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Judgment
Bhupesh Sharma, Judge
The appellant (hereinafter referred to as 'accused') calls in question the legality of the conviction recorded in terms of Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) passed by the learned Special Judge, Mandi, District Mandi, H.P., in N.D.P.S. Trial No.13/2022/2013 (CNR No.HPMA01-001290-2010), titled as ‘State of Himachal Pradesh Vs. Brahm Prakash’, whereby the appellant/accused has been convicted for the offence punishable under Section 20(b)(ii)(C) of NDPS Act, 1985 vide judgment of conviction and order of sentence dated 30.12.2022 and has been sentenced to undergo rigorous imprisonment for a term of 15 years and to pay a fine of ₹1.50,000/- for the said offence and in default of payment of fine amount, to further undergo rigorous imprisonment for a term of one year and six months. The benefit of set off under Section 428 Cr.PC has been given to the accused.
The accused was sent to face trial for the commission of offence under Section 20(b)(ii)(C) of NDPS Act, 1985 by SHO Police Station Aut, District Mandi, H.P. in case FIR No.31/2010 dated 13.03.2010 for being in exclusive and conscious possession of 1.5 Kgs of ‘Charas’(Cannabis). The accused was prosecuted for the commission of offence punishable under Section 20(b)(ii)(C) of the NDPS, Act, 1985 and was subsequently convicted by the learned trial Court vide impugned judgment of conviction and order of sentence dated 30.12.2022 in N.D.P.S. Trial No.13/2022/2013 (CNR No.HPMA01-001290-2010), titled as ‘State of Himachal Pradesh Vs. Brahm Prakash’.
The case for the prosecution as set-out against the accused, in short, is as under:
3(a). On 13.03.2010 at about 11:45 AM near Larji Dam within the jurisdiction of Police Station Aut, District Mandi, H.P., the accused was found in exclusive and conscious possession of 1.5 Kgs of ‘Charas’(Cannabis).
3(b). On 13.03.2010, at about 10:30 AM, a Police party headed by ASI Ramesh Lal, Investigating Officer of Police Station Aut, District Mandi, H.P., left for routine patrolling, traffic checking, law and order and crime detection duty towards Silha-Larji etc., vide GD No.17(A) dated 13.03.2010. He was accompanied by other police officials, namely ASI Satpal, HC Hari Singh No.407, HHC Roop Singh No.183, Constable Subhash Chand No.658 and Constable Vipin Kumar No.637. The police party was traveling in official vehicle No.HP33B-1378 being driven by Constable Himmat Ram No.504. At about 11:45 AM, the police party spotted and intercepted the accused 400 meters ahead of Larji Dam coming from Panjayee side carrying a backpack (Pithu bag). The accused on seeing the Police party got frightened and started answering the call of nature. The act and conduct of the accused raised reasonable suspicion regarding his movement, the Investigating officer stopped the vehicle and apprehended him at a distance of 10 meters. The name and identity of the accused was ascertained and thereafter, the backpack(Pithu bag) in possession of the accused was searched leading to recovery of a polythene packet containing 1.5 Kgs ‘Charas’(Cannabis). The accused could not account for the contraband, which was recovered from his exclusive and conscious possession.
3(c). Pursuant to recovery of 1.5 Kgs of ‘Charas’ (Cannabis) from exclusive and conscious the possession of the accused, the Investigating Officer ASI Ramesh Lal proceeded with conducting cordial seizure formalities. The ‘Charas’ (Cannabis) was put in the polythene bag which was sealed in a cloth parcel by affixing six seals of impression 'M'. The sample seal impression 'M' was taken on a separate piece of cloth for the purpose of record and the seal, after its use, was handed over to ASI Satpal. ASI Ramesh Lal, thereafter filled relevant columns of NCB-I form in triplicate. Thereafter, the case property i.e. sealed parcel along with sample seal impression 'M' and NCB-I form in triplicate, were taken into possession vide recovery and seizure memo in the presence of official witnesses, i.e. ASI Satpal and HC Hari Singh No.407. The investigating officer could not associate any independent witnesses during the course of search, recovery and seizure proceedings since the accused was apprehended at a deserted place. The copy of recovery and seizure memo was handed over to the accused and thereafter, the Investigating Officer scribed rukka and sent the same to SHO Police Station Aut through Constable Vipin Kumar No.128, and in pursuance thereof, Case FIR No.31/10 dated 13.03.2010 under Section 20 NDPS Act was registered against the accused at Police Station Aut, District Mandi, HP. The Investigating Officer prepared spot map and recorded the statements of witnesses under Section 161 Cr.PC. The accused was subsequently arrested on 13.03.2010 at 1:30 PM vide arrest memo in accordance with law.
3(d). On 13.03.2010 at 2:35 PM, the police party returned to Police Station Aut along with accused and presented the case property for re-sealing before SI Sureshtha Thakur, SHO Police Station Aut vide GD No.26(A) dated 13.03.2010. The case property was re-sealed by SI Sureshtha Thakur after affixing 6 seals of impression ‘N’. She has also filled relevant columns of NCB-I form in triplicate. Sample seal impression ‘N’ was taken separately, and thereafter, re-sealing certificate under Section 55 NDPS Act was issued in this regard. Thereafter, the case property along with documents were handed over to HC Kashmir Singh No.28, MHC Police Station Aut, for safe custody.
3(e). On 14.03.2010, ASI Ramesh Lal, Investigating Officer, prepared Special Report under Section 57 of the NDPS Act and sent the same to the supervisory officer of Police Station Aut i.e. Additional SP Mandi, through HC Ganesh Lal No.434. Requisite entries in this regard were made at serial No.63 of the Special Reports Register by HC Lachaman Das No.864, Reader to Additional SP, Mandi. The case property was later sent for forensic examination to the State Forensic Science Laboratory, Junga through Constable Raj Pal Singh No.741 vide RC No. 165/09-10 dated 17.03.2010. As per the SFSL Report No.534 NDPS Division 221/2010, the contraband was found to be an extract of Cannabis and sample of ‘Charas’, and the quantity of purified resin found was 35.91% w/w.
3(f). Pursuant to completion of the investigation, the accused was found in exclusive conscious possession of 1.5 Kgs of ‘Charas’(Cannabis). Accordingly, he was found to have committed an offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985. A final report under Section 173(2) Cr.PC. was prepared against him by SHO Police Station Aut and was accordingly filed before the learned Special Judge, Mandi, District Mandi, H.P., on 03.07.2010. The accused was put to trial in N.D.P.S. Trial No.13/2022/2013 (CNR No.HPMA01-001290-2010), titled as ‘State of Himachal Pradesh Vs. Brahm Prakash’.
The accused was charged for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985 vide order dated 09.01.2012, to which he pleaded not guilty and claimed trial.
The prosecution, in order to prove and substantiate the allegations and accusations, against the accused examined ten witnesses. The principal prosecution witnesses pertaining to search of the accused, recovery of the contraband and its seizure thereof are ASI Satpal examined as PW-1, HC Vipin Kumar No.128 examined as PW-2 and Inspector Ramesh Lal, Investigating Officer examined as PW-10. The re-sealing of the case property was conducted by Inspector Sureshtha Thakur examined as PW-7. The other witnesses examined by the prosecution namely HC Ganesh Lal No.71 as PW-3, HHC Rajpal Singh No.741 examined as PW-4, HHC Jagdish Kumar No.270 examined as PW-5, HC Kashmir Singh No.,28 MHC examined as PW-6, SI Nikka Ram examined as PW-8 and HC Lachaman Dass examined as PW-9 are formal in nature, who were associated by the Investigating Officer at various stages of the investigation and they necessarily constitute the link evidence.
The prosecution, apart from examining the aforesaid witnesses, also relied upon the documentary evidence placed on record, which was collected against the accused during the course of investigation i.e. Sample Seal (Ext.PW1/A), Seizure memo (Ext.PW1/B), Arrest memo (Ext.PW1/C), G.D. Entry No.17 (A) (Ext.PW6/A), G.D. Entry No.26 (A) (Ext.PW6/B), G.D. entry No.27 (A) (Ext.PW6/C), Abstract of malkhana register (Ext.PW6/ D), Abstract of R.C. (Ext.PW6/E), F.I.R. (Ext. PW7/A), NCB-I form (Ext.PW7/B), Sample seal (Ext.PW7/C), Resealing certificate (Ext.PW7/D), Copy of special report (Ex.PW9/A), Abstract of special report register (Ext.PW9/B), Affidavit (Ext.PW9/C), Rukka (Ext.PW10/A), Site plan (Ext.PW10/B) and Result of FSL Junga (Ext.P-X).
The substance of the prosecution case was put to the accused in his statement recorded under Section 313 Cr.PC on 04.07.2012, wherein he has denied the prosecution case in its entirety by raising the defence of denial simplicitor and false implication by the police.
The learned trial Court, after considering the material on record and hearing the parties, found the accused guilty for being in possession of 1.5 Kgs of ‘Charas’(Cannabis), which was recovered from his exclusive and conscious possession on 13.03.2010 at 11:45 AM at a place near Larji Dam, District Mandi, H.P. Accordingly, he was convicted for the commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985 in N.D.P.S. Trial No.13/2022/2013 (CNR No.HPMA01-001290-2010), titled as ‘State of Himachal Pradesh Vs. Brahm Prakash’, vide impugned judgment of conviction and order of sentence dated 30.12.2022.
Feeling aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence dated 30.12.2022 passed by the learned Special Judge, Mandi, District Mandi, H.P., in N.D.P.S. Trial No.13/2022/2013 (CNR No.HPMA01-001290-2010), titled as ‘State of Himachal Pradesh Vs. Brahm Prakash’, the accused is in appeal before this Court on various grounds.
10. GROUNDS OF APPEAL:
(i)“That the Ld. Trial Court has wrongly conclude that place of occurrence was lonely and deserted place and there is no independent person was available, whereas matter of fact that place of occurrence was a busy place and many vehicles has crossed the road and it was also near to Larji dam and same was admitted by the Police officials in their cross examination and it is admitted by the PW-2 Vipin Kumar and IO did not instructed the other staff to stop the vehicles passing by the place of occurrence.
(ii)That the Ld. Trial Court has not appreciated the fact that there was no seal taken upon the NCB form and same was admitted by the PW-2 in cross examination and moreover the same was not produced before the LD. Trial Court, this grave laps in the part of prosecution and same fatal the prosecution case and therefore,appellant is entitled for acquittal.
(iii)That as per the statement of PW-10 the recovery memo (Ext.D-1) does not show that any copy of the seizure memo was not given from the accused.
(iv)That there is contradictory statements between the official witness as per the statement of Vipin Kumar (PW-2) stated in his cross-examination that Ramesh Lal filled the NCB-1 form in his presence and no recovery memo was prepared in his presence and nothing was filled or embossed on the NCB-1 form, whereby Satpal (PW-1) stated that he had filled the NCB-1 form, whereas Vipin Kumar and Ramesh Lal stated that the NCB-1 form was filled by Ramesh Kumar.
(v)That the witness SHO Ramesh Lal PW-10 stated that he had sealed the cloth parcel with six seals of ‘N’ which is contrary to the prosecution case as the seal ‘M’ was put on the spot, as per the prosecution version.
(vi)That the prosecution has failed to maintained the case dairy regarding the departure of Rajpal PW-4 regarding to FSL Junga with abstract of Malkhana and the arrival of Jagdish Kumar PW-5 regarding to brought the parcel and result of analysis from Junga on 11-04-2010 and handed them over to Kashmir Singh, hence this is fatal to the prosecution case.
(vii)The there is non-compliance with Section 52-A of the NDPS Act as the case property was not produced before the Magistrate for certification of the inventory.
(viii)That the PW-4 HHC Raj Pal himself stated in the examination-in-chief that on 15-03-2010, the MHC Kashmir Singh handed over the parcel along with NCB form in triplicate, sample seals to deposit the same with FSL Junga and same was deposit the parcel on 17-03-2010 at FSL Junga.
We have heard learned counsel for the parties and carefully gone through the records.
Mr. Owais Khan Pathan, learned counsel for the accused submitted that the judgment rendered by the learned Trial Court is perverse without application of judicial mind and suffers from material irregularities. It is submitted that the Investigating Officer during the course of investigation failed to comply with the mandatory and directory provisions under Sections 42 and 50 of the NDPS Act, 1985. The Investigating Officer failed to associate independent witnesses as mandated. Furthermore, there is also non-compliance of Section 52-A of the Act. It was also pointed out that the oral evidence led by the prosecution during the course of trial suffers from material contradictions, omissions and discrepancies. The prosecution failed to produce the seals used during the course of seizure proceedings and re-sealing proceedings, which is fatal. The learned counsel made specific reference to the personal search memo Ex.D1 and argued that the Investigating Officer prior to conducting the personal search of the accused did not adhere to the mandatory provision under Section 50 of the NDPS Act, 1985 vitiating the trial in its entirety. Hence, it is prayed that the appeal be allowed and the judgment of conviction and order of sentenced dated 30.12.2022 passed by learned trial Court be set aside.
Learned counsel for the appellant/accused in support of his arguments relied upon the judgments, Nadeem Ahamed versus The State of West Bengal, 2025 SCC online SC 1779, State of Himachal Pradesh versus Rajesh Kumar alias Raju, 2024 Law Finder(HP) 4036, State of Himachal Pradesh versus Sunil Kumar and another, 2016 Law Finder (HP) 1591, Criminal Appeal No.393 of 2012, decided on 28.09.2016 in State of HP versus Sunil Kumar, Criminal Appeal No.159 of 2025, decided on 11.05.2024, Ashok Kumar versus State of Himachal Pradesh (AIR 2017 SC 3751, AIR 2026 Supreme Court 1420).
Per contra, Mr. Gautam Sood, learned Deputy Advocate General submitted that the judgment rendered by the learned trial Court is well-reasoned and the conviction has been recorded on the basis of evidence on record without giving scope for contrary view. It was contended that the prosecution’s case pertains to the chance recovery and therefore, there was no requirement to resort to the provision under Section 50 of NDPS Act, 1985. The Investigating Officer has no prior information regarding the possession of Charas and therefore, the provisions under Section 42 of the Act is also not attracted to the facts of the case.
In this regard, it is submitted that the accused was intercepted and apprehended, at a deserted and isolated place, therefore, no witnesses could be engaged to witness the proceedings. Also, the factum of recovery of the contraband from exclusive and conscious possession of the accused can be inferred after going through the evidence of ASI Satpal examined as PW1, HC Vipin Kumar No.128 examined as PW2, and Inspector Ramesh Lal examined as PW10.
The aforesaid witnesses have fully supported and corroborated the factum of recovery of 1.5 Kgs of ‘Charas’ (Cannabis) from possession of the accused. These witnesses have not only supported the prosecution case to this effect, but also proved all the material documents, which were prepared by the Investigating Officer during the course of investigation. Since there are no material contradictions in the statement of the witnesses examined before the learned trial Court and the documentary evidence proved, therefore, there is no reason to disbelieve the prosecution’s case, which stands fully proved and resulted in the conviction of the accused.
In order to ascertain the legal and factual points raised by the learned counsel for the accused while making reference to the relevant provisions under Section 42 and Section 50 of the NDPS Act, 1985, the evidence on record needs to be considered in order to address the said contentions.
Evidently, as per the recitals in the rukka Ex.PW10/A, the accused was intercepted and apprehended about 400 meters ahead of Larji Dam, carrying a backpack(Pithu bag) on 13.03.2010 at about 11:45 AM. The investigating officer ASI Ramesh Lal (PW10) conducted the search of the backpack(Pithu bag) (Ex.P11) in possession of the accused on suspicion, leading to recovery of a polythene bag (Ex.P9), containing 1.5 Kgs of ‘Charas’(Cannabis). Therefore, it is evident that the recovery of contraband was effected from the backpack(Pithu bag) in possession of the accused. Although, the learned counsel has made specific reference to the presonal search memo Ex.D1. However, the aforesaid document was prepared by the Investigating Officer after the arrest of the accused. Therefore, under these circumstances, the Investigating Officer was not obligated to comply with the mandatory provision of Section 50 of NDPS Act, 1985.
In order to have the better perspective of the contentious issue raised regarding non-compliance of Section 50 of NDPS Act, 1985, it may be pertinent to refer to the said provisions and the condition on which the same are attracted.
The implication of the provisions under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, its applicability and effect of non-compliance thereof fell for consideration before the Hon'ble Supreme Court in a number of cases. It may be fruitful to refer to few important judgments in which the law has been settled by the Hon'ble Supreme Court i.e. State of Punjab versus Baldev Singh [1999 (6) SCC 172], AN Mustaffa Abdul Rahman Moosa versus State of Kerala [JT 1994 (6) SC 326: 1994 (6) SCC 569] and Pooran Mal versus Director of Inspection Investigating), New Delhi & Ors. [1974 (1) SCC 345], State of Punjab versus Balbir Singh 1994 (3) SCC 299.
Therefore, the question of compliance or non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, relevant only where search of a person is involved and said section is neither applicable nor attracted where no search of a person is involved. Search and recovery from a bag, brief case, container etc., does not come within the ambit of Section 50 of the N.D.P.S. 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 Magistrate for the purpose of search. The aforesaid issue is no more res-integra in view of the observations made by the Hon'ble Supreme Court in Madan Lal versus State of Himachal Pradesh [2003 Crl. L.J. 3868]: (2003) 7 SCC 465. State of Himachal Pradesh versus Pawan Kumar [JT 2005 (4) SC 373: 2005 (4) SCC 350]. Kalema Tumba versus State of Maharashtra (1999)8 SCC 257, Babu Bhai Odha versus State of Gujrat AIR 2006 S.O. 102, Ravindran versus Superintendent of Customs AIR 2007 S.O. 2040, Krishna Kanwar versus State, 2004(2) SCC 608. Vijaysinh Chandubha Jadeja versus State of Gujarat, (2011) 1 SCC 609.
The Hon'ble Supreme Court in State of H.P. versus Pawan Kumar, 2005(4) SCC 350, in State of Punjab vs. Baljinder Singh and Anr. 2019 (10) SCC 473, in Than Kunwar versus State of Haryana 2020 (5) SCC 260 and in Kallu Khan versus State AIR 2022 SC 50, the Hon'ble Supreme Court held that Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for the search of any 'person' would not apply to the extent to his bag and other articles being carried by him.
Hence, law is fairly settled that provisions under Section 50 NDPS Act are not attracted where personal search has not been carried out by the police.
Dwelling into the question of compliance of Section 42 of NDPS, Act 1985 reference can be made to the judgment of the constitution Bench of Hon’ble Supreme Court in Karnail Singh Versus State of Haryana (2009) 8 SCC 539.
It is well celebrated judgment on the statutory requirement of writing down and conveying information to the superior/supervisory officer prior to entry, search and seizure as per Section 42(1) and Section 42(2) of the NDPS, Act 1985 requiring a literal and substantial compliance.
The Hon'ble Supreme Court in Abdul Rashid Ibrahim Mansuri versus State of Gujarat (2000) 2 SCC 513 and Sajan Abraham versus State of Kerala (2001) 6 SCC 692, observed that while total non-compliance with requirements of sub sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay could be acceptable compliance of statutory requirement under Sections 42(1) and 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Having considered the ratio of law laid down by the Hon’ble Supreme Court in judgments referred supra, and also considered the facts of the case and the circumstances under which the accused was intercepted and apprehended while carrying 1.5 Kgs of ‘Charas’(Cannabis), the Investigating Officer was not obligated to resort to the provisions under Section 42 of the Act. Needless to emphasize that Section 42 is applicable when the search is made inside any building, conveyance, or enclosed place between sunrise and sunset, It necessarily does not apply to a recovery effected from a person in a public place. This position was elucidated in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal, 2018 (9) SCC 708.
It is admitted case of the prosecution that the Investigating Officer, ASI Ramesh Lal (PW10), during the course of search, recovery and seizure proceedings, did not associate any independent witness.
As per the evidence on record, the accused was intercepted and apprehended at a place with no vicinity, therefore, the presence of independent witness could not be secured during the course of proceedings. In order to support the aforesaid fact, reference has been made to the spot map Ex.PW10/B.
Apart from this, the official witnesses of the recovery, namely ASI Satpal (PW1), HC Vipin Kumar No.128 (PW2) and Inspector Ramesh Lal (PW10), have explicitly referred in their evidence, the facts and circumstances, which prevented the police party from associating independent witnesses during the course of proceedings. The contentious issue raised by the learned counsel for the accused regarding non-association of independent witnesses during the course of proceedings does not appear to be deliberate and intentional. It has come in the evidence that the accused was intercepted and apprehended at a deserted and isolated place, therefore, there was no occasion for the Investigating Officer to secure the presence of independent witnesses.
Even otherwise, the law is fairly settled that the prosecution case cannot be disbelieved due to non-association of independent witnesses.
The law is fairly settled that the prosecution case cannot be thrown out due to non-association of independent witnesses. The Hon'ble Supreme Court in Kalpnath Rai vs. State, 1998 AIR(SC)201, Kashmira Singh Versus State of Punjab 1999 (1) SCC 130, Rizwan Khan versus State of Chattisgarh (2020) 9 SCC 627, Surender Kumar vs. State of Punjab, (2020) 2 SCC 563, Balwinder Singh & Anr. Versus State of HP 2020 Cr.L.J 1684 and Raveen Kumar Vs. State of H.P. (2021) 12 SCC 557, held that the prosecution case cannot be discarded merely because independent witnesses were not associated.
This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197.
A similar view was taken in Kehar Singh v. State of H.P., 2024 SCC OnLine HP 2825.
Thus, in view of the binding precedents of this Court and the Hon'ble Supreme Court, the non-association of independent witnesses is not fatal, and the prosecution’s case cannot be either discarded or doubted due to non-association of independent witnesses. However, the duty has been cast upon the Court to carefully scrutinize the evidence of police officials, who otherwise are competent witnesses under the law.
Therefore, in view of the ratio of law laid down by the Hon’ble Supreme Court in the judgments referred supra, the non-association of independent witnesses is not a circumstance which can be construed against the prosecution’s case. Therefore, the prosecution’s case cannot be either discarded or doubted due to non-association of independent witnesses.
Now, adverting to prosecution evidence regarding the search of backpack (Pithu bag) (Ex.P11) and recovery of contraband i.e. 1.5 Kgs of ‘Charas’(Cannabis) (Ex.P10) from exclusive and conscious possession of the accused. PW1 ASI Satpal has testified that on 13.03.2010 he was accompanying a Police party headed by ASI Ramesh Lal along with other police officials namely HC Hari Singh No.407, HHC Roop Singh No.183, Constable Subhash Chand No.658 and Constable Vipin Kumar No.637. The police party left Police Station Aut for routine patrolling in official vehicle No.HP33B-1378 being driven by Constable Himmat Ram. The police part was on routine patrolling towards Shilli and Larji etc. At about 10:45 AM, the police party after travelling about 400 meters of Larji Dam spotted the accused coming from Panjayee towards Larji carrying a backpack (Pithu bag). The accused was frightened on seeing the police officials and started answering the call of nature. The vehicle was stopped on seeing his suspicious conduct and thereafter he was apprehended and the backpack in his possession was checked leading to recovery of a polythene packet containing black sticks and pan cakes, which was found to be ‘Charas’. The place was secluded and there were no independent persons. Thereafter, the contraband was weighed and was found 1.5 Kgs. The said contraband was put in the polythene packet which was packed in polythene and later sealed in a cloth parcel by affixing six seals of impression ‘M’. The sample seal ‘M’ (Ex.PW1/A) was taken on a separate piece of cloth and thereafter the case property, NCB-I form in triplicate and backpack were seized vide memo Ex.PW1/B the presence of the accused and the official witness HC Vipin Kumar No.128 (PW2).
PW2 HC Vipin Kumar No.128 has made a similar statements thereby putting one record the material particulars regarding the movement of police party, spotting of the accused along with the backback and search leading to recovery of 1.5 Kgs of ‘Charas’(Cannabis).
Inspector Ramesh Lal being Investigating Officer examined as PW10 has also come forward supporting the prosecution facts and putting on record the sequence of events under which the accused was apprehended and searched leading to recovery of the contraband 1.5 Kgs of Charas (Cannabis) from his exclusive and concious possession. He has also put on record in detail the proceedings carried out pursuant to recovery of contraband i.e. sealing of the case property vide recovery and seizure memo Ex.PW1/B filling relevant columns in NCB-I form in triplicate Ex.PW7/B, scribing of rukka Ex.PW10/A, preparing of spot map Ex.PW10/B and arresting of the accused vide arrest memo vide Ex.PW1/C.
The statement of official witnesses referred and discussed hereinabove goes to prove the recovery of 1.5 Kgs of Charas(Cannabis) from the Pithu Bag (Ex.P11) in possession of the accused. The statement of the official witnesses does not suffer from any material contradictions and infirmities so as to doubt the prosecution case. Although, there are minor variations in their respective testimonies, but those contradictions do not go to the root of the matter in order to discard the entire prosecution case. This Court is mindful of the fact that the witnesses cannot depose identically and memory fades with the passage of time. Minor variations in their respective testimonies cannot be annexed with undue importance.
The Hon'ble Supreme Court in Rajan v. State of Haryana, 2025 SCC OnLine SC 1952 has observed:
“32.The appreciation of ocular evidence is a hard task. There is no fixed or straitjacket formula for the appreciation of the ocular evidence. The judicially evolved principles for the 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 scrutinize 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 eye-witness 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, a hyper-technical 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 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 videotape 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 that 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 in details from imagination on the spur of the moment. The subconscious mind of the witness sometimes 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 a contradiction. Unless the former statement has the potency to discredit the latter statement, even if the latter 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 (1983) 3 SCC 217: 1983 Cri LJ 1096: (AIR 1983 SC 753) Leela Ram v. State of Haryana (1999) 9 SCC 525: AIR 1999 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)”
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 has observed:-
“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)
“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 a 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 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].
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]].
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 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].”
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 statements of the prosecution witnesses inasmuch as these witnesses have given different timings 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 statements 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.”
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 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.”
Therefore, in view of the ratio of law laid down by the Hon'ble Supreme Court, this Court and after carefully going through the statements of the official witnesses, namely ASI Satpal (PW1), HC Vipin Kumar No.128 (PW2) and Inspector Ramesh Lal (PW10), we do not find any material omissions, contradictions, or discrepancies to negate the prosecution case.
In Budh Ram Vs. State of H.P. 2022 CriLJournal 4254, it is laid down that the testimonies of police officials cannot be discarded on the ground that they belong to the police force.
Similar is the judgment in Karamjit Singh v. State AIR 2003 SC 3011.
The factum of resealing of the case property in compliance with Section 55 of the NDPS Act, 1985, can be inferred after going through the resealing certificate (Ex.PW7/D) and the evidence of Inspector Sureshtha Thakur examined as PW7. As regards the minor discrepancy in the seal impression on the NCB-I form Ex.PW7/B being ‘И’ not ‘N’, it is of no consequence since the seal impression ‘И’ on the NCB-1 form in triplicate is a mirror image of ‘N’, and therefore, the aforesaid fact is inconsequential to discard the veracity of the resealing of the case property.
The necessary compliance under Section 57 of the NDPS Act can be inferred after going through the Special Report (Ex.PW9/A), the entry in the Special Reports Register (Ex.PW9/B) and the evidence of HC Lakshman Dass No.864 examined as PW9. It is further evident that the case property which was sealed as per the recitals of the seizure memo (Ex. PW1/B) and resealed as per the resealing certificate (Ex.PW7/D) was sent intact to State FSL Junga vide RC No. 165/09-10 dated 17.03.2010 (Ex.PW6/E) through HHC Rajpal Singh No.741 (PW4). As per the SFSL Report (Ex. PX), the case property was received in the manner, it was sealed and resealed during the course of proceedings. Therefore, it clearly indicates that there was no tampering with the case property during the course of investigation proceedings. Apart from this, the SFSL report (Ex. PX) also established that the contraband which was recovered from the accused was ‘’Charas’(Cannabis).
The factum of non-compliance of Section 52A of the NDPS Act, 1985, is also not fatal to the prosecution case in view of the law laid down by the this Court in Sandeep Kumar Vs. State of HP in Cr. Appeal No.267 of 2017. The aforesaid aspect has been comprehensively dealt by the learned trial Court in paragraph No. 63 of the impugned judgment by making reference to Sandeep Kumar (supra).
Aforesaid aspect has also been dealt by Hon’ble Supreme Court in recent judgment Mehboob Shah Vs. State of Madhya Pradesh 2026 INSC 729 (neutral citation).
After carefully considering all the material aspects and the contentions raised by the parties, we are satisfied that the view taken by the learned Special Judge does not suffer from any perversity. The material and evidence on record have been duly appreciated with the support of relevant case law, therefore, the findings recorded therein cannot be faulted on any ground.
In view of the above, the present appeal fails and it is dismissed.
A copy of this judgment along with the record of the learned Trial Court be sent back forthwith.