Uttarakhand High Court
State Of Uttarakhand …Applicant/ vs Raja Tomar & Anr on 28 April, 2025
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
2025:UHC:3273-DB
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICE SHRI MANOJ KUMAR TIWARI
AND
JUSTICE SHRI VIVEK BHARTI SHARMA
Delay Condonation Application No.01 of 2025
In
Special Leave to Appeal No.53 of 2025
With
Government Appeal No.19 of 2025
State Of Uttarakhand ...Applicant/appellant
Versus
Raja Tomar & Anr. ...Respondents
Present:-
Mr. K.S. Bora, learned Deputy Advocate General for the State/appellant.
JUDGMENT:
(per Shri Vivek Bharti Sharma, J.)
Delay Condonation Application IA No.01/2025
This is Delay Condonation Application
No.01 of 2025 filed by the applicant-State to condone
the delay in filing the government appeal along with
application seeking leave to appeal.
2. There is a delay of 5 days in filing the
present appeal, which is sufficiently explained in the
affidavit. Delay is, therefore, condoned. Delay
Condonation Application stands allowed.
3. Heard.
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4. Present government appeal along with
special leave to appeal application is filed by the
State against the judgment/order dated 26.11.2024
passed by Special Sessions Judge,
(N.D.P.S.)/Sessions Judge, Uttarkashi in Special
Sessions Trial No.31 of 2022, whereby the said court
has acquitted the respondents from the charge of
offence punishable under Section 8/20 of Narcotic
Drugs and Psychotropic Substances Act (in short,
N.D.P.S. Act).
5. The case of prosecution is that on
26.02.2022 at 06:20 pm complainant Sub-Inspector
Mohan Kathait, along with Constable 351 Bishan Lal,
Constable 269 CP Ajay Dutt, Constable 513 Anil
Tomar, were in their private vehicle and were busy in
maintaining law and order under jurisdiction of their
police station; when the police party reached near
Kamal Sanskrit Vidyalaya and started checking
there, they saw a white car coming from Purola side;
when it was signaled to stop, it tried to speed away;
on this, the police personnel surrounded the vehicle
and using necessary force stopped it; inside the car,
one person was found sitting on driver’s seat and one
another person was found sitting on the seat next to
the driver; when these persons were asked the reason
of running away, they started getting nervous and
could not give any satisfactory answer; on this, the
complainant took both the persons out of the car one
by one and asked their names and addresses; the
person sitting on driver’s seat told his name as Raja
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Tomar (respondent no.1), son of Sulekh Chand
Tomar, Resident of Sukhpura Colony, Police Station
Kankhal, Haridwar and the other told his name as
Vijay Kumar (respondent no.2), son of Krishnapal,
Resident of village-Galibpur, Police Station-Khatauli,
District Muzaffarnagar, Uttar Pradesh; when the
driver respondent no.1 was asked for the documents
of the car he could not produce any documents
except the photocopy of the vehicle’s RC; the
complainant took search of the vehicle then some
substance tied in a red polythene was found on the
driver’s seat and when it was opened and examined,
a black stick-like substance was found inside it,
which when smelled by the complainant and the
accompanying employees, was believed to be Charas;
thereafter, the complainant opened the dashboard of
the vehicle and there also he found Charas in a green
polythene; when both the persons were strictly
questioned in this regard, respondent no.1 said that
the charas in red polythene on driver’s seat is mine
and the charas in green polythene on dashboard is of
respondent no.2; that, both of them jointly said that
they were taking this Charas from an unknown
person from Mori to Kankhal to sell it at higher
prices for Shivratri; when these persons were asked
about licenses in this regard, they failed to produce
the same.
6. In the recovery memo, it was further stated
that since the recovered contraband had to be
weighed, therefore, C.P. 351 Bishan Lal was sent to
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get electronic weighing scale after proper
instructions, who brought electronic weighing scale
after about 20-30 minutes and told that the person
who gave the weighing scale has given it on the
condition of keeping his name confidential. When
the recovered contraband were weighed, the weight of
the contraband recovered from respondent no.1
including foil was 605 grams whereas the weight of
the substance recovered from respondent no.2 was
402 grams including the foil; that, as the
respondents were found to be transporting illegal
Charas in the vehicle number-HR-01-ward-0215,
they were informed about their crime under Section
8/20/60 of the NDPS Act and were taken into police
custody at 21:45 from near Kamal Sanskrit School,
Naugaon Road, that, the recovered contraband were
sealed and specimen seal was taken.
7. On the basis of recovery of 01 kg 07 grams
of illegal charas and arrest of respondents, case
crime number-15/2022 under Section-8/20/60 of
N.D.P.S. Act was registered and the investigation
started.
8. On 04.05.2022, charge-sheet was filed in
the Court. On 28.06.2022, charges were framed
against the respondents under Section 8/20 of
N.D.P.S. Act to which they pleaded not guilty and
claimed to be tried.
9. To prove its case, prosecution examined
total 06 witnesses viz. PW1 Sub Inspector Mohan
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Kathayat, PW2 Head Constable Vijaypal Singh, PW3
Constable Rakesh Negi, PW4 Constable Bishan, PW5
SI Rajendra Singh Pujara, First Investigating Officer
of the Case and PW6 SI Girish Chandra Badoni
Second Investigating Officer.
10. Thereafter, the statements of the
respondents were recorded u/s 313 of Cr.P.C.
11. The Trial Court, on perusal of evidence and
upon hearing the parties, by judgment and order
dated 26.11.2024, acquitted the respondents on the
following grounds:-
a. PW1 the complainant of the case, in cross-
examination, admitted that all the daily
proceedings of the police are conducted
through general diary and if any police
personnel or police party leaves the police
station or outpost for any work, then their
departure is recorded in the general diary but
there is no entry in the general diary
regarding their departure on 26.02.2022 on
the file. This fact was also admitted by PW4 in
his cross-examination that there is no entry
regarding his departure in the general diary
on 26.02.2022. In this regard, PW5 the first
investigating officer of the case and PW6
second Investigating Officer also admitted in
their cross-examination that whenever any
police personnel or police party leaves the
police station for any official work, an entry is
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and date of department but there is no such
entry in the General Diary for the alleged
departure on the relevant date and time. The
Trial Court, on the basis of admissions made
in the cross-examination, arrived to the
conclusion that the general diary of a police
station is an important piece of evidence
which records the important fact of date, time
and place of departure and arrival of a police
personnel for any work, but this important
corroborative evidence has not been brought
on record and proved by the prosecution,
which creates doubt on the occurrence of
alleged incident on the fateful date and time.
b. The Trial Court recorded a finding that
statement of PW1 and PW4 do not inspire
confidence and their evidence is not
supported by any independent witness; that,
the evidence of these two witnesses shows
that there was availability of independent
witnesses at the spot but they did not make
any effort to procure the same.
c. The place of recovery is not proved by the
evidence led by the prosecution; that, PW1 in
his cross-examination, stated in para-7 that
the place of recovery would be approximately
5 km from the Purola Police Station and in
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would be approximately 01 km from Chowki
Bazar whereas in Chik FIR Exhibit P-5, the
distance of the place of recovery from Purola
Police Station is shown as 01 km.
d. The next vital defect in the case of the
prosecution which was looked into and
considered by the Trial Court was non-
examination of the shopkeeper from whom
the weighing scale was said to have been
brought for weighing the contraband. The
Trial Court recorded a categorical finding that
the prosecution has not brought any evidence
on record regarding the fact that from which
shopkeeper the scale was brought, with which
the charas recovered from the accused was
weighed; that, neither the name of that
shopkeeper come in the prosecution evidence
nor has he been questioned by the
Investigating Officer during investigation nor
that scales were also made a part of the
investigation and nor the shopkeeper was
examined in the trial court, and on the basis
of this, the Trial Court arrived to the
conclusion that the version put forth by the
prosecution that the shopkeeper had given
the scales on the condition that his name and
address should not be disclosed, does not
support the case of prosecution.
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e. The Trial Court further observed that as per
statement of PW4 Constable Bishan alleged
incident was photographed by Constable Anil
and photographs were brought on record as
paper no. 5-A/41 to 5-A/43 but in para 25 of
cross-examination, this witness admitted that
in these photographs, the respondents are not
seen holding charas in their hands and
neither charas is shown to have been taken
out from the car; that, this photography has
not been duly proved by the prosecution,
neither constable Anil who allegedly did the
photography has been examined nor any
certificate under Section 65B Indian Evidence
Act has been brought on file and proved and
neither any prosecution witness has told
when, who and from where these photographs
were developed. Thus, the Trial Court held
that the prosecution does not get any benefit
from these photographs.
f. Lastly, the Trial Court observed that there is
no evidence on record to show that
compliance of Section 52-A, Section 55 and
Section 57 of the NDPS Act was made during
the course of investigation.
12. Learned State Counsel would submit that
the judgment and order passed by the Trial Court is
against the evidence on record and is against the
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provisions of law. He would further submit that the
Trial Court has erred in acquitting the respondents
on the ground of non-compliance of Section 50,
52(A), 55 and 57 of N.D.P.S. Act.
13. He would further submit that the Trial
Court has erred in not appreciating the fact it was a
case of chance recovery and the contraband was
recovered from the car, therefore, compliance of
Section 50 and other sections of N.D.P.S. Act was not
necessary.
14. He would further submit that failure to
produce an independent public witness during the
recovery of the contraband as well as the non-
examination of person, who had provided the
electronic weighing machine, is not fatal to the
prosecution’s case. It is evident from the record that
sincere efforts were made to secure their presence,
but such efforts remained unsuccessful. He would
submit that mere non-availability of these witnesses,
when the prosecution’s case is otherwise supported
by credible and consistent evidence, cannot be held
as fatal. Therefore, the judgment of the Learned Trial
Court is unsustainable in law and deserves to be set
aside, and the respondents ought to be convicted
accordingly.
15. Perused the impugned judgment and record
of appeal.
16. We are of the considered view that the
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question of compliance with Section 50 of the
N.D.P.S. Act along with other statutory provisions
arises only if it is proved that the police party was
present at the spot of recovery of alleged contraband
from the respondents.
However, as observed above in the
impugned judgment, the prosecution witnesses and
even the Investigating Officer have unequivocally
admitted that the departure and arrival of the police
party from police station that allegedly recovered the
contraband from the respondents were neither
recorded in the general diary maintained at the police
station nor reflected elsewhere in the official records.
17. It is a well-settled principle that whenever
any police personnel or a police party departs from
the police station for any specific purpose, such as
conducting an operation or on patrolling duty to
maintain law and order, an entry to that effect is
mandatorily made in the General Diary maintained at
the police station. Similarly, upon their return, a
corresponding arrival entry is also required to be
recorded in the General Diary. In the absence of any
such departure or arrival entry in the General Diary,
the only plausible conclusion that may be drawn is
that the concerned police personnel did not leave or
return to the police station during the relevant
period.
18. Therefore, in the present case, the absence
of any entry of departure of the police personnel, who
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as per the prosecution, formed part of the raiding
party that allegedly recovered the contraband from
the respondents, leads to only one inescapable
conclusion that the police personnel had not left the
police station during the relevant time for the spot of
alleged recovery, and consequently, no such recovery
could have taken place in their absence from the
spot.
19. Furthermore, the photographs allegedly
taken at the time of recovery do not depict the
contraband in the possession of the respondents.
Even if such photographs shows the alleged
contraband that cannot be treated as conclusive
proof of recovery, particularly in the absence of a
certificate under Section 65B of the Information
Technology Act, which is mandatory for the
admissibility of electronic evidence.
20. We are also of the considered view that the
prosecution has completely failed to prove the link
evidence to establish that the case property was
safely deposited in Malkhana. There is no credible
oral testimony from the concerned witnesses to prove
the entries related to the deposit of the alleged
contraband in the Malkhana, its subsequent retrieval
for production before the Trial Court for sampling,
and its re-deposit thereafter. Such lapses cast serious
doubt on the originality of the case property and
sample taken therefrom.
21. As regards the first limb of argument of the
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learned State Counsel that the non-inclusion of
independent persons in the list of witnesses and their
non-examination is fatal to the case of prosecution,
there seems some force in this submission in view of
judgment of Hon’ble Apex Court in re “Ambika
Prasad and another vs. State (Delhi
Administration) & connected matter” (2000) 2
SCC 646, wherein the Hon’ble Apex Court observed
that “It is a known fact that the independent persons
are reluctant to be witnesses or to assist the
investigation. Reasons are not far to seek. Firstly, in
cases where injured witnesses or the close relative of
the deceased are under constant threat they dare not
depose the truth before the court, independent
witnesses believe that their safety is not guaranteed.
That belief cannot be said to be without any
substance. Another reason may be the delay in
recording the evidence of independent witnesses and
repeated adjournments in the court. In any case, if
independent persons are not willing to cooperate with
the investigation, the prosecution cannot be blamed
and it cannot be a ground for rejecting the evidence of
injured witnesses”.
However, there are glaring lapses,
inconsistencies, contradictions and improbabilities
as stated above, in the prosecution case in view of
which the prosecution case becomes unreliable,
therefore, acquittal of respondents is nothing but a
legal consequence.
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22. In view of the reasons recorded above, we
concur with the judgment of acquittal rendered by
the Trial Court. No interference is, therefore, called
for.
23. Accordingly, leave is refused. Leave to
appeal application is rejected and the government
appeal stands dismissed in limine.
(Vivek Bharti Sharma, J.) (Manoj Kumar Tiwari, J.)
28.04.2025 28.04.2025
Rajni
Digitally signed by RAJINI GUSAIN
RAJINI
DN: c=IN, o=HIGH COURT OF
UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=97cfa6e4cbd49c07b876db484
48ac3701a9ae475a2547e4b7f1d9b1f1
GUSAIN
7d01342, postalCode=263001,
st=UTTARAKHAND,
serialNumber=8D039BC77BD1A2222B
4DF4FC80D4557562F95BEBA013F5306
16A158A0A878BD8, cn=RAJINI GUSAIN
Date: 2025.05.01 12:50:50 +05’30’