Himachal Pradesh High Court
_________________________________________________________ vs Pratap Singh Alias Chotu on 7 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2025:HHC:5227-DB
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 276 of 2015
Reserved on: 01.03.2025
Decided on: 07.03.2025
_________________________________________________________
State of Himachal Pradesh
…..Appellant
Versus
Pratap Singh alias Chotu
……Respondent
_________________________________________________________
Coram
Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge
Hon’ble Mr. Justice Sushil Kukreja, Judge
1
Whether approved for reporting? Yes
_____________________________________________________
For the appellant: Mr. I.N. Mehta, Senior Additional
Advocate General with Mr. Raj Negi,
Deputy Advocate General.
For the respondent: Mr. N.S. Chandel, Senior Advocate with
Ms. Shwetima Dogra, Advocate.
Sushil Kukreja, Judge
The present appeal has been preferred by the appellant-
State under Section 378 of the Code of Criminal Procedure (Cr.PC)
against the judgment of acquittal dated 26.02.2015 passed by the
learned Additional Sessions Judge-cum-Special Judge (CBI), Shimla,
H.P., in Sessions Trial No.11-T/7 of 2013/12, whereby the accused
(respondent herein) was acquitted of the offence punishable under
Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985
(for short, the ‘NDPS Act‘).
1
Whether reporters of Local Papers may be allowed to see the judgment?
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2. Briefly stated the facts of the case, giving rise to instant
appeal as per the prosecution story, are that on 07.01.2012, a police
party headed by ASI Vijay Kumar was on patrolling duty towards Balag
Kainchi-Basadhar road and when the said police party was present
300 metres ahead of Balag Kainchi towards Basadhar at about 6:05
PM, a person was noticed coming from Kashna/Basadhar side, who
was carrying a red coloured bag in his right hand. On seeing the police
party, the said person got perplexed and turned back and then tried to
run way, but he was nabbed by the police on suspicion for having some
incriminating substance including narcotic drugs in his possession.
Thereafter, on inquiry, he disclosed his name as Pratap Singh (accused
herein). Since it was an isolated place and there was no habitation
nearby to associate any independent witness, as such, HC Manoj
Kumar and Constable Varun Joshi were associated as witnesses in the
proceedings by the Investigating Officer ASI Vijay Kumar. Thereafter,
the bag being carried by the accused was searched and on opening the
same, a transparent polythene envelope was recovered, which was
containing a black coloured substance in the shapes of ball, stick and
chapati and on the basis of experience, it was found Charas/cannabis.
On weighment, the recovered contraband was found to be 3.750 KGs.
Thereafter, the police completed all the codal formalities, viz., recovered
contraband was repacked in the same manner and then put in a cloth
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parcel, which was sealed with 18 seals of seal impression ‘A’. The
personal search of the accused was also conducted, but nothing
incriminating was found. Sample seal was separately taken on a piece
of cloth. NCB form, in triplicate, was filled and seal after use was
handed over to Constable Varun Joshi. Thereafter, the Investigating
Officer prepared the rukka and sent the same through Constable Rajeev
Patial to the police station, on the basis of which, FIR in question was
registered against the accused. The Investigating Officer also recorded
the statements of the witnesses and prepared the spot map. The
accused was arrested and got medically examined. The cloth parcel,
containing the recovered contraband, was handed over to SHO, who,
after checking the entries, re-sealed the same with 12 seals of seal
impression ‘M’ and deposited the case property in the Malkhana.
Special report was also prepared and delivered to the ASP City, Shimla.
The case property was sent to FSL, Junga for analysis.
3. On the completion of the investigation and receipt of the
SFSL report, the charge-sheet was prepared and presented before the
Trial Court.
4. The learned trial Court, vide order dated 28.05.2013 framed
charges against the accused under Section 20 of NDPS Act, to which he
did not plead guilty and claimed trial.
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5. The prosecution, in order to prove its case, examined 10
witnesses. Statement of the accused under Section 313, Cr.PC was
recorded, wherein he denied all set of incriminating evidence led by the
prosecution against him, besides pleaded to be innocent and that he
was illegally detained at Theog Bazar by the police and thereafter
charas was planted against him. He also examined 10 witnesses in his
defence.
6. The learned trial Court, vide impugned judgment dated
26.02.2015, acquitted the accused for commission of the offence
punishable under Section 20 of NDPS Act, hence, the instant appeal
preferred by the appellant-State.
7. The learned Senior Additional Advocate General contended
that the trial Court has appreciated the evidence on record in a slip-shod
and perfunctory manner and discarded the well reasoned and
consistent testimonies of the prosecution witnesses. He further
contended that the learned trial Court has observed that the police had
not given any option to the accused to be searched before a Magistrate
or Gazetted Officer and had also not given their personal search to the
accused prior to his search ,however, as per record, the contraband was
recovered from the accused during recovery and in the cases of chance
recovery, compliance of Section 50 NDPS Act is not mandatory. He
also contended that the learned trial Court has wrongly given undue
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weightage to the minor discrepancies and contradictions in the
statements of prosecution witnesses, as such, the impugned judgment
of acquittal is liable to be set aside.
8. Conversely, the learned Senior Counsel for the respondent/
accused contended that the impugned judgment has been passed by
the learned Trial Court after proper appreciation of both facts and law.
He further contended that the learned Trial Court has correctly
appreciated the evidence in its true perspective and the impugned
judgment does not require any interference by this Court. Therefore, he
submitted that the instant appeal, which sans merits, be dismissed.
9. We have heard learned Senior Additional Advocate General
for the appellant-State as well as learned Senior Counsel for the
respondent and also carefully examined the entire records.
10. It is well settled by the Hon’ble Apex Court in a catena of
decisions that an Appellate Court has full power to review, re-appreciate
and reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in case of
acquittal there is double presumption in favour of the accused. Firstly,
the presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the presumption of
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his innocence is further reinforced, reaffirmed and strengthened by the
trial Court. Further, if two reasonable views are possible on the basis of
the evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the trial Court.
11. The scope of power of Appellate Court in case of appeal
against acquittal has been dealt with by the Hon’ble Apex Court in
Muralidhar alias Gidda & another Vs. State of Karnatka reported in
(2014) 5 SCC 730, which reads as under :-
“10. Lord Russell in Sheo Swarup [1], highlighted the
approach of the High Court as an appellate court hearing the
appeal against acquittal. Lord Russell said,
“… the High Court should and will always give proper
weight and consideration to such matters as (1) the views of
the trial Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to the
benefit of any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a Judge who
had the advantage of seeing the witnesses.” The opinion of
the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while
dealing with the powers of the High Court in an appeal against
acquittal under Section 417 of the Criminal Procedure Code
observed:
“7………..the High Court has full power to review the
evidence upon which the order of acquittal was founded,
but it is equally well settled that the presumption of
innocence of the accused is further reinforced by his
acquittal by the trial court, and the findings of the trial court
which had the advantage of seeing the witnesses and
hearing their evidence can be reversed only for very
substantial and compelling reasons.”
12. The approach of the appellate court in the appeal
against acquittal has been dealt with by this Court in Tulsiram
Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher Raja Khima [6],
Balbir Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton
[10], Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem
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Karan [13], Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal
Reddy [16], Tota Singh [17], Ram Kumar [18], Madan Lal [19],
Sambasivan [20], Bhagwan Singh [21], Harijana Thirupala [22], C.
Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25] and
Chandrappa [26]. It is not necessary to deal with these cases
individually. Suffice it to say that this Court has consistently held
that in dealing with appeals against acquittal, the appellate court
must bear in mind the following:
(i) There is presumption of innocence in favour of
an accused person and such presumption is strengthened
by the order of acquittal passed in his favour by the trial
court,
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal
against acquittal,
(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as extensive
as its powers in appeals against convictions but the
appellate court is generally loath in disturbing the finding of
fact recorded by the trial court. It is so because the trial
court had an advantage of seeing the demeanor of the
witnesses. If the trial court takes a reasonable view of the
facts of the case, interference by the appellate court with
the judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably wrong
or based on erroneous view of the law or if such
conclusions are allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of the appellate
court in interfering with such conclusions is fully justified,
and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is inclined
to take a different view, interference with the judgment of
acquittal is not justified if the view taken by the trial court is
a possible view. The evenly balanced views of the
evidence must not result in the interference by the
appellate court in the judgment of the trial court.”
12. The Hon’ble Supreme Court in Rajesh Prasad Vs. State of
Bihar & another, (2022) 3 SCC 471, observed as under:-
“31.The circumstances under which an appeal would be
entertained by this Court from an order of acquittal passed by a
High Court may be summarized as follows:
31.1.Ordinarily, this Court is cautious in interfering with an
order of acquittal, especially when the order of acquittal has been
confirmed up to the High Court. It is only in rarest of rare cases,
where the High Court, on an absolutely wrong process of
reasoning and a legally erroneous and perverse approach to the
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facts of the case, ignoring some of the most vital facts, has
acquitted the accused, that the same may be reversed by this
Court, exercising jurisdiction under Article 136 of the Constitution.
[State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right
to entertain an appeal are prompted by the reluctance to expose a
person, who has been acquitted by a competent court of a criminal
charge, to the anxiety and tension of a further examination of the
case, even though it is held by a superior court. [Arunchalam v.
P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be
entertained against an order of acquittal which has, after recording
valid and weighty reasons, has arrived at an unassailable, logical
conclusion which justifies acquittal. [State of Haryana vs. Lakhbir]
31.2.However, this Court has on certain occasions, set
aside the order of acquittal passed by a High Court. The
circumstances under which this Court may entertain an appeal
against an order of acquittal and pass an order of conviction, may
be summarized as follows:
31.2.1.Where the approach or reasoning of the High Court
is perverse;
(a)Where incontrovertible evidence has been rejected by
the High Court based on suspicion and surmises, which
are rather unrealistic. [State of Rajasthan v. Sukhpal Singh
(1983) 1 SCC 393] For example, where direct, unanimous
accounts of the eyewitnesses, were discounted without
cogent reasoning. [State of U.P. vs. Shanker 1980 Supp
SCC 489]
(b) Where the intrinsic merits of the testimony of
relatives, living in the same house as the victim, were
discounted on the ground that they were “interested”
witnesses. [State of U.P. v. Hakim Singh (1980)
(c)Where testimony of witnesses had been disbelieved
by the High Court, on an unrealistic conjecture of personal
motive on the part of witnesses to implicate the accused,
when in fact, the witnesses had no axe to grind in the said
matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC
393]
(d) Where dying declaration of the deceased victim was
rejected by the High Court on an irrelevant ground that
they did not explain the injury found on one of the persons
present at the site of occurrence of the crime.
[Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC
297]
(e) Where the High Court applied an unrealistic standard
of “implicit proof” rather than that of “proof beyond
reasonable doubt” and therefore evaluated the evidence in
a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4
SCC 99]
(f) Where the High Court rejected circumstantial evidence,
based on an exaggerated and capricious theory, which
were beyond the plea of the accused; [State of
Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]
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(g) Where the High Court acquitted the accused on the
ground that he had no adequate motive to commit the
offence, although, in the said case, there was strong direct
evidence establishing the guilt of the accused, thereby
making it necessary on the part of the prosecution to
establish “motive”. [State of A.P. v. Bogam Chandraiah
(1990) 1 SCC 445]
31.2.2.Where acquittal would result is gross miscarriage of
justice;
(a)Where the findings of the High Court, disconnecting
the accused persons with the crime, were based on a
perfunctory consideration of evidence, [State of U.P. v.
Pheru Singh 1989 Supp (1) SCC] or based on extenuating
circumstances which were purely based in imagination and
fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]
(b) Where the accused had been acquitted on ground
of delay in conducting trial, which delay was attributable
not to the tardiness or indifference of the prosecuting
agencies, but to the conduct of the accused himself; or
where accused had been acquitted on ground of delay in
conducting trial relating to an offence which is not of a
trivial nature. [State of Maharashtra v. Champalal Punjaji
Shah (1981) 3 SCC 610].”
13. In H.D. Sundara & others Vs. State of Karnataka, (2023)
9 SCC 581, the Hon’ble Supreme Court has observed that the Appellate
Court cannot overturn acquittal only on the ground that after re-
appreciating evidence, it is of the view that the guilt of the accused was
established beyond a reasonable doubt. Relevant portion of the above
judgment is as under:-
“8. In this appeal, were are called upon to consider the legality
and validity of the impugned judgment rendered by the High Court
while deciding an appeal against acquittal under Section 378 of
the Code of Criminal Procedure, 1973 (for short “CrPC“). The
principles which govern the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section 378 CrPC
can be summarized as follows:
8.1.The acquittal of the accused further strengthens the
presumption of innocence;
8.2.The appellate court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and documentary
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evidence;
8.3.The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to consider
whether the view taken by the trial court is possible view which
could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that another
view was also possible; and
8.5.The appellate court can interfere with the order of acquittal
only if it comes to a finding that the only conclusion which can be
recorded on the basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable doubt and no
other conclusion was possible.
9.Normally, when an appellate court exercises appellate
jurisdiction, the duty of the appellate court is to find out whether
the verdict which is under challenge is correct or incorrect in law
and on facts. The appellate court normally ascertains whether the
decision under challenge is legal or illegal. But while dealing with
an appeal against acquittal, the appellate court cannot examine
the impugned judgment only to find out whether the view taken
was correct or incorrect. After re-appreciating the oral and
documentary evidence, the appellate court must first decide
whether the trial court’s view was a possible view. The appellate
court cannot overturn acquittal only on the ground that after re-
appreciating evidence, it is of the view that the guilt of the
accused was established beyond a reasonable doubt. Only
recording such a conclusion an order of acquittal cannot be
reversed unless the appellate court also concludes that it was the
only possible conclusion. Thus, the appellate court must see
whether the view taken by the trial court while acquitting an
accused can be reasonably taken on the basis of the evidence on
record. If the view taken by the trial court is a possible view, the
appellate court cannot interfere with the order of acquittal on the
ground that another view could have been taken.”
14. Thus, the law on the issue can be summarized to the effect
that in exceptional cases where there are compelling circumstances,
and the judgment under appeal is found to be perverse, the appellate
court can interfere with the order of acquittal. Further, if two views were
possible on the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the Trial Court,
merely, because the Appellate Court could have arrived at a different
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conclusion than that of the Trial Court.
15. In the instant case, the accused has been tried for
commission of the offence under Section 20 NDPS Act on the allegation
that on 07.01.2012 at 06:05 PM at place Balag Kainchi, Theog, the
accused was found in conscious and exclusive possession of 3.750
KGs of charas.
16. To substantiate the charge framed against the respondent-
accused and to bring home the guilt of the accused, the prosecution
examined as many as 10 witnesses. However, case of the prosecution
mainly rests upon the statements of PW-8 HC Manoj Kumar, PW-9
Constable. Rajiv Patial and PW-10 SI Vijay Kumar (investigating
Officer), who have been examined primarily to prove the search,
recovery and seizure of 3.750 KGs of charas in question from the
exclusive and conscious possession of the accused.
17. All the aforesaid witnesses, i.e. PW-8 HC Manoj Kumar,
PW-9 Constable Rajiv Patial and PW-10 SI Vijay Kumar have deposed
with one voice that on 07.01.2012, they were on patrolling duty towards
Balag Kainchi to Basadhar and at about 6:05 PM, when they had moved
300 mtrs ahead on the road from Balag Kainchi towards Basadhar, a
person carrying a red carry bag in his right hand came from the
opposite side, who on seeing the police party, turned back and tried to
run away, but he was apprehended for carrying some stolen articles or
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some contraband. On inquiry, he divulged his name as Pratap Singh. As
the place was lonely, no public witness was available, therefore, the
Investigating Officer associated PW-8 HC Manoj Kumar and Constable
Varun Joshi as witnesses. The bag in possession of the accused, which
had written on it “Sai Cloth House, Main Bazar Chopal”, was searched
and inside it was found ball shaped, stick shaped and chapati shaped
black substance. On the basis of experience, it was found to be
cannabis. The recovered cannabis was weighed by a weighing
measure, which was in the IO kit and found to be 3 KG 750 grams in
weight. The recovered cannabis after being put back in the same bag
was sealed in a cloth parcel with eighteen seals of seal impression “A”.
NCB-1 form in triplicated was filled. Separate seal impression was taken
on the piece of plain cloth. Seal after use was handed over to Constable
Varun Joshi. Both the aforesaid mentioned parcels were seized vide
seizure memo Ext.PW-8/A. Thereafter, the rukka was drawn by the
Investigating Officer and sent through PW-9 Constable Rajiv Patial to
Police Station Theog alongwith the case property.
18. In the instant case, the learned trial Court has given finding
that the police had not given any option to the accused to be searched
before the Magistrate or Gazetted Officer and neither the police party
had given their personal search to the accused prior to the search of
his bag and the personal search and the prosecution has miserably
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failed to establish the recovery of alleged contraband from the exclusive
and conscious possession of the accused. However, such finding of the
trial Court is misconceived as the contraband was recovered from the
carry bag, which the accused was carrying with him and not from his
personal search. It is no longer res integra that whenever a search is
conducted from any of the items like a bag, a briefcase, a suitcase,
container etc. and as a result thereof, a contraband under the NDPS
Act is recovered, it would not amount to a personal search of the
accused and because of this reason, Section 50 of the NDPS Act, would
not be attracted. It is applicable only in the case, where contraband is
recovered from the personal search of the accused. It has been held by
the Hon’ble Supreme Court on more than one occasions that such
search and recovery from a bag, briefcase, container, etc. does not
come within the ambit of Section 50 of the NDPS Act.
19. In the case of Ajmer Singh Vs. State of Haryana, (2010) 3
SCC 746, 500 grams of charas was recovered from the bag carried by
an accused on his shoulder and it was observed by the Hon’ble Apex
Court as under:
“15.The learned counsel for the appellant contended that the
provision of Section 50 of the Act would also apply, while searching
the bag, briefcase, etc. carried by the person and its non-
compliance would be fatal to the proceedings initiated under the
Act. We find no merit in the contention of the learned counsel. It
requires to be noticed that the question of compliance or non-
compliance with Section 50 of the NDPS Act is relevant only where
search of a person is involved and the said section is not
applicable nor attracted where no search of a person is involved.
Search and recovery from a bag, briefcase, container, etc. does not
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come within the ambit of Section 50 of the NDPS Act, because
firstly, Section 50 expressly speaks of search of person only.
Secondly, the section speaks of taking of the person to be
searched by the gazetted officer or a Magistrate for the purpose of
search. Thirdly, this issue in our considered opinion is no more res
integra in view of the observations made by this Court in Madan Lal
v. State of H.P. [(2003) 7 SCC 465 : 2003 SCC (Cri) 1664 : 2003
Cri LJ 3868] The Court has observed: (SCC p. 471, para 16)
“16. A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It does not
extend to search of a vehicle or a container or a bag or
premises (see Kalema Tumba v. State of Maharashtra
[(1999) 8 SCC 257 : 1999 SCC (Cri) 1422] , State of Punjab
v. Baldev Singh [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080]
and Gurbax Singh v. State of Haryana [(2001) 3 SCC 28 :
2001 SCC (Cri) 426] ).The language of section is implicitly
clear that the search has to be in relation to a person as
contrast to search of premises, vehicles, or articles. This
position was settled beyond doubt by the Constitution Bench
in Baldev Singh’s case. Above being the position, the
contention regarding non-compliance of Section 50 of the Act
is also without any substance.”
20. In State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350, a
three Judges Bench of Hon’ble Apex Court held that a person would
mean a human being with appropriate coverings and clothing and also
footwear. A bag, briefcase or any such article or container, etc. can
under no circumstances be treated as a body of a human being.
Therefore, it is not possible to include these articles within the ambit of
the word “person” occurring in Section 50 of the NDPS Act.
21. In State of Punjab vs. Baljinder Singh & another, (2019)
10 SCC 473, the Hon’ble Supreme Court in paras 15 & 17 of the
judgment held as under:-
15. As regards applicability of the requirements under
Section 50 of the Act are concerned, it is well settled that
the mandate of Section 50 of the Act is confined to
“personal search” and not to search of a vehicle or a
container or premises.
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16. xxxx xxxx xxxx
17. In the instant case, the personal search of the accused
did not result in recovery of any contraband. Even if there
was any such recovery, the same could not be relied upon
for want of compliance of the requirements of Section 50 of
the Act. But the search of the vehicle and recovery of
contraband pursuant thereto having stood proved, merely
because there was non-compliance of Section 50 of the Act
as far as “personal search” was concerned, no benefit can
be extended so as to invalidate the effect of recovery from
the search of the vehicle. Any such idea would be directly
in the teeth of conclusion (3) as aforesaid.”
22. Thus, the aforesaid decision of the Hon’ble Supreme Court
shows that the provisions of Section 50 of the NDPS Act will come into
play only in the case of personal search of the accused and not of some
baggage, which he may be carrying. In other words, if merely a bag
carried by a person is searched without there being any search of his
person, Section 50 of NDPS Act will have no application.
23. In the instant case, the contraband was allegedly
recovered from the carry bag, which was being carried by the accused
and his personal search did not lead to any recovery, as such Section
50 of NDPS Act is not applicable.
24. It is well settled that the conviction can be based upon the
testimony of the police officials, provided that such testimony is reliable,
trustworthy and confidence inspiring. The evidence of police witnesses
cannot be distrusted and disbelieved, merely on account of their official
status. The testimony of official witnesses, including police officials,
carries the same evidentiary value as the testimony of any other person.
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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. In Pramod Kumar Versus State
(Government of NCT of Delhi), (2013) 6 Supreme Court Cases 588,
the Hon’ble Supreme Court has held that if the testimony of the police
officer is found to be reliable and trustworthy, the Court can definitely act
upon the same. If, in the course of scrutinizing the evidence, the Court
finds the evidence of the police officer as unreliable and untrustworthy,
the Court may disbelieve him but it should not do so solely on the
presumption that a witness from the Department of Police should be
viewed with distrust. Para-13 of the judgment reads as under:-
“13. This Court, after referring to State of U.P. v. Anil
Singh, State (Govt. of NCT of Delhi) v. Sunil and Ramjee Rai v.
State of Bihar has laid down recently in Kashmiri Lal v. State of
Haryana that there is no absolute command of law that the police
officers cannot be cited as witnesses and their testimony should
always be treated with suspicion. Ordinarily, the public at large
show their disinclination to come forward to become witnesses. If
the testimony of the police officer is found to be reliable and
trustworthy, the court can definitely act upon the same. If, in the
course of scrutinising the evidence, the court finds the evidence
of the police officer as unreliable and untrustworthy, the court
may disbelieve him but it should not do so solely on the
presumption that a witness from the Department of Police should
be viewed with distrust. This is also based on the principle that
quality of the evidence weighs over the quantity of evidence.”
25. Similarly, in Baldev Singh Versus State of Haryana,
(2015) 17 Supreme Court Cases 554, the Hon’ble Supreme Court has
held that evidence of police witnesses cannot be discarded merely on
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the ground that they belong to police force and interested in the
investigation and their desire to see the success of the case. However,
prudence requires that the evidence of police officials who are
interested in the outcome of the result of the case needs to be carefully
scrutinised and independently appreciated. Relevant para of the
judgment reads as under:-
“10. There is no legal proposition that evidence of police officials
unless supported by independent evidence is unworthy of
acceptance. Evidence of police witnesses cannot be discarded
merely on the ground that they belong to police force and
interested in the investigation and their desire to see the success
of the case. Prudence however requires that the evidence of
police officials who are interested in the outcome of the result of
the case needs to be carefully scrutinised and independently
appreciated. Mere fact that they are police officials does not by
itself give rise to any doubt about their creditworthiness.”
26. In Surinder Kumar Versus State of Punjab, (2020) 2
Supreme Court Cases 563, the Hon’ble Supreme Court has held that
the Court cannot start with the presumption that the police records are
untrustworthy. As a presumption of law, the presumption should be the
other way round. Para-16 of judgment reads as under:-
“16. In State (NCT of Delhi) Vs. Sunil it was held as under: (SCC
p.655)“It is an archaic notion that actions of the police officer
should be approached with initial distrust. It is time now to
start placing at least initial trust on the actions and the
documents made by the police. At any rate, the court cannot
start with the presumption that the police records are
untrustworthy. As a presumption of law, the presumption
should be the other way round. The official acts of the police
have been regularly performed is a wise principle of
presumption and recognised even by the legislature”.
Neutral Citation No. ( 2025:HHC:5227-DB
18
27. In Raveen Kumar v. State of H.P., (2021) 12 SCC 557, it
was laid down by the Hon’ble Supreme Court that non- association of
the independent witnesses will not be fatal to the prosecution case.
However, the Court will have to scrutinize the statements of prosecution
witnesses carefully. It was observed as under:-
“19. It would be gainsaid that the lack of independent
witnesses is not fatal to the prosecution case. [Kalpnath Rai vs.
State, (1998) AIR SC 201] However, such omissions cast an
added duty on Courts to adopt a greater degree of care while
scrutinising the testimonies of the police officers, which if found
reliable can form the basis of a successful conviction.”
28. Therefore, in view of the aforesaid settled legal position, the
testimony of police witnesses cannot be rejected on the ground of non-
corroboration by independent witnesses, however such testimony needs
to be carefully scrutinized. The same must inspire confidence and
should be consistent with the case set up by the prosecution. In case
there are material contradictions, which goes to the root of the case and
make the prosecution case highly doubtful, then this Court would
obviously be circumspect while placing reliance on such testimony.
29. In the instant case, the prosecution story is totally based on
the statements of police officials, i.e. PW-8, HC Manoj Kumar, PW-9
Constable Rajiv Patial and PW-10 SI Vijay Kumar and admittedly no
independent witness has been associated during the investigation.
Now, the question which arises for consideration before this Court is as
to whether the testimonies of aforesaid police officials are trustworthy
Neutral Citation No. ( 2025:HHC:5227-DB
19
and inspire confidence. As per the statements of police officials, i.e.
PW-8, HC Manoj Kumar, PW-9 C. Rajiv Patial and PW-10 SI Vijay
Kumar, they went from Shimla upto Chailla on 07.01.2012 by HRTC bus
and the accused was apprehended at a place, Balag Kainchi towards
Basadhar at about 6.05 PM. However, after perusing the entire
evidence on record, the statements of aforesaid witnesses have been
found to be totally unreliable and untrustworthy and the same do not
inspire confidence. PW-10 SI Vijay Kumar (Investigating Officer), who
was posted during the relevant period at Special Investigating Unit,
Shimla, had stated in cross-examination that after leaving police station,
they went to Lakkar Bazar bus stand and thereafter they went towards
Chailla in HRTC bus. He further stated that there was normal traffic at
Lakkar Bazar and there was no snow on the road and the traffic was not
blocked anywhere till Chailla due to snow fall. PW-8 HC Manoj Kumar
stated in his cross-examination, that they left Police Station Sadar,
Shimla at 9.45 AM and from there, they went to Bus Stand, Lakkar
Bazar, from where, they boarded a bus which was going towards Rohru
and they went up to Chaila and from Chailla, they took a bus which was
going towards Neri Pull. PW-9 C. Rajiv Patial also stated in his cross-
examination that they took an HRTC bus from Lakkar Bazar up-till
Chailla.
30. The defence of the accused is that he was falsely
Neutral Citation No. ( 2025:HHC:5227-DB
20
implicated by the police and was illegally detained at Theog Bazar and
thereafter charas was planted against him. In his defence, the accused
examined ten witnesses. The perusal of the defence evidence shows
that on 07.01.2012, no bus of HRTC had plied on the route from Shimla
to Rohru via Fagu due to heavy snow fall. As per GD entry No.40, dated
07.01.2012 entered at 11.15 PM, Police Station Dhalli (Ext.D-2), due to
the blockage of road, no bus had plied to Rohru on account of heavy
snow fall. Similarly, as per GD entry No.27, dated 10.01.2012 entered
at 4.15 PM, Police Station Dhalli (Ext. D-5), the road towards Theog was
blocked on 07.01.2012 due to heavy snow fall. DW-2 Ravinder Kumar is
a witness from Metrological Centre, Shimla, who tendered in evidence
chart of January, 2012 Ext. D-6 and according to the same, Shimla and
Theog had received heavy snow fall on 6th to 9th January, 2012. DW-3
Constable Kirpal Singh from Police Post Fagu had tendered in evidence
copy of daily diary dated 08.01.2012 (Ext.D-7) and as per entry No.3
thereof, no means of transport was available due to heavy snow fall.
DW-4 HC Puran Chand, Investigating Officer, Sadar, Shimla, had
brought copy of daily diary dated 09.01.2012 (Ext. DW4/A) and as per
GD entry No.56, there was heavy snow fall on 07.01.2012. DW-5 HHC
Madan Singh, Police Station Theog, had brought copy of daily diary
dated 07.01.2012 of Police Station, Theog (Ext. DW5/A), and as per
GD entry No.8 entered at 6.05 AM, entry No.26 entered at 6.40 PM and
Neutral Citation No. ( 2025:HHC:5227-DB
21
entry No.30 entered at 9.40 PM, no means of transport was available
from Shimla to Theog on 07.01.2012 due to blockage of road on
account of heavy snow fall. DW-6 Bhupinder Kumar Goel had produced
on record abstract of log book of snow cutter from 05.01.2012 to
20.01.2012 Ext.DW6/A. DW-7 Pradeep Kumar, Chief Inspector, HRTC,
Rohru Unit, Dhalli had produced on record duty roster dated 07.01.2012
(Ext. DW7/A) and as per the entries incorporated in the duty roster, no
bus had plied via Fagu on 07.01.2012. DW-8 Mohan Sahil, Reporter,
Dainik Bhaskar and DW-9 Uttam Singh, Section Head, Tribune Office,
Shimla had brought on record copies of news items, Ext. DW8/A and
DW9/A and as per the same, there was heavy snow fall in Shimla and
Theog on 07.01.2012. DW-10 Kamlesh Kumar, Bus Stand Incharge,
ISBT, Tuti Kandi, Shimla, had produced on record the duty register w.e.f.
01.01.2012 to 31.01.2012 pertaining to duties of drivers, conductors and
the buses deputed on various routes pertaining to HRTC Rohru,
Rampur and Reckong Peo and as per entries dated 07.01.2012, HRTC
buses did not ply on Shimla-Rohru route due to blockage of roads on
account of snowfall.
31. The aforesaid documentary evidence clearly shows that no
HRTC buses had plied on Shimla-Rohru route via Fagu on 07.01.2012
due to blockage of road as a result of heavy snow fall. Therefore, the
statements of aforesaid police officials, i.e. PW-8, PW-9 and PW-10 to
Neutral Citation No. ( 2025:HHC:5227-DB
22
the effect that they went from Police Station Sadar, Shimla to Chailla by
HRTC bus does not inspire confidence. The statement of PW-10 SI
Vijay Kumar, Investigating Officer, has been completely shattered by the
learned defence counsel during cross-examination. His demeanor was
also noted by the learned trial Court at the time of cross-examination as
he even denied the certified copies of the daily diary register obtained
by the defence counsel under RTI Act. The relevant portion of his
cross-examination is extracted as under:-
“………….I do not remember the route of the bus however
the same was proceedings towards Rohru. When we came back to
Theog in the night from the spot the snow fall had not started. But it
was about to start. It is incorrect that no bus was plied on this route
due to heavy snow fall. I can not say anything about any certificate
issued by any authority for non plying of buses due to heavy snow
fall on that day. I can not say about any rapat lodged in P.P. Phagu
that no bus was plied on that day due to heavy snow fall. It is
incorrect that the rapat was lodged at P.S. Theog that no bus was
plied on that day due to heavy snow fall. It is incorrect that as per
the Rojnamcha of P.S. Theog it was heavily snowing much prior to
the reaching Rajeev Patial. It is incorrect that it was recorded in
Rojnamcha at P.S. Theog that due to heavy snow fall constable
Rajeev Patial had not gone to the spot after delivery of rukka due
to heavy snow fall……………….
…………………It is necessary to note the demeanor of this
witness. The witness even denied the certified copy made in the
daily diary register obtained by the defence under RTI. I can not
say that after being free after 7th January, I came back to Shimla
on 9th January, 2012 due to heavy snow fall. I can not say about
the entries made in daily diary register mark-X. I can not say
anything about the entries made in daily diary mark-Y dated
06.01.2012,07.01.2012 and 08.01.2012. I never remained posted
in the area beyond Theog…………..”
32. Statement of PW-9 Constable Rajiv Patial was also
completely shattered by the defence counsel. He denied the suggestion
that on 07.01.2012 there was snow at Theog and stated that the traffic
Neutral Citation No. ( 2025:HHC:5227-DB
23
was properly plying on the road which is contrary to the record. PW-8
HC Manoj Kumar also stated in his cross-examination that they left
Police Station Sadar at 9:45 AM, from there they went to Bus Stand,
Lakkar Bazar, where they boarded a bus, which was going towards
Rohru and they went upto Chaila. He further stated that they took an
HRTC bus from Chailla which was going to Neri Pull, which is again
contrary to the record as no HRTC bus had plied on that day due to
heavy snow fall.
33. Thus, perusal of the cross-examinations of the aforesaid
witnesses clearly demonstrate that their statements are totally based
upon falsehoods as it has been established by the defence that no bus
had plied on 07.01.2012 due to heavy snow fall on the route from
Shimla to Rohru via Fagu. The documentary evidence led by the
accused has completely belied the version of the police officials, i.e.
PW-8 and PW-9 and also the Investigation Officer i.e.PW-10,hence,
their presence on the spot is highly doubtful and no credence can be
attached to their evidence which is totally unreliable and untrustworthy.
34. Consequently, in view of the detailed discussion made
hereinabove, we are of the firm opinion that the prosecution has failed
to prove its case against the accused beyond reasonable doubt.
Hence, no interference in the judgment of acquittal dated 26.02.2015,
rendered by the learned Additional Sessions Judge-cum- Special Judge
Neutral Citation No. ( 2025:HHC:5227-DB
24
(CBI), Shimla, HP, in Sessions Trial No.11-T/7 of 2013/12 is required for
the reasons recorded hereinabove. The appeal, which is devoid of merit,
deserves dismissal and is accordingly dismissed. Bail bonds are
discharged.
Pending application(s), if any, shall also stand disposed of.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
March 07, 2025
(VH)