpnath
Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998 SC
201, para 9] However, such omissions cast an added duty on
courts to adopt a greater degree of care while scrutinising
the testimonies of the police officers, which if found reliable
can form the basis of a successful conviction."
29. 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 and
held by this Court in catena of decisions, examination of
independent witnesses is not an indispensable requirement
and such non-examination is not necessarily fatal to the
prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep
Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ].
13. In the recent decision in Surinder Kumar v. State of
Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 :
(2020) 1 SCC (Cri) 767], while considering somewhat similar
submission of non-examination of independent witnesses,
while dealing with the offence under the NDPS Act, in paras
15 and 16, this Court observed and held as under : (SCC p.
568)
"15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 :
(2011) 1 SCC (Cri) 1191], relied on by the counsel for the
respondent State also supports the case of the
prosecution. In the aforesaid judgment, this Court has
held that merely because the prosecution did not examine
any independent witness, would not necessarily lead to a
conclusion that the accused was falsely implicated. The
evidence of official witnesses cannot be distrusted and
disbelieved, merely on account of their official status.
34
Neutral Citation No. ( 2025:HHC:2252-DB )
16. In State (NCT of Delhi) v. Sunil [State (NCT of
Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it was
held as under : (SCC p. 655)
'It is an archaic notion that actions of the police officer
should be approached with initial distrust. It is time
now to start placing at least initial trust in the actions
and the documents made by the police. At any rate, the
court cannot start with the presumption that the
police records are untrustworthy. As a proposition of
law, the 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.'"
30. Similar is the judgment of this Court in Balwinder Singh
& Anr. Vs State of H.P., 2020 Criminal L.J. 1684, wherein it was held: -
"3. (iii) Learned defence counsel, contended that in the
instant case, no independent witness was associated by the
Investigating Officer, therefore, the prosecution case cannot
be said to have been proved by it in accordance with
provisions of the Act. Learned defence counsel, in support of
his contention, relied upon titled Krishan Chand versus State
of H.P.,2017 4 CriCC 531
3(iii)(d). It is by now well settled that prosecution case
cannot be disbelieved only because the independent
witnesses were not associated."
31. This position was reiterated in Kallu Khan v. State of
Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it was
held at page 204: -
"17. The issue raised regarding conviction solely relying
upon the testimony of police witnesses, without procuring
any independent witness, recorded by the two courts, has
also been dealt with by this Court in Surinder Kumar
[Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1
SCC (Cri) 767] holding that merely because independent
35
Neutral Citation No. ( 2025:HHC:2252-DB )
witnesses were not examined, the conclusion could not be
drawn that the accused was falsely implicated. Therefore,
the said issue is also well settled and in particular, looking at
the facts of the present case, when the conduct of the
accused was found suspicious and a chance recovery from
the vehicle used by 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.."
32. A similar view was taken in Kehar Singh v. State of H.P.,
2024 SCC OnLine HP 2825 wherein one of us (Tarlok Singh Chauhan
J) observed:
16. As regards non-association of the independent
witnesses, it is now well settled that non-association of the
independent witnesses or non-supporting of the
prosecution version by independent witnesses itself is not a
ground for acquittal of Appellants/accused. It is also well
settled that the testimonies of the official witnesses,
including police officials carry the same evidentiary value as
the testimony of any other person. The only difference is
that the Court has to be most circumspect while appreciating
the evidence of the official witnesses to rule out the
possibility of false implication of the accused, especially
when such a plea is specifically raised by the defence.
Therefore, while scrutinising the evidence of the official
witnesses, in cases where independent witnesses are not
associated, contradictions and inconsistencies in the
testimonies of such witnesses are required to be taken into
account and given due weightage, unless satisfactorily
explained. However, the contradiction must be material and
not trivial one, that alone would assume significance.
17. Evidently, this is a case of chance recovery, therefore, the
police party was under no obligation to join independent
witnesses while going on patrolling duty and the association
of any person after effecting the recovery would be
meaningless.
36
Neutral Citation No. ( 2025:HHC:2252-DB )
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 fact
situation was that the police party had laid the 'nakka'
and immediately thereafter had spotted the appellant at
some distance, who got perplexed and started walking
back. The conduct of the appellant was sufficient to raise
suspicion in the minds of police officials. At that stage,
had the appellant not been apprehended immediately,
police could have lost the opportunity to recover the
contraband. Looking from another angle, the relevance of
independent witnesses could be there, when such
witnesses were immediately available or had already been
associated at the place of 'nakka'. These, however, are
not mandatory conditions and will always depend on the
fact situation of each and every case. The reason is that
once the person is apprehended and is with police, a
subsequent association of independent witnesses, may
not be of much help. In such events, the manipulation, if
any, cannot be ruled out."
Xxxx
22. A similar reiteration of law can be found in a very recent
judgment of the Coordinate Bench of this Court in Cr. A. No.
202 of 2020, titled Dillo Begum v. State of H.P., decided on
27.03.2024."
33. Thus, in view of the binding precedents of this Court
and Hon'ble Supreme Court, the non-association of independent
witnesses is not fatal and the prosecution case cannot be discarded
due to the non-association of independent witnesses. However,
37
Neutral Citation No. ( 2025:HHC:2252-DB )
the Court will have to carefully scrutinize the testimonies of the
police officials.
34. It was submitted that there is a major contradiction in
the statements of the official witnesses. LHC Tarsem Lal (PW12)
stated that six packets wrapped in a Khaki Cello Tape were
recovered. He did not mention the recovery of the black bag which
was asserted by SI Mukesh Kumar (PW11) and SI Mahesh Kumar
(PW13). This is fatal to the prosecution case. This submission is not
acceptable. In the present case, the recovery was effected on
08.05.2010. LHC Tarsem Lal (PW12) made a statement on
11.04.2013 after the lapse of nearly three years from the date of
recovery. The people forget the details with time and the witnesses
cannot be expected to behave like a video recorder, who will
reproduce the incident in exact detail.
35. The principles of appreciation of ocular evidence were
explained by the Hon'ble Supreme Court in Balu Sudam Khalde v.
State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355, as
under at page 378: -
Appreciation of oral evidence
"25. The appreciation of ocular evidence is a hard task. There
is no fixed or straitjacket formula for appreciation of the
ocular evidence. The judicially evolved principles for
38
Neutral Citation No. ( 2025:HHC:2252-DB )
appreciation of ocular evidence in a criminal case can be
enumerated as under:
"I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinise the evidence more, particularly
keeping in view the deficiencies, drawbacks, and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general
tenor of the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
II. If the court before whom the witness gives evidence
had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court
which had not this benefit will have to attach due weight
to the appreciation of evidence by the trial court and
unless there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial
details.
III. When an eyewitness is examined at length, it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies in
the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching
the core of the case, hypertechnical approach by taking
sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer, not going to the
root of the matter would not ordinarily permit rejection
of the evidence as a whole.
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between
the evidence of two witnesses or as between two
39
Neutral Citation No. ( 2025:HHC:2252-DB )
statements of the same witness) is an unrealistic
approach for judicial scrutiny.
VI. By and large, a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
VII. Ordinarily, it so happens that a witness is overtaken
by events. The witness could not have anticipated the
occurrence, which so often has an element of surprise.
The mental faculties, therefore, cannot be expected to be
attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An object
or movement might emboss its image on one person's
mind, whereas it might go unnoticed on the part of
another.
IX. By and large, people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport
of the conversation. It is unrealistic to expect a witness to
be a human tape recorder.
X. In regard to the exact time of an incident or the time
duration of an occurrence, usually, people make their
estimates by guesswork on the spur of the moment at the
time of interrogation. And one cannot expect people to
make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals, which
varies from person to person.
XI. Ordinarily, a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused or mixed up when interrogated later
on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination by counsel and, out of nervousness,
mix up facts, get confused regarding the sequence of
events, or fill up details from imagination on the spur of
40
Neutral Citation No. ( 2025:HHC:2252-DB )
the moment. The subconscious mind of the witness
sometimes so operates on account of the fear of looking
foolish or being disbelieved, though the witness is giving
a truthful and honest account of the occurrence witnessed
by him.
XIII. A former statement, though seemingly inconsistent
with the evidence, need not necessarily be sufficient to
amount to contradiction. Unless the former statement
has the potency to discredit the later statement, even if
the later statement is at variance with the former to some
extent, it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,
(1983) 3 SCC 217: 1983 SCC (Cri) 728: AIR 1983 SC 753], Leela
Ram v. State of Haryana [Leela Ramv. State of Haryana,
(1999) 9 SCC 525: 2000 SCC (Cri) 222: AIR 1999 SC 3717]
and Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State
of U.P., 1959 SCC OnLine SC 17: AIR 1959 SC 1012]]
36. It was laid down by the Hon'ble Supreme Court in Karan
Singh v. State of U.P., (2022) 6 SCC 52: (2022) 2 SCC (Cri) 479: 2022
SCC OnLine SC 253 that the Court has to examine the evidence of the
witnesses to find out whether it has a ring of truth or not. The
Court should not give undue importance to omission,
contradictions and discrepancies which do not go to the heart of
the matter. It was observed at page 60: -
"38. From the evidence of Mahender Singh, PW 4, it appears
that no specific question was put to him as to whether the
appellant was present at the place of occurrence or not. This
Court in Rohtash Kumar v. State of Haryana [Rohtash
Kumar v. State of Haryana, (2013) 14 SCC 434: (2014) 4 SCC
(Cri) 238] held: (SCC p. 446, para 24)
41
Neutral Citation No. ( 2025:HHC:2252-DB )
"24. ... The court has to examine whether the evidence
read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
court to scrutinise the evidence more, particularly
keeping in view the deficiencies, drawbacks, and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general
tenor of the evidence given by the witnesses and whether
the earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the
heart of the matter and shake the basic version of the
prosecution witness."
39. Referring to Narayan Chetanram Chaudhary v. State of
Maharashtra [Narayan Chetanram Chaudhary v. State of
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], Mr
Tyagi argued that minor discrepancies caused by lapses in
memory were acceptable, contradictions were not. In this
case, there was no contradiction, only minor discrepancies.
40. In Kuriya v. State of Rajasthan [Kuriya v. State of
Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202], this
Court held: (SCC pp. 447-48, paras 30-32)
"30. This Court has repeatedly taken the view that the
discrepancies or improvements which do not materially
affect the case of the prosecution and are insignificant
cannot be made the basis for doubting the case of the
prosecution. The courts may not concentrate too much on
such discrepancies or improvements. The purpose is to
primarily and clearly sift the chaff from the grain and
find out the truth from the testimony of the witnesses.
Where it does not affect the core of the prosecution case,
such discrepancy should not be attached undue
significance. The normal course of human conduct would
be that while narrating a particular incident, there may
occur minor discrepancies. Such discrepancies may even,
in law, render credentials to the depositions. The
improvements or variations must essentially relate to the
material particulars of the prosecution case. The alleged
42
Neutral Citation No. ( 2025:HHC:2252-DB )
improvements and variations must be shown with
respect to the material particulars of the case and the
occurrence. Every such improvement, not directly related
to the occurrence, is not a ground to doubt the testimony
of a witness. The credibility of a definite circumstance of
the prosecution case cannot be weakened with reference
to such minor or insignificant improvements. Reference
in this regard can be made to the judgments of this Court
in Kathi Bharat Vajsur v. State of Gujarat [Kathi Bharat
Vajsur v. State of Gujarat, (2012) 5 SCC 724 : (2012) 2 SCC
(Cri) 740], Narayan Chetanram Chaudhary v. State of
Maharashtra [Narayan Chetanram Chaudhary v. State of
Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], Gura
Singh v. State of Rajasthan [Gura Singh v. State of
Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323]
and Sukhchain Singh v. State of Haryana [Sukhchain
Singh v. State of Haryana, (2002) 5 SCC 100: 2002 SCC (Cri)
961].
31. What is to be seen next is whether the version
presented in the Court was substantially similar to what
was said during the investigation. It is only when
exaggeration fundamentally changes the nature of the
case the Court has to consider whether the witness was
stating the truth or not. [Ref. Sunil Kumar v. State (NCT of
Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC
367: 2004 SCC (Cri) 1055] ].
32. These are variations which would not amount to any
serious consequences. The Court has to accept the normal
conduct of a person. The witness who is watching the
murder of a person being brutally beaten by 15 persons
can hardly be expected to state a minute-by-minute
description of the event. Everybody, and more
particularly a person who is known to or is related to the
deceased, would give all his attention to take steps to
prevent the assault on the victim and then to make every
effort to provide him with medical aid and inform the
police. The statements which are recorded immediately
upon the incident would have to be given a little leeway
with regard to the statements being made and recorded
43
Neutral Citation No. ( 2025:HHC:2252-DB )
with utmost exactitude. It is a settled principle of law that
every improvement or variation cannot be treated as an
attempt to falsely implicate the accused by the witness.
The approach of the court has to be reasonable and
practicable. Reference in this regard can be made
to Ashok Kumar v. State of Haryana [Ashok Kumar v. State
of Haryana, (2010) 12 SCC 350: (2011) 1 SCC (Cri) 266]
and Shivlal v. State of Chhattisgarh [Shivlal v. State of
Chhattisgarh, (2011) 9 SCC 561 : (2011) 3 SCC (Cri) 777]."
41. In Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State
of W.B., (2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685], this Court
held : (SCC pp. 666-67, paras 46 & 49)
"46. Then, it was argued that there are certain
discrepancies and contradictions in the statement of the
prosecution witnesses inasmuch as these witnesses have
given different timing as to when they had seen the
scuffling and strangulation of the deceased by the
accused. ... Undoubtedly, some minor discrepancies or
variations are traceable in the statements of these
witnesses. But what the Court has to see is whether these
variations are material and affect the case of the
prosecution substantially. Every variation may not be
enough to adversely affect the case of the prosecution.
***
49. It is a settled principle of law that the court should
examine the statement of a witness in its entirety and
read the said statement along with the statement of other
witnesses in order to arrive at a rational conclusion. No
statement of a witness can be read in part and/or in
isolation. We are unable to see any material or serious
contradiction in the statement of these witnesses which
may give any advantage to the accused."
42. In Rohtash Kumar v. State of Haryana [Rohtash
Kumar v. State of Haryana, (2013) 14 SCC 434 : (2014) 4 SCC
(Cri) 238], this Court held : (SCC p. 446, para 24)
"24. ... The court has to examine whether the evidence
read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
44
Neutral Citation No. ( 2025:HHC:2252-DB )
court to scrutinise the evidence more, particularly
keeping in view the deficiencies, drawbacks, and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general
tenor of the evidence given by the witnesses and whether
the earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go to the
heart of the matter and shake the basic version of the
prosecution witness."
37. Similar is the judgment in Anuj Singh v. State of Bihar,
2022 SCC OnLine SC 497: AIR 2022 SC 2817, wherein it was
observed:-
"[17] It is not disputed that there are minor contradictions
with respect to the time of the occurrence or injuries
attributed on hand or foot, but the constant narrative of the
witnesses is that the appellants were present at the place of
occurrence armed with guns and they caused the injury on
informant PW-6. However, the testimony of a witness in a
criminal trial cannot be discarded merely because of minor
contradictions or omissions, as observed by this court in
Narayan Chetanram Chaudhary &Anr. Vs. State of
Maharashtra, 2000 8 SCC 457. This Court, while considering
the issue of contradictions in the testimony while
appreciating the evidence in a criminal trial, held that only
contradictions in material particulars and not minor
contradictions can be ground to discredit the testimony of
the witnesses. The relevant portion of para 42 of the
judgment reads as under:
"42. Only such omissions which amount to a
contradiction in material particulars can be used to
discredit the testimony of the witness. The omission
in the police statement by itself would not necessarily
render the testimony of the witness unreliable. When
the version given by the witness in the court is
45
Neutral Citation No. ( 2025:HHC:2252-DB )
different in material particulars from that disclosed in
his earlier statements, the case of the prosecution
becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the statements
of truthful witnesses as memory sometimes plays
false, and the sense of observation differs from person
to person. The omissions in the earlier statement, if
found to be of trivial details, as in the present case, the
same would not cause any dent in the testimony of PW
2. Even if there is a contradiction of statement of a
witness on any material point, that is no ground to
reject the whole of the testimony of such witness."
38. Therefore, in view of the binding precedents of the
Hon'ble Supreme Court, the statements of the witnesses cannot be
discarded due to omissions, contradictions or discrepancies. The
Court has to see whether the discrepancies affect the prosecution
case adversely or not and whether they are related to the core of the
prosecution case or the details.
39. The failure to mention the bag by LHC Tarsem Lal
(PW12) will not be fatal because not only the recovery of the bag
was mentioned by SI Mukesh Kumar (PW11) and Inspector Mahesh
Kumar (PW13), but the bag was also mentioned in the recovery
memo (Ext.PW11/A) and the rukka (Ext.PW7/A). When the case
property was produced before the Court during the examination of
SI Mukesh Kumar (PW11), a bag (Ext.P10) was found in the parcel.
Therefore, the recovery of the bag is proved by two witnesses,
46
Neutral Citation No. ( 2025:HHC:2252-DB )
contemporaneous documents and the production of the bag before
the Court and cannot be doubted.
40. It was submitted that the result of analysis (Ext.PX)
does not mention the bag and this makes the prosecution case
regarding the recovery of the bag highly suspect. This submission
cannot be accepted. The report of the analysis does not mention
the contents of the parcel when it was opened by the chemical
analyst but only mentions the description of the parcel. Therefore,
the failure to mention the bag by the chemical analyst will not be
material in the present case.
41. It was submitted that rukka (Ext.PW7/A) mentions that
accused Pardeep Kumar revealed that he had purchased the vehicle
but had not got the documents transferred in his name. This
version was changed in the Court and SI Mukesh Kumar (PW11)
stated that the person sitting in the front seat disclosed that the
vehicle in question was purchased by the driver (accused Anuj
Kumar) but the documents of the vehicle were not transferred in
his name. This is contrary to the prosecution case and the
statement of this witness recorded under Section 161 of Cr.P.C. This
submission will not help the defence. The attention of SI Mukesh
Kumar (PW11) was not drawn to his previous statement, wherein it
47
Neutral Citation No. ( 2025:HHC:2252-DB )
was mentioned that accused Pardeep Kumar had revealed that he
had purchased the vehicle. Section 145 of the Indian Evidence Act
provides that the attention of the witness should be drawn to the
previous statement with which, he is sought to be contradicted.
The previous statement is also required to be proved as per the law.
It was laid down by the Hon'ble Supreme Court in Binay Kumar
Singh Versus State of Bihar, 1997 (1) SCC 283, that if it is intended to
contradict a witness, his attention must be drawn towards the
previous statement. It was observed: -
"11. The credit of a witness can be impeached by proof of any
statement which is inconsistent with any part of his evidence
in Court. This principle is delineated in S. 155 (3) of the
Evidence Act and it must be borne in mind when reading S.
145 which consists of two limbs. It is provided in the first
limb of S.145 that a witness may be cross-examined as to the
previous statement made by him without such writing being
shown to him but the second limb provides that "if it is
intended to contradict him by the writing his attention must
before the writing can be provided, be called to those parts of
it which are to be used for the purpose of contradicting him."
There is thus a distinction between the two vivid limbs,
though subtle it may be. The first limb does not envisage
impeaching the credit of a witness, but it merely enables the
opposite party to cross-examine the witness with reference
to the previous statements made by him. He may at that
stage succeed in eliciting materials to his benefit through
such cross-examination even without resorting to the
procedure laid down in the second limb. But if the witness
disowns having made any statement which is inconsistent
with his present stand his testimony in Court on that score
would not be vitiated until the cross-examiner proceeds to
comply with the procedure prescribed in the second limb of
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Neutral Citation No. ( 2025:HHC:2252-DB )
S. 145.
12. In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose, J.
pointed out in paragraph 25 that during the cross-
examination of the witnesses concerned the formalities
prescribed by S. 145 are complied with. The cross-
examination, in that case, indicated that every circumstance
intended to be used as a contradiction was put to him point
by point and passage by passage. Learned Judges were called
upon to deal with an argument that witnesses’ attention
should have been specifically drawn to that passage in
addition thereto. Their Lordships were, however, satisfied in
that case that the procedure adopted was in substantial
compliance with S. 145, and hence held that all that is
required is that the witness must be treated fairly and must
be afforded a reasonable opportunity of explaining the
contradictions after his attention has been drawn to them in
a fair and reasonable manner. On the facts of that case, there
is no dispute with the proposition laid therein.
13. So long as the attention of PW 32 (Sukhdev Bhagat) was
not drawn to the statement attributed to him as recorded by
DW-10 (Nawal Kishore Prasad) we are not persuaded to
reject the evidence of PW-32 that he gave Ex. 14 statement at
the venue of occurrence and that he had not given any other
statement earlier thereto.”
42. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760 wherein it was observed:
“7. When the two statements cannot stand together, they
become contradictory statements. When a witness makes a
statement in his evidence before the Court which is
inconsistent with what he has stated in his statement
recorded by the Police, there is a contradiction. When a
prosecution witness whose statement under Section 161(1) or
Section 164 of CrPC has been recorded states factual aspects
before the Court which he has not stated in his prior
statement recorded under Section 161(1) or Section 164 of
CrPC, it is said that there is an omission. There will be an
omission if the witness has omitted to state a fact in his
49
Neutral Citation No. ( 2025:HHC:2252-DB )statement recorded by the Police, which he states before the
Court in his evidence. The explanation to
Section 162 CrPC indicates that an omission may amount to a
contradiction when it is significant and relevant. Thus, every
omission is not a contradiction. It becomes a contradiction
provided it satisfies the test laid down in the explanation
under Section 162. Therefore, when an omission becomes a
contradiction, the procedure provided in the proviso to sub-
Section (1) of Section 162 must be followed for contradicting
witnesses in the cross-examination.
8. As stated in the proviso to sub-Section (1) of section 162,
the witness has to be contradicted in the manner provided
under Section 145 of the Evidence Act. Section 145 reads
thus:
“145. Cross-examination as to previous statements
in writing.–A witness may be cross-examined as to
previous statements made by him in writing or
reduced into writing, and relevant to matters in
question, without such writing being shown to him, or
being proved; but, if it is intended to contradict him by
the writing, his attention must, before the writing can
be proved, be called to those parts of it which are to be
used for the purpose of contradicting him.”
The Section operates in two parts. The first part provides
that a witness can be cross-examined as to his previous
statements made in writing without such writing being
shown to him. Thus, for example, a witness can be cross-
examined by asking whether his prior statement exists. The
second part is regarding contradicting a witness. While
confronting the witness with his prior statement to prove
contradictions, the witness must be shown his prior
statement. If there is a contradiction between the statement
made by the witness before the Court and what is recorded in
the statement recorded by the police, the witness’s attention
must be drawn to specific parts of his prior statement, which
are to be used to contradict him. Section 145 provides that
the relevant part can be put to the witness without the
writing being proved. However, the previous statement used
to contradict witnesses must be proved subsequently. Only if
50
Neutral Citation No. ( 2025:HHC:2252-DB )
the contradictory part of his previous statement is proved
the contradictions can be said to be proved. The usual
practice is to mark the portion or part shown to the witness
of his prior statement produced on record. Marking is done
differently in different States. In some States, practice is to
mark the beginning of the portion shown to the witness with
an alphabet and the end by marking with the same alphabet.
While recording the cross-examination, the Trial Court must
record that a particular portion marked, for example, as AA
was shown to the witness. Which part of the prior statement
is shown to the witness for contradicting him has to be
recorded in the cross-examination. If the witness admits to
having made such a prior statement, that portion can be
treated as proved. If the witness does not admit the portion
of his prior statement with which he is confronted, it can be
proved through the Investigating Officer by asking whether
the witness made a statement that was shown to the witness.
Therefore, if the witness is intended to be confronted with
his prior statement reduced into writing, that particular part
of the statement, even before it is proved, must be
specifically shown to the witness. After that, the part of the
prior statement used to contradict the witness has to be
proved. As indicated earlier, it can be treated as proved if the
witness admits to having made such a statement, or it can be
proved in the cross-examination of the concerned police
officer. The object of this requirement in Section 145 of the
Evidence Act of confronting the witness by showing him the
relevant part of his prior statement is to give the witness a
chance to explain the contradiction. Therefore, this is a rule
of fairness.
9. If a former statement of the witness is inconsistent with
any part of his evidence given before the Court, it can be used
to impeach the credit of the witness in accordance with
clause (3) of Section 155 of the Evidence Act, which reads
thus:
“155. Impeaching credit of witness. — The credit of a
witness may be impeached in the following ways by
the adverse party, or, with the consent of the Court, by
the party who calls him–
51
Neutral Citation No. ( 2025:HHC:2252-DB )
(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statements inconsistent
with any part of his evidence which is liable
to be contradicted.”
It must be noted here that every contradiction or omission is
not a ground to discredit the witness or to disbelieve his/her
testimony. A minor or trifle omission or contradiction
brought on record is not sufficient to disbelieve the witness’s
version. Only when there is a material contradiction or
omission can the Court disbelieve the witness’s version
either fully or partially. What is a material contradiction or
omission depending upon the facts of each case? Whether an
omission is a contradiction also depends on the facts of each
individual case.
10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar Singh v. State of
U.P.1959 Supp (2) SCR 875 Paragraph 13 of the said decision
reads thus:
“13. The learned counsel’s first argument is based upon
the words “in the manner provided by Section 145 of
the Indian Evidence Act, 1872″ found in Section 162 of
the Code of Criminal Procedure. Section 145 of the
Evidence Act, it is said, empowers the accused to put all
relevant questions to a witness before his attention is
called to those parts of the writing with a view to
contradict him. In support of this contention, reliance is
placed upon the judgment of this Court in Shyam
Singh v. State of Punjab [(1952) 1 SCC 514: 1952 SCR 812].
Bose, J. describes the procedure to be followed to
contradict a witness under Section 145 of the Evidence
Act thus at p. 819:
Resort to Section 145 would only be necessary
if the witness denies that he made the former
statement. In that event, it would be necessary
to prove that he did, and if the former statement
was reduced to writing, then Section 145 requires
that his attention must be drawn to these parts
52
Neutral Citation No. ( 2025:HHC:2252-DB )which are to be used for contradiction. But that
position does not arise when the witness admits
the former statement. In such a case all that is
necessary is to look to the former statement of
which no further proof is necessary because of
the admission that it was made.”
It is unnecessary to refer to other cases wherein
a similar procedure is suggested for putting
questions under Section 145 of the Indian Evidence
Act, for the said decision of this Court and similar
decisions were not considering the procedure in a
case where the statement in writing was intended
to be used for contradiction under Section 162 of
the Code of Criminal Procedure. Section 145 of the
Evidence Act is in two parts: the first part enables the
accused to cross-examine a witness as to a previous
statement made by him in writing or reduced to
writing without such writing being shown to him; the
second part deals with a situation where the cross-
examination assumes the shape of contradiction: in
other words, both parts deal with cross-examination;
the first part with cross-examination other than by
way of contradiction, and the second with cross-
examination by way of contradiction only. The
procedure prescribed is that, if it is intended to
contradict a witness by the writing, his attention must,
before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him. The proviso to Section 162 of
the Code of Criminal Procedure only enables the
accused to make use of such a statement to contradict
a witness in the manner provided by Section 145 of the
Evidence Act. It would be doing violence to the
language of the proviso if the said statement be
allowed to be used for the purpose of cross-examining
a witness within the meaning of the first part of
Section 145 of the Evidence Act. Nor are we impressed
by the argument that it would not be possible to
invoke the second part of Section 145 of the Evidence
Act without putting relevant questions under the first
53
Neutral Citation No. ( 2025:HHC:2252-DB )
part thereof. The difficulty is more imaginary than
real. The second part of Section 145 of the Evidence Act
clearly indicates the simple procedure to be followed.
To illustrate: A says in the witness box that B stabbed
C; before the police, he had stated that D stabbed C. His
attention can be drawn to that part of the statement
made before the police which contradicts his
statement in the witness box. If he admits his previous
statement, no further proof is necessary; if he does not
admit it, the practice generally followed is to admit it
subject to proof by the police officer. On the other
hand, the procedure suggested by the learned
counsel may be illustrated thus: If the witness is
asked “Did you say before the police officer that
you saw a gas light?” and he answers “Yes”, then
the statement which does not contain such recital
is put to him as a contradiction. This procedure
involves two fallacies: one is it enables the accused
to elicit by a process of cross-examination what the
witness stated before the police officer. If a police
officer did not make a record of a witness’s
statement, his entire statement could not be used
for any purpose, whereas if a police officer
recorded a few sentences, by this process of cross-
examination, the witness’s oral statement could be
brought on record. This procedure, therefore,
contravenes the express provision of Section 162 of
the Code. The second fallacy is that by the
illustration given by the learned counsel for the
appellants, there is no self-contradiction of the
primary statement made in the witness box, for the
witness has yet not made on the stand any
assertion at all which can serve as the basis. The
contradiction, under the section, should be
between what a witness asserted in the witness box
and what he stated before the police officer, and
not between what he said he had stated before the
police officer and what he actually made before
him. In such a case the question could not be put at
all: only questions to contradict can be put and the
54
Neutral Citation No. ( 2025:HHC:2252-DB )
question here posed does not contradict; it leads to
an answer which is contradicted by the police
statement. This argument of the learned counsel
based upon Section 145 of the Evidence Act is,
therefore, not of any relevance in considering the
express provisions of Section 162 of the Code of
Criminal Procedure.” (emphasis added)
This decision is a locus classicus, which will continue to guide
our Trial Courts. In the facts of the case, the learned Trial
Judge has not marked those parts of the witnesses’ prior
statements based on which they were sought to be
contradicted in the cross-examination.”
43. It was held in Anees v. State (NCT of Delhi), 2024 SCC
OnLine SC 757 that the Courts cannot suo motu take cognizance of
the contradiction and the same has to be brought on record as per
the law. It was observed:
“64. The court cannot suo motu make use of statements to
police not proved and ask questions with reference to them
which are inconsistent with the testimony of the witness in
the court. The words ‘if duly proved’ used in Section 162 Cr.
P.C. clearly show that the record of the statement of
witnesses cannot be admitted in evidence straightaway, nor
can be looked into, but they must be duly proved for the
purpose of contradiction by eliciting admission from the
witness during cross-examination and also during the
cross-examination of the Investigating Officer. The
statement before the Investigating Officer can be used for
contradiction but only after strict compliance with Section
145 of the Evidence Act, that is, by drawing attention to the
parts intended for contradiction.
65. Section 145 of the Evidence Act reads as under:
“145. Cross-examination as to previous statements in
writing.– A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
55
Neutral Citation No. ( 2025:HHC:2252-DB )being shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the
writing can be proved, be called to those parts of it which are
to be used for the purpose of contradicting him.”
66. Under Section 145 of the Evidence Act when it is intended
to contradict the witness by his previous statement reduced
into writing, the attention of such witness must be called to
those parts of it which are to be used for the purpose of
contradicting him, before the writing can be used. While
recording the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police statement
with which it is intended to contradict the witness is brought
to the notice of the witness in his cross-examination. The
attention of the witness is drawn to that part and this must
be reflected in his cross-examination by reproducing it. If
the witness admits the part intended to contradict him, it
stands proved and there is no need for further proof of
contradiction and it will be read while appreciating the
evidence. If he denies having made that part of the
statement, his attention must be drawn to that statement
and must be mentioned in the deposition. By this process,
the contradiction is merely brought on record, but it is yet to
be proved. Thereafter, when the Investigating Officer is
examined in the court, his attention should be drawn to the
passage marked for the purpose of contradiction, it will then
be proved in the deposition of the Investigating Officer who,
again, by referring to the police statement will depose about
the witness having made that statement. The process again
involves referring to the police statement and culling out the
part with which the maker of the statement was intended to
be contradicted. If the witness was not confronted with that
part of the statement with which the defence wanted to
contradict him, then the court cannot suo motu make use of
statements to police not proved in compliance with Section
145 of the Evidence Act, that is, by drawing attention to the
parts intended for contradiction.” [See: V.K. Mishra v. State of
Uttarakhand : ((2015) 9 SCC 588]
56
Neutral Citation No. ( 2025:HHC:2252-DB )
44. In the present case, the defence has not complied with
the requirements of Section 145 of the Indian Evidence Act and the
testimony of Mukesh Kumar (PW11) cannot be discarded due to
previous inconsistent statement.
45. The learned Trial Court held that the presence of three
persons in the vehicle was highly doubtful because the prosecution
version regarding the sale of the vehicle to accused Pardeep Kumar
was not established by examining the original owner. This finding
cannot be sustained; first, it overlooks the statement made by the
accused under Section 313 Cr.P.C in which they admitted that they
have travelled in the vehicle being driven by accused Anuj Kumar to
Manali. Hence the fact that accused Pardeep Kumar and Pradeep
Saini were traveling with accused Anuj was never in dispute.
Secondly, the Court is concerned with the possession of the
contraband and the ownership of the vehicle in which the
contraband is being transported is immaterial. It was laid down by
the Hon’ble Supreme Court in Rizwan Khan v. State of Chhattisgarh,
(2020) 9 SCC 627: 2020 SCC OnLine SC 730 that the prosecution is
not required to prove the ownership of the vehicle in which the
narcotics are being transported. It was observed at page 635:
“17. Now so far as the submission on behalf of the accused
that the ownership of the motorcycle (vehicle) has not been
57
Neutral Citation No. ( 2025:HHC:2252-DB )established and proved and/or that the vehicle has not been
recovered is concerned, it is required to be noted that in the
present case, the appellant and the other accused persons
were found on the spot with the contraband articles in the
vehicle. To prove the case under the NDPS Act, the
ownership of the vehicle is not required to be established
and proved. It is enough to establish and prove that the
contraband articles were found from the accused in the
vehicle purchased by the accused. Ownership of the vehicle
is immaterial. What is required to be established and proved
is the recovery of the contraband articles and the
commission of an offence under the NDPS Act. Therefore,
merely because the ownership of the vehicle is not
established and proved and/or the vehicle is not recovered
subsequently, the trial is not vitiated, while the prosecution
has been successful in proving and establishing the recovery
of the contraband articles from the accused on the spot.”
46. Hence the prosecution case could not have been
discarded due to the failure to interrogate the owner of the vehicle.
47. It was submitted that SI Mukesh Kumar (PW11) had not
produced the seal before the Court and this is fatal to the
prosecution 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:
58
Neutral Citation No. ( 2025:HHC:2252-DB )
“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 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.”
48. 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 Constable Surender 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, 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 were 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 been
produced in the Court is, therefore, perverse in view of the
59
Neutral Citation No. ( 2025:HHC:2252-DB )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.”
49. 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 seals were produced before the
Court was perverse.
50. In the present case, the seal impression was obtained on
the NCB-1 Form and it was produced before the Court. The Court
had NCB-1 Form to compare the seal and determine whether the
seals were intact or tampered with. Hence the failure to produce
the seal in the Court will not affect the prosecution case.
51. The learned Trial Court held that there is no evidence
that sample seals were sent to the SFSL and SFSL had nothing to
compare the seal impression on the parcel. The learned Trial Court
overlooked the fact that as per the result of analysis (Ext. PX), the
seals were tallied with the specimen seals sent by the forwarding
authority on the NCB-1 Form. NCB-1 Form (Ext.PW5/G) bears the
seal impression ‘A’ and ‘T’. It also bears the signatures of the
Assistant Chemical Examiner which shows that this Form was in
fact received by the Assistant Chemical Examiner. Since the seal
impression were visible on the NCB-1 Form, therefore, the finding
60
Neutral Citation No. ( 2025:HHC:2252-DB )
recorded by the learned Trial Court that the chemical analyst did
not have the seal impression for comparison is incorrect.
52. The learned Trial Court held that it is highly unlikely
that the accused would transport the charas in the dickey which
could be opened by just pushing it. This finding is not sustainable.
The prosecution witnesses consistently stated that the accused told
them that the dickey was defective which shows that an attempt
was made to mislead the police. The police did not believe this
statement and pushed the dickey which opened. The charas was
not lying exposed in the dickey but was concealed beneath the mat
with the help of the screws. Hence, the charas was not being
transported in a manner in which it could have been found by any
person.
53. The statements of the official witnesses are consistent
and there is nothing in their cross-examinations to show that they
were making a false statement. The accused have also not stated in
their statements recorded under Section 313 Cr.P.C that police had
any motive to falsely implicate them. They simply stated that
police implicated them because recovery was effected from accused
Anuj Kumar. However, no reason was given as to why the police
would do so. It was laid down by the Hon’ble Supreme Court in
61
Neutral Citation No. ( 2025:HHC:2252-DB )
Kripal Singh v. State of Rajasthan, (2019) 5 SCC 646: (2019) 2 SCC
(Cri) 680: 2019 SCC OnLine SC 207 that the testimonies of the police
officials cannot be ignored because they are police officials. It was
observed at page 656:
“21. The submission of the learned Senior Counsel for the
appellant that recovery has not been proved by any
independent witness is of no substance for the reason that in
the absence of an independent witness to support the
recovery in substance cannot be ignored unless proved to the
contrary. There is no such legal proposition that the evidence
of police officials, unless supported by an independent
witness, is unworthy of acceptance or the evidence of police
officials can be outrightly disregarded.”
54. Therefore, the learned Trial Court had erred in
discarding the testimonies of the police officials.
55. The integrity of the case property has also been
established. The report of the analysis shows that the seals were
found intact and were compared by the chemical analyst with the
seals sent with NCB-1 Form. 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 separately sent tallied with the
specimen impression of a seal taken separately. Thus, there
was no tampering with the seal, and the seal impressions
62
Neutral Citation No. ( 2025:HHC:2252-DB )were separately taken and sent to the expert also.”
56. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
“It has also come on evidence that till the date the parcels
of the sample were received by the Chemical Examiner, the
seal put on the said parcels was intact. That itself proves
and establishes that there was no tampering with the
previously mentioned seal in the sample at any stage, and
the sample received by the analyst for chemical
examination contained the same opium, which was
recovered from the possession of the appellant. In that view
of the matter, a delay of about 40 days in sending the
samples did not and could not have caused any prejudice to
the appellant.”
57. 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 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
63
Neutral Citation No. ( 2025:HHC:2252-DB )examination when it could not be proved that the seal of the
sample was in any manner tampered with. The seal having
been found intact at the time of the examination by the
Chemical Examiner and the said fact having been recorded in
his report, a mere observation by the High Court that the
case property might have been tampered with, in our
opinion, is based on surmises and conjectures and cannot
take the place of proof.
17. We may at this stage refer to a decision of this Court in
Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in
which there was a delay of about 40 days in sending the
sample to the laboratory after the same was seized. In the
said decision, it was held that in view of cogent and reliable
evidence that the opium was seized and sealed and that the
samples were intact till they were handed over to the
Chemical Examiner, the delay itself was held to be not fatal
to the prosecution case. In our considered opinion, the ratio
of the aforesaid decision squarely applies to the facts of the
present case in this regard.
18. The case property was produced in the Court, and there is
no evidence to show that the same was ever tampered with.”
58. Similar is the judgment of the Hon’ble Supreme Court
in Surinder Kumar vs State of Punjab (2020) 2 SCC 563, wherein it
was held:-
“10. According to learned senior counsel for the appellant,
Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3) handed
over the case property for producing the same before the
Illaqa Magistrate and who returned the same to him after
such production was not examined, as such, link evidence
was incomplete. In this regard, it is to be noticed that Yogi
Raj SHO handed over the case property to Joginder Singh,
ASI, for production before the Court. After producing the
case property before the Court, he returned the case property
to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be
noticed that Joginder Singh, ASI, was not in possession of
64
Neutral Citation No. ( 2025:HHC:2252-DB )the seals of either the investigating officer or Yogi Raj, SHO.
He produced the case property before the Court on
13.09.1996 vide application Ex.P-13. The concerned Judicial
Magistrate of First Class, after verifying the seals on the case
property, passed the order Ex.P-14 to the effect that since
there was no judicial malkhana at Abohar, the case property
was ordered to be kept in safe custody, in Police Station
Khuian Sarwar till further orders. Since Joginder Singh, ASI,
was not in possession of the seals of either the SHO or the
Investigating Officer, the question of tampering with the
case property by him did not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate, with
the seals intact, to Yogi Raj, SHO. In that view of the matter,
the Trial Court and the High Court have rightly held that the
non-examination of Joginder Singh did not, in any way,
affect the case of the prosecution. Further, it is evident from
the report of the Chemical Examiner, Ex.P-10, that the sample
was received with seals intact and that the seals on the sample
tallied with the sample seals. In that view of the matter, the
chain of evidence was complete.” (Emphasis supplied)
59. Therefore, the prosecution version is to be accepted as
correct that the case property remained intact till its analysis at
SFSL, Junga.
60. The learned Trial Court held that the report of the
analysis did not establish the presence of cannabinoids including
tetrahydrocannabinol. Hence, the substance analyzed could not be
said to be charas. This finding is not sustainable. It was laid down
by a Full Bench of this Court in State of H.P. v. Mehboon Khan, 2013
SCC OnLine HP 4080: 2014 Cri LJ 705: (2014) 2 RCR (Cri) 447: (2014) 2
Latest HLJ 900 that it is not essential to mention in the report of the
65
Neutral Citation No. ( 2025:HHC:2252-DB )
analysis that the sample contained tetrahydrocannabinol to prove
that it was charas. It was observed at page 478:
55. This takes us to the Reports in Sunil’s case and its
connected Appeals reproduced supra. The Reports on the
face of it amply demonstrate that the Chemical Examiners-
Shri R.S. Verma & Shri A.K. Wasuja, who have analyzed the
samples of Charas in all the cases, have made specific
mention to various tests they conducted in order to arrive at
a conclusion that the samples they analyzed were that of
Charas. The Experts, therefore, were well within the legal
norms while certifying the samples they analyzed to be that
of Charas.
Our Opinion:
(a) After taking into consideration Section 293 of the
Code of Criminal Procedure, Sections 45 & 46 of the
Indian Evidence Act and the Law laid down by the apex
Court as well as various High Courts discussed in detail
hereinabove, we conclude that on account of non-
consideration of the same by the Division Bench, which
has rendered the Judgment in Sunil’s case, correct law on
the Expert Opinion and the Reports assigned by the
Scientific Expert after analyzing the exhibit has not been
laid down.
(b) We further conclude that on account of non-
consideration of various Reports of the United Nations
Office on Drugs and Crime including the Single
Convention on Narcotic Drugs, 1961 and to the contrary
placing reliance on the text books, which basically are on
Medical jurisprudence, the Division Bench in Sunil’s case
failed to assign correct meaning to ‘Charas’ and
‘Cannabis resin’, the necessary constituents of an offence
punishable under Section 20 of the NDPS Act.
(c) In view of the detailed discussion hereinabove, the
Division Bench while deciding Sunil’s case supra has
definitely erred in taking note of the percentage of
tetrahydrocannabinol in three forms of
Cannabis i.e. Bhang, Ganja and Charas and hence,
66
Neutral Citation No. ( 2025:HHC:2252-DB )
concluded erroneously that without there being no
reference of the resin contents in the Reports assigned by
the Chemical Examiners in those cases, the contraband
recovered is not proved to be Charas, as in our opinion,
the Charas is a resinous mass and the presence of resin in
the stuff analyzed without there being any
evidence qua the nature of the neutral substance, the
entire mass has to be taken as Charas.
(d) There is no legal requirement of the presence of
particular percentage of resin to be there in the sample
and the presence of the resin in purified or crude form is
sufficient to hold that the sample is that of Charas. The
law laid down by the Division Bench in Sunil’s case that
‘for want of percentage of tetrahydrocannabinol or resin
contents in the samples analyzed, the possibility of the
stuff recovered from the Accused persons being only
Bhang i.e. the dried leaves of Cannabis plant, possession
of which is not an offence, cannot be ruled out’, is not a
good nor any such interpretation is legally possible. The
percentage of resin contents in the stuff analyzed is not a
determinative factor of small quantity, above smaller
quantity and less than commercial quantity and the
commercial quantity. Rather, if in the entire stuff
recovered from the Accused, the resin of Cannabis is
found present on analysis, the whole of the stuff is to be
taken to determine the quantity i.e. smaller, above
smaller but less than commercial and commercial, in
terms of the Notification below Section 2 (vii a) & (xxiii a)
of the Act.
(e) We have discussed the Single Convention on Narcotic
Drugs, 1961 in detail hereinabove and noted that resin
becomes Cannabis resin only when it is separated from
the plant. The separated resin is Cannabis resin not only
when it is in ‘purified’ form, but also when in ‘crude’
form or still mixed with other parts of the plant.
Therefore, the resin mixed with other parts of the
plant i.e. in ‘crude’ form is also Charas within the
meaning of the Convention and the Legislature in its
wisdom has never intended to exclude the weight of the
67
Neutral Citation No. ( 2025:HHC:2252-DB )
mixture i.e. other parts of the plant in the resin unless or
until such mixture proves to be some other neutral
substance and not that of other parts of the Cannabis
plant. Once the Expert expressed the opinion that after
conducting the required tests, he found the resin present
in the stuff and as Charas is a resinous mass and after
conducting tests if in the opinion of the Expert, the entire
mass is a sample of Charas, no fault can be found with the
opinion so expressed by the Expert nor would it be
appropriate to embark upon the admissibility of the
Report on any ground, including non-mentioning of the
percentage of tetrahydrocannabinol or resin contents in
the sample.
(f) We are also not in agreement with the findings
recorded by the Division Bench in Sunil’s case that “the
mere presence of tetrahydrocannabinol and cystolithic
hair without there being any mention of the percentage
of tetrahydrocannabinol in a sample of Charas is not an
indicator of the entire stuff analyzed to be Charas” for the
reason that the statute does not insist for the presence of
percentage in the stuff of Charas and the mere presence
of tetrahydrocannabinol along with cystolithic hair in
sample stuff is an indicator of the same being the resin of
Cannabis plant because the cystolithic hair are present
only in the Cannabis plant. When after observing the
presence of tetrahydrocannabinol and cystolithic hair,
the Expert arrives at a conclusion that the sample
contains the resin contents, it is more than sufficient to
hold that the sample is of Charas and the view so
expressed by the Expert normally should be honoured
and not called into question. Of course, neutral material
which is not obtained from Cannabis plant cannot be
treated as the resin of the Cannabis plants. The resin
rather must have been obtained from the Cannabis plants
and may be in ‘crude’ form or ‘purified’ form. In common
parlance, Charas is a handmade drug made from the
extract of the Cannabis plant. Therefore, any mixture
with or without any neutral material of any of the forms
of Cannabis is to be considered as a contraband article. No
68
Neutral Citation No. ( 2025:HHC:2252-DB )
concentration and percentage of resin is prescribed for
‘Charas’ under the Act.
(g) We further hold that in any case the Judgment
in Sunil’s case is a Judgment in personam and not a
Judgment in rem and as such its universal application in
later Judgments rendered by this Court and also by the
Trial Courts, without appreciation of the given facts and
circumstances of each case and the evidence available on
record, was not legally permissible.”
61. Thus, the learned Trial Court erred in holding that the
substance was not proved to be charas.
62. Therefore, it was duly proved on record that the police
had intercepted a vehicle in which accused Pardeep Kumar and
accused Pradeep Saini were travelling and from which 1.88 kgs of
charas was recovered. The accused were travelling together and
would be in possession of the charas. In Madan Lal versus State of
H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874,
the contraband was recovered from a vehicle, and it was held that
all the occupants of the vehicle would be in conscious possession of
the contraband. It was observed:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The facts
which can be culled out from the evidence on record are that
all the accused persons were travelling in a vehicle, and as
noted by the trial court, they were known to each other, and
it has not been explained or shown as to how they travelled
together from the same destination in a vehicle which was
not a public vehicle.
69
Neutral Citation No. ( 2025:HHC:2252-DB )
20. Section 20(b) makes possession of contraband articles an
offence. Section 20 appears in Chapter IV of the Act, which
relates to offences for possession of such articles. It is
submitted that in order to make the possession illicit, there
must be conscious possession.
21. It is highlighted that unless the possession was coupled
with the requisite mental element, i.e. conscious possession
and not mere custody without awareness of the nature of
such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
which assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in Supdt. &
Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52]
to work out a completely logical and precise definition of
“possession” uniformly applicable to all situations in the
context of all statutes.
23. The word “conscious” means awareness about a
particular fact. It is a state of mind which is deliberate or
intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194:
1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given
case need not be physical possession but can be
constructive, having power and control over the article in
the case in question, while the person to whom physical
possession is given holds it subject to that power or control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC
498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was
observed that where a person keeps his firearm in his
mother’s flat, which is safer than his own home, he must be
considered to be in possession of the same.
(See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB
966 : (1976) 2 WLR 361 (QBD)] .)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
70
Neutral Citation No. ( 2025:HHC:2252-DB )special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54, where also presumption is available to be drawn from
possession of illicit articles.
27. In the factual scenario of the present case, not only
possession but conscious possession has been established. It
has not been shown by the accused-appellants that the
possession was not conscious in the logical background of
Sections 35 and 54 of the Act.”
63. It was laid down by the Hon’ble Supreme Court in Union
of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri)
721: 2021 SCC OnLine SC 1237 that a person is in possession if he is
in a position to exercise control over the article. It was observed on
page 111:
“25. We shall deal with each of these circumstances in turn.
The respondent has been accused of an offence under
Section 8 of the NDPS Act, which is punishable under
Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the
Act prohibits a person from possessing any narcotic drug or
psychotropic substance. The concept of possession recurs in
Sections 20 to 22, which provide for punishment for
offences under the Act. In Madan Lal v. State of H.P. [Madan
Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664] this
Court held that: (SCC p. 472, paras 19-23 & 26)“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on record
are that all the accused persons were travelling in a
vehicle, and as noted by the trial court, they were known
to each other, and it has not been explained or shown as
to how they travelled together from the same destination
in a vehicle which was not a public vehicle.
71
Neutral Citation No. ( 2025:HHC:2252-DB )
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act,
which relates to offences for possession of such articles.
It is submitted that in order to make the possession illicit,
there must be a conscious possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element, i.e. conscious
possession and not mere custody without awareness of
the nature of such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
which assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in Supt. &
Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil
Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038] to
work out a completely logical and precise definition of
“possession” uniform[ly] applicable to all situations in
the context of all statutes.
23. The word “conscious” means awareness about a
particular fact. It is a state of mind which is deliberate or
intended.
***
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of
Section 54 where also presumption is available to be
drawn from possession of illicit articles.”
26. What amounts to “conscious possession” was also
considered in Dharampal Singh v. State of Punjab [Dharampal
Singh v. State of Punjab, (2010) 9 SCC 608 : (2010) 3 SCC (Cri)
1431], where it was held that the knowledge of possession of
contraband has to be gleaned from the facts and
circumstances of a case. The standard of conscious
72
Neutral Citation No. ( 2025:HHC:2252-DB )
possession would be different in the case of a public
transport vehicle with several persons as opposed to a
private vehicle with a few persons known to one another. In
Mohan Lal v. State of Rajasthan [Mohan Lal v. State of
Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881], this Court
also observed that the term “possession” could mean
physical possession with animus; custody over the
prohibited substances with animus; exercise of dominion
and control as a result of concealment; or personal
knowledge as to the existence of the contraband and the
intention based on this knowledge.”
64. In the present case, both accused Pradeep Saini and
Pradeep Kumar did not lead any evidence to rebut the
presumption, and they are liable for the conscious possession of
1.88 kgs of charas.
65. The judgments in State of H.P. versus Rajesh Kumar @
Raju 2024:HHC:12713 and State of H.P. versus Raj Kumar @ Raju
2024:HHC:13853 will not help the accused because in Rajesh Kumar
@ Raju (supra) the Court had found material contradictions which
made the prosecution case doubtful. In the present case, no major
contradiction has been found. In Raj Kumar @ Raju (supra) a third
option was given and was held to be fatal. In the present case, the
recovery was not effected by the personal search and it was a
chance recovery. Hence, there was no requirement to comply with
the provisions of Section 50 of the ND&PS Act. Thus, no advantage
can be derived from the cited judgments.
73
Neutral Citation No. ( 2025:HHC:2252-DB )
66. The learned Trial Court had acquitted the accused based
upon the reasoning which could not have been adopted by any
reasonable person. The reasons assigned by the learned Trial Court
were untenable and are not supported by the material on record.
Therefore, an interference is required with the judgment of the
learned Trial Court acquitting both the accused, Pradeep Saini and
Pradeep Kumar.
67. Further, the case of the prosecution is that accused Anuj
made a disclosure statement and got recovered an electronic
weighing scale with which accused Raman had weighed the charas
and delivered it to Anuj. It was laid down in Surendra Prasad v. State
of Bihar, 1991 SCC OnLine Pat 179: (1992) 1 PLJR 647: (1992) 40 (2)
BLJR 978: 1992 Cri LJ 2190: (1993) 1 DMC 200 that the conviction
cannot be recorded based on the statement of the co-accused
alone. It was observed at page 650:
14. As regards the statement of Ragho Mahto leading to the
recovery of the dead body of the deceased is concerned, the
Calcutta High Court in the case of Satish Chandra
Seal v. Emperor reported in A.I.R. (42) 1945 Cal. 137 has held
that the statements admissible under section 27 of the
Indian Evidence Act are not admissible against a person
other than the maker of the statement. It is thus evident that
the statement made by Ragho Mahto leading to the recovery
of the dead body cannot be used against the appellant.
74
Neutral Citation No. ( 2025:HHC:2252-DB )
68. A similar view was taken in Manoj Kumar Soni v. State of
M.P., 2023 SCC OnLine SC 984: AIR 2023 SC 3857 wherein it was
observed:
23. The law on the evidentiary value of disclosure statements
under Section 27 of, the Evidence Act made by the accused
himself seems to be well-established. The decision of the
Privy Council in Pulukuri Kotayya v. King-Emperor 1946 SCC
OnLine PC 47; AIR 1947 PC 67 holds the field even today
wherein it was held that the provided information must be
directly relevant to the discovered fact, including details
about the physical object, its place of origin, and the accused
person’s awareness of these aspects. The Privy Council
observed:
The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a
relevant fact can afford no justification for reading into s.
27 something which is not there, and admitting in
evidence a confession barred by s. 26. Except in cases in
which the possession, or concealment, of an object,
constitutes the gist of the offence charged, it can seldom
happen that information relating to the discovery of a
fact forms the foundation of the prosecution case. It is
only one link in the chain of proof, and the other links
must be forged in the manner allowed by law.
24. The law on the evidentiary value of disclosure
statements of co-accused too is settled; the courts have
hesitated to place reliance solely on disclosure statements of
co-accused and used them merely to support the conviction
or, as Sir Lawrence Jenkins observed in Emperor v. Lalit
Mohan Chuckerburty ILR (1911) 38 Cal 559, page 588, to “lend
assurance to other evidence against a co-accused”.
In Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184, this
Court, speaking through the Constitution Bench, elaborated
upon the approach to be adopted by courts when dealing
with disclosure statements:
75
Neutral Citation No. ( 2025:HHC:2252-DB )
13. …In dealing with a criminal case where the
prosecution relies upon the confession of one accused
person against another accused person, the proper
approach to adopt is to consider the other evidence
against such an accused person, and if the said evidence
appears to be satisfactory and the court is inclined to hold
that the said evidence may sustain the charge framed
against the said accused person, the court turns to the
confession with a view to assure itself that the conclusion
which it is inclined to draw from the other evidence is
right.
25. In yet another case of discrediting a flawed conviction
under Section 411, IPC, this Court, in Shiv Kumar v. State of
Madhya Pradesh (2022) 9 SCC 676 overturned the conviction
under Section 411, declined to place undue reliance solely on
the disclosure statements of the co-accused, and held:
24. …, the disclosure statement of one accused cannot be
accepted as proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also
failed to establish any basis for the appellant to believe
that the utensils seized from him were stolen articles.
The factum of selling utensils at a lower price cannot, by
itself, lead to the conclusion that the appellant was aware
of the theft of those articles. The essential ingredient
of mens rea is clearly not established for the charge under
Section 411 IPC. The prosecution’s evidence on this
aspect, as they would speak of the character Gratiano in
Merchant of Venice, can be appropriately described as
“you speak an infinite deal of nothing.” [William
Shakespeare, Merchant of Venice, Act 1 Scene 1.]
69. Further, in the present case the statement made by
accused Anuj Kumar that the electronic weighing scale was the one
with which accused Raman Kumar had weighed the charas does
not lead to the discovery of any fact and is inadmissible under
Section 27 of the Indian Evidence Act. It was laid down by the
76
Neutral Citation No. ( 2025:HHC:2252-DB )
Hon’ble Supreme Court in Prabhoo v. State of U.P., 1962 SCC OnLine
SC 383: (1963) 2 SCR 881: AIR 1963 SC 1113: (1963) 2 Cri LJ 182 that a
statement under Section 27 of Indian Evidence Act cannot be used
to connect the blood-stained clothes to the accused. It was
observed:
“9…..We are, therefore, of the opinion that the courts below
were wrong in admitting in evidence the alleged statement
of the appellant that the axe had been used to commit
murder or the statement that the bloodstained shirt and
dhoti were his. If these statements are excluded, and we
think that they must be excluded, then the only evidence
which remains is that the appellant produced from the
house a bloodstained axe and some bloodstained clothes.
The prosecution gave no evidence to establish whether the
axe belonged to the appellant or the bloodstained clothes
were his.”
70. This judgment was followed by this Court in Harbans
Lal v. State, 1965 SCC OnLine HP 21: AIR 1967 HP 10: 1967 Cri LJ 62 at
it was held at page 13:
“15…As has been rightly pointed out by the learned Sessions
Judge, there is no evidence that any of the shirts discovered
belonged to the appellant. Mirchu Ram had no doubt, stated
in Ex. PH, that one of the shirts belonged to the appellant.
But that statement was not admissible in evidence as it did
not relate distinctly to the discovery of the shirts within the
meaning of section 27, Evidence Act. It was held,
in Prabhoo v. State of Uttar Pradesh, AIR 1963 SC 1113, that a
statement made by an accused that the blood-stained shirt
and dhoti were his was not admissible in evidence under
section 27 Evidence Act. The discovery of the shirts Exs. P. 16
and P. 16, all the instances of Mirchu Ram, could not be used
to corroborate the confessional statement Ex. P.W. 12/C.”
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Neutral Citation No. ( 2025:HHC:2252-DB )
71. The prosecution has also relied upon the recovery of the
pistol. It was laid down by the Hon’ble Supreme Court in Jagjit
Singh v. State of Punjab, (1994) 4 SCC 726: 1994 SCC (Cri) 1324 that
when the weapon was not tested by the expert, the conviction
under Section 25 of the Act cannot be sustained. It was observed at
page 726:
“2. The only short question which we are required to
consider is whether the mere finding of an article described
as pistol and cartridges is sufficient to bring home the
charge under Section 5 of the Act. That provision states:
“5. Possession of certain unauthorised arms, etc., in specified
areas.– Where any person is in possession of any arms
and ammunition specified in Columns 2 and 3 of Category
I or Category III(a) of Schedule I to the Arms Rules, 1962,
or bombs, dynamite or other explosive substances
unauthorisedly in a notified area, he shall,
notwithstanding anything contained in any other law for
the time being in force, be punishable with imprisonment
for a term which shall not be less than five years but
which may extend to imprisonment for life and shall also
be liable to fine.”
3. Revolvers and pistols fall within Category III(a) of
Schedule I Arms Rules, 1962. However, the prosecution has
to establish that the article found from the possession of the
appellant is of that description and that the cartridges were
in fact live cartridges. Any article with a resemblance of a
revolver or a pistol cannot attract the provision. What is
necessary is to also show that that revolver or pistol was in
fact a lethal weapon in the sense that it was in working order
and was not a toy gun or the like. For that it was necessary
for the prosecution to lead some evidence and not merely go
by the description that the weapon was a .12 bore pistol. The
prosecution witnesses were all police personnel who would
ordinarily be able to identify a .12 bore pistol but in addition
78
Neutral Citation No. ( 2025:HHC:2252-DB )
thereto there must also be evidence to show that the weapon
was in working order. If there was evidence led by the
prosecution to show that these witnesses had tested the
weapon, it would have been a different matter. Even in the
absence of the evidence of a ballistic expert which would be
the most appropriate evidence in such cases, we do not find
any evidence on record to show that the prosecution
witnesses had tested the weapon and found it to be in
working order. The same is the case with the cartridges in
question. In the circumstances, we are afraid that the
prosecution cannot be said to have brought home the guilt or
satisfied the strict test required in such cases for convicting
the accused.”
72. A similar view was taken in Buta Singh v. State of Punjab,
1997 SCC (Cri) 1217 wherein it was observed at page 1218:
“4. We need not detain ourselves to consider the statements
of PW 1 and PW 2, the recovery witnesses, as we find that the
prosecution case suffers from a serious infirmity in this
case. The objects allegedly seized from the appellant were
not sent for any expert opinion either to the ballistic expert
or to any armourer. There is no evidence on the record to
show that the objects recovered from the appellant satisfied
the definition of “arm” and “ammunition” or “firearm” as
contained in the Arms Act. In the absence of any such
evidence, the conviction of the appellant cannot be
sustained. This appeal consequently succeeds and is allowed.
The conviction and sentence of the appellant is set aside and
he is hereby acquitted.”
73. This position was reiterated in Manoj Kumar Achhelal
Brahman v. State of Gujarat, (1998) 2 SCC 354: 1998 SCC (Cri) 636
wherein it was observed at page 354:
“2. The prosecution case in short is that a theft had taken
place in Village Kakaduva on 13-6-1988. When the owner of
the house and other villagers were in search of the
79
Neutral Citation No. ( 2025:HHC:2252-DB )miscreants responsible for such theft, they spotted five
persons present near a tea stall and they suspected their
involvement in the case of theft. The matter was reported to
the local police and on being searched from the possession
of one of the persons, two sarees alleged to be stolen and a
country-made pistol and some live cartridges were
recovered. The appellant and the other accused were,
therefore, tried for an offence under Section 3 and Section 5
of the Terrorists and Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as TADA) and also under
Section 25(1)(b)(a) of the Arms Act. The learned Designated
Court, however, acquitted the co-accused because nothing
was recovered from his possession but considering the
evidences adduced in the case, the appellant was convicted
for the offence under Sections 3 and 5 of TADA and Section
25 of the Arms Act. In the instant case, there are
independent witnesses who have deposed that from the
possession of the appellant, an object appearing to be a
revolver and live cartridges had been recovered. Such
depositions, therefore, appear to be trustworthy and do not
deserve to be discarded. But, unfortunately, nobody
including the police personnel who had seized the said
revolver had deposed that the police officer had himself
tested the said weapon and found it to be a pistol in working
condition. The learned Designated Court in this case has
rightly indicated that it is not always necessary to refer the
weapon to the ballistic expert for his opinion. In our view,
the police personnel who everyday deal with rifles and
pistols will be competent to tell whether the weapon in
question was in working condition or not provided he tests
the same. But unfortunately, that part of the deposition is
missing in this case. It will, therefore, not be safe to proceed
on the footing that the weapon alleged to have been
recovered from the possession of the appellant was really an
arm for which either under the Arms Act or under TADA
conviction was warranted. We, therefore, allow this appeal
by giving the benefit of the doubt to the appellant and set
aside his conviction and sentence. The appellant has been
released on bail during the pendency of the appeal. His bail
bonds will stand discharged.
80
Neutral Citation No. ( 2025:HHC:2252-DB )
74. Similar is the judgment in State of A.P. v. S. Appa Rao, (2001)
10 SCC 648: 2003 SCC (Cri) 1037: 2000 SCC OnLine SC 1624 wherein it was
held at page 650:
6. Regarding A-28 Shafath Ali Khan the evidence is that a
PW 65 police officer recovered an 1895 model rifle (MO 357)
from the possession of A-28. It is unnecessary for us to delve
into the evidence relating to the said recovery, for it is
admitted that nobody had tested to know whether it was a
toy rifle or an actual one.
7. Evidence of testing the rifle is necessary to prove that it is
a weapon falling within any of the categories mentioned in
Section 5 (vide Jagjit Singh v. State of Punjab [(1994) 4 SCC
726: 1994 SCC (Cri) 1324] and Manoj Kumar Achhelal
Brahman v. State of Gujarat [(1998) 2 SCC 354: 1998 SCC (Cri)
636]).
75. Section 39 of the Arms Act provides that no prosecution
for the contravention of Section 3 of the Arms Act can be lodged
without the sanction of the District Magistrate. It was laid down by
the Hon’ble Supreme Court in Mohinder Singh v. State of Haryana,
(1996) 11 SCC 369: 1997 SCC (Cri) 143 that the provisions of Section
39 of the Arms Act are mandatory and it is impermissible to
prosecute a person for violation of Section 3 of Arms Act without
the previous sanction of the District Magistrate. It was observed at
page 371:
“6. The other appeal filed by Harjinder Singh against his
conviction under Section 25 of the Arms Act, 1959 read with
Section 6 of TADA for unlawful possession of the revolver
has got to be allowed for the simple reason that the
prosecution did not prove that sanction as required under
81
Neutral Citation No. ( 2025:HHC:2252-DB )Section 39 thereof was accorded for prosecuting him for the
above offence.”
76. In the present case, no sanction was obtained, therefore
the accused could not have been prosecuted for the commission of
an offence punishable under Section 25(1B) read with Section 3 of
the Arms Act.
77. In view of the above the present appeal is partly allowed
and the judgment passed by the learned Trial Court acquitting
accused Pardeep Kumar and accused Pradeep Saini of the charged
offences is set aside, while the judgment acquitting accused Raman
Kumar of the charged offence is upheld. Accused Pardeep Kumar
and Pradeep Saini are convicted of the commission of an offence
punishable under Section 20(b)(ii) (C) of the ND&PS Act. Let they
be produced for hearing on the quantum of the sentence on
13.03.2025.
78. In view of the provisions of Section 437-A of the Code of
Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
Sanhita, 2023) respondent Raman Kumar is directed to furnish a
personal bond in the sum of ₹50,000/- with one surety of the like
amount to the satisfaction of the learned Trial Court, which shall
be effective for six months with a stipulation that in an event of a
Special Leave Petition being filed against this judgment or on grant
82
Neutral Citation No. ( 2025:HHC:2252-DB )
of the leave, the appellant (Raman Kumar) on receipt of notice
thereof shall appear before the Hon’ble Supreme Court.
(Tarlok Singh Chauhan)
Judge
(Rakesh Kainthla)
Judge
9th January, 2025
(Nikita)