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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 passed by the learned Special Judge-1, Sirmaur, District Nahan, H.P., in Sessions Trial No.21-ST/7 of 2021 (CIS CNR No.HPSI01-000849-2021), titled as ‘State of Himachal Pradesh Vs. Kedar Singh’, whereby the appellant/accused has been convicted for the offence punishable under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 vide judgment of conviction and order of sentence dated 31.07.2023 and has been sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of ₹1,00,000/- for the said offence and in default of payment of fine amount, to further undergo simple imprisonment for a term of two years. 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 Sangrah, District Sirmaur, H.P., in case FIR No.18/2021 dated 23.03.2021 for being in exclusive and conscious possession of 2.541 Kgs of ‘Charas’(Cannabis). The accused was prosecuted for the commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and was subsequently convicted by the learned trial Court vide impugned judgment of conviction and order of sentence dated 31.07.2023 in Sessions Trial No.21-ST/7 of 2021 (CIS CNR No.HPSI01-000849-2021, titled as ‘State of Himachal Pradesh Vs. Kedar Singh’.
The case for the prosecution as set-out against the accused, in short, is as under:
3(a). On 23.03.2021 at about 4:30 PM at village Bhorli (Sangrah), District Sirmaur, H.P., the accused was found in exclusive and conscious possession of 2.541 Kgs of ‘Charas’(Cannabis).
3(b). On 23.03.2021, at about 07:10 AM, a Police party headed by Inspector Saravjeet Singh, Incharge, Special Investigating Unit(SIU), Nahan, H.P., left for routine patrolling, traffic checking, law and order duty and crime detection duty towards Renukaji, Sangrah and Haripurdhar etc. He was accompanied by other police officials of Special Investigation Unit(SIU), Nahan, namely HC Julfan Mohd. No.08, Constable Navraj No.568, Constable Amit Kumar No.427, HC Pankaj Chandel No.68, HC Raj Kumar No.349 and Constable Suheb Ahmad No.603. The police party was traveling in official vehicle No.HP-18B-2615 being driven by HHC Tejinder Singh No.428 vide Rapat No.5 dated 23.03.2021. At about 4:30 PM, the police party during the course of patrolling reached at place Bhorli (Sangrah) where they spotted and intercepted the accused coming from Sangrah side holding a carry bag in his right hand. The accused on seeing the Police party became perplexed and turned back and started walking swiftly. The police officials on seeing the act and conduct of the accused apprehended him. His name and identity was ascertained and thereafter Inspector Saravjeet Singh sent Head Constable Julfan Mohd. No.08 towards Sangrah side and Constable Navraj No.568 towards Haripurdhar side to arrange and to secure the presence of independent witnesses. However, both the officials turned wihout success since the accused was apprehended at an isolated place with no vicinity. Thereafter, the Investigating Officer constituted a search party by associating two official witnesses namely HC Pankaj Chandel No.68 and HC Ram Kumar No.349 and it was in their presence and in presence of the accused, the carry bag was searched leading to recovery of 2.518 Kgs of ‘Charas’(Cannabis).
3(c). Pursuant to recovery of 2.541 Kgs of ‘Charas’ (Cannabis) from exclusive and conscious the possession of the accused, Inspector Saravjeet Singh being Investigating Officer conducted cordial seizure formalities. The contraband was put in a ploythene and thereafter in a carry bag, which was sealed in a cloth parcel by affixing eight seals of impression ‘X’. The sample seal impression 'X' was taken on a separate piece of cloth and the seal ‘X’, after its use, was handed over to HC Pankaj Chandel No.68. Thereafter, the Investigating Officer filled relevant columns of NCB-I form in triplicate. The case property i.e. sealed parcel along with sample seal impression 'X' and NCB-I form in triplicate, were taken into possession vide recovery and seizure memo in the presence of official witnesses and the accused. Copy of the seizure memo was furnished to the accused free of cost. The Investigating Officer after completing the seizure formalities, scribed rukka and sent the same through Constable Amit Kumar No.427 to SHO Police Station, Sangrah, District, Sirmaur, H.P. for registeration of FIR against the accused and in pursuance thereof, case FIR No.18/21 dated 23.03.2021 under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 was registered at Police Station Sangrah, District Sirmaur, H.P. Thereafter, ASI Gobind Ram Incharge Police Post, Haripurdhar came on the spot as second Investigating Officer and took over investigation vide Rapat No.08 Roznamcha dated 23.03.2021 from Inspector Saravjeet Singh vide separate inventory memo.
3(d). ASI Gobind Ram after taking over investigation from Inspector Saravjheet Singh recorded the statements of witnesses under Section 161 Cr.PC and prepared the spot map. Thereafter, he returned to the Police Station Sangrah, District Sirmaur, H.P. and presented the case property along with accused before SI Mehar Chand SHO Police Station Sangrah. Thereafter, the case property was re-sealed by SI Mehar Chand by affixing seven seals of Impression ‘M’. He also issued re-sealing certificate in terms of Section 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 and thereafter handed over the case property to HC Dev Dutt No.506 MHC Police Station Sangrah for safe custody. The accused was thereafter arrested at 10:45 PM on 23.03.2021 at Police Station Sangrah, in accordance with law.
3(e). On 25.03.2021, the Investigating Officer ASI Govind Ram prepared Special Report under Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985 and handed over to the Supervisory Officer/Sub Division Police Officer Sangrah at 2:35 PM regarding which requisite entries were made in Special Reports Register by HC Vidya Nand No.272 Reader to SDPO Sangrah.
3(f). The case property duly sealed and re-sealed was later sent for forensic examination to State Forensic Science Laboratory through Constable Ram Chander No.30 vide RC No.113/2020-21 dated 26.03.2021. As per SFSL Report No.1191 NDPS Division 465/2021 dated 06.04.2021, the contraband substance was found to be an extract of Cannabis and sample of ‘Charas’ and the quantity of purified resin was 34.75% w/w.
3(g). Pursuant to completion of the investigation, the accused was found in exclusive conscious possession of 2.541 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 Sangrah and was accordingly filed before the learned Special Judge-I, Sirmaur, District Nahan, H.P., on 31.05.2021. The accused was put to trial in Sessions Trial No.21-ST/7 of 2021 (CIS CNR No.HPSI01-000849-2021), titled as ‘State of Himachal Pradesh Vs. Kedar Singh’.
The accused was charged for commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985 vide order dated 08.09.2021, to which he pleaded not guilty and claimed trial.
The principal prosecution witness pertaining to search of the accused, recovery of the contraband and seizure thereof are Constable Amit Kumar No.427 examined as PW8, HC Pankaj Chandel No.68 examined as PW10, HC Navraj No.03 examined as PW11 and Saravjeet Singh being investigating Officer examined as PW12. ASI Govind Ram being second Investigating Officer examined as PW13. Apart from this, PW9 is the statement of SI Mehar Chand, SHO Poilice Station Sangrah, he conducted re-sealing of the case property and issued the re-sealing certificate under Section 55 of the Act. The other witnesses examined by the prosecution are formal in nature, who were associated by the Police at various stages of investigation.
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. Copy of DDR No.15 (Ext.PW1/A), Copy of DDR No.8 (Ext.PW2/A), Abstract of special report (Ext.PW5/A), Copy of letter (Ext.PW5/B), Certificate u/S 65-B Evidence Act (Ext.PW6/A), Certificate u/S 65-B Evidence Act (Ext.PW7/A), Abstract of malkhana register (Ext.PW7/B), Copy RC (Ext.PW7/C), Copy of GDR (Ext.PW7/D to H, Ext. PW7/J & K), Rukka (Ext.PW9/A), FIR (Ext.PW9/B), NCB-1 Form (Ext.PW9/C), Specimen impression of seal (Ex.PW9/D), Reseal certificate (Ext.PW9/E), Identification memo (Ext.PW10/A), Specimen impression of seal X (Ext.PW10/B), Seizure memo (Ext.PW10/C), Certificate u/S 65-B Evidence Act (Ext. PW11/A), Photographs (Ext.P5 to Ext.P13), Inventory memo (Ex.PW12/A), Site plan (Ext.PW13/A), Arrest memo (Ext.PW13/B), Copy of application (Ext.PW13/C), Certificate (Ext.PW13/D) and SFSL report (Ext.PW13/E).
The substance of the prosecution case was put to the accused in his statement recorded under Section 313 Cr.PC on 05.04.2023, wherein he has denied the prosecution case in its entirety by raising the defence of denial simplicitor and false implication by the police.
The accused was called upon to enter into defence and in support thereof examined two witnesses Mohar Singh as DW1 and Prithvi Singh Adda Incharge Renukaji as DW2.
The learned trial Court, after considering the material and evidence on record and hearing the parties, found the accused guilty for being in exclusive and conscious possession of 2.541 Kgs of ‘Charas’(Cannabis), which was recovered on 23.03.2021 at 4:30 PM at village Bhorli (Sangrah), District Sirmaur, H.P. Accordingly, he was convicted for the commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985 in Sessions Trial No.21-ST/7 of 2021 (CIS CNR No.HPSI01-000849-2021, titled as ‘State of Himachal Pradesh Vs. Kedar Singh’, vide impugned judgment of conviction and order of sentence dated 31.07.2023.
Feeling aggrieved and dissatisfied by the impugned judgment of conviction and order of sentence dated 31.07.2023 passed by the learned Special Judge-I, Sirmaur, District Nahan, H.P., in Sessions Trial No.21-ST/7 of 2021 (CIS CNR No.HPSI01-000849-2021), titled as ‘State of Himachal Pradesh Vs. Kedar Singh’, the accused is in appeal before this Court on various grounds.
11. GROUNDS OF APPEAL:
(i)“That the impugned judgment and order of sentence is highly illegal, unjust wrong and without applying the judicial mind. It is humbly submitted that the Ld. Trial Court wrongly appreciated the prosecution evidence and as such wrongly comes to the conclusion whereby the appellant has been convicted.
(ii)That the Ld. Trial Court has passed the impugned judgment and order, without any cogent and convincing evidence on record. The whole case of prosecution comes under the clouds of suspicion, as the prosecution evidence which came forth during the trial, was controverting each other and there was material contradiction in the said statements proseuction witness.
(iii)That the Ld. Trial Court has totally ignored the defense put by the appellant and conviction was based on total ignorance of the defense led by the appellant.
(iv)That there is no evidence to come to the conclusion of conviction as has been returned by the Ld. Trial Court as the evidence of prosecution is full of contradictions. Moreover there is the set principle of criminal jurisprudence that one cannot be convicted on the basis insufficient evidnece, but in the case in hand the said principle has been brushed aside.
(v)That there is no cogent, convincing and reliable evidence which can bring the guilt at home of the appellant, but despite that the impugned judgment of conviction has been passed by the Ld. Trial Court.
(vi)That there are material contradictions, inconsistency and improvements in the statements the conviction could not be passed. Moreover there are Etna of judgments of this Hon’ble Court as well as the Hon’ble Apex Court of India which go to show that in such kind of cases as is case in hands, conviction have not been given.
(vii)That as per the prosecution story the spot shown is the road and there use to ply the traffic frequently and to the utmost surprise no independent witnesses have been associated and the police official witnesses falsely told that there were no independent witnesses available and further also falsely disclosed that there were no traffic on spot. It is humbly submitted that entire evidence of the prosecution is false and have wrongly been appreciated by the Ld. Trial Court below which have gravely prejudiced the appellant. Hence on this ground also present appeal may be allowed.
(viii)That there are the material contradictions in the statement of the witnesses of the prosecution and the same are not trustworthy if the same are to be seen vis-a-vis the statement of the defense witnesses and the material placed on record. It is humbly submitted that despite the fact that the prosecution story is completely vague and false which can be evident from the evidence adduced on record but despite that the Ld. Court below convicted and sentenced the applicant. Hence on this ground present appeal may be allowed.”
We have heard learned counsel for the parties and carefully gone through the records.
Learned counsel appearing for the accused submitted that the judgment rendered by the learned Trial Court is unsustainable since the same has been passed without application of judicial mind and suffers from material irregularities and omissions. It is submitted that the Investigating Officer failed to comply with the mandatory and relevant provisions under Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Furthermore, the Investigating Officer deliberately did not associate independent witnesses despite having opportunity to do so. 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, which constitutes of official witnesses suffers from material contradictions, omissions and discrepancies. Therefore, considering the aforesaid facts and circumstances, the allegations and accusations against the accused are not proved and he is liable to be acquitted by setting aside the judgment passed by the learned trial Court.
Learned counsel for the respondent-State argued that the judgment rendered by the learned trial Court is well-reasoned and does not suffer from material irregularity and omissions therefore, liable to be affirmed. It was also submitted that the learned trial Court appreciated the oral and documentary evidence and recorded conviction on the basis of the said evidence, does not give any scope for contrary view. It was also contended that the prosecution’s case pertained to chance recovery, therefore, there was no legal requirement to resort to the provisions under Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
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 led by the prosecution needs to be considered meticulously in order to address the said contentions.
As is evident, the rukka Ex.PW9/A puts on record the sequence of events pertaining to the recovery of contraband from the accused. As per this document, on 23.03.2021 at about 4:35 PM at village Bhorli (Sangrah), District Sirmaur, H.P., the accused was intercepted and apprehended with a carry bag containing 2.541 Kgs of ‘’Charas’(Cannabis). The aforesaid document does not refer that the police had any prior information regarding the movement of the accused along with the contraband. Since the accused was apprehended during routine patrolling leading to recovery of the contraband from the carrybag being carried by him, therefore, under the given circumstances, the Investigating officer was not obligated to comply with the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances 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.C. 102, Ravindran versus Superintendent of Customs AIR 2007 S.C. 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, 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 of NDPS Act are not attracted where personal search has not been carried out by the police.
Dwelling into the question of non-compliance of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985, it may be pertinent to refer that the Police party during routine patrolling had no prior information against the accused, therefore, the said provisions are also not attracted in the present case.
It is admitted case of the prosecution that the Investigating Officer Inspector Saravjeet Singh (PW12) during the course of search of the accused, recovery of the contraband from the carry bag and during seizure proceeding did not associate any independent witnsses. However, non-association thereof is well-justified and duly recorded since the accused was apprehended at deserted and isolated place with no vicinity. It is not the case where Investigating Officer failed to make efforts or endeavour to look for and secure the presence of independent witnesses. It is discernible that HC Julfan Mohd. No.08 and Constable Navraj No.03 (PW11) were sent for the said purpose, however, they returned without success. It is also pertinent to refer that in the month of March, 2021 the country was under lockdown due to COVID-19 Pandemic, therefore, the movement of the general public was highly restricted and the reasons for non-association of independent witnesses as emerging on record cannot be doubted. The fact that the accused was apprehended at a deserted place is further evident after referring to the spot map Ex.PW13/A.
The primary defence of the accused is that he is resident of village Jarva, which is stituated at Haripur-Ronhat Road and he had no occasion to be at village Bhorli (Sangrah) at the relevant time. On the said date, he was present in the shop of Mohar Singh (DW1) and village Jarva Juneli from where he was picked up by the Police, which came from Haripurdhar side and thereafter, he was taken on the spot and was falsely implicated. The accused in support of this fact examined Mohar Singh as DW1, however, after carefully perusing his evidence, there is nothing in his evidence to conclusively establish the presence of the accused in his shop on the day of incident.
Apart from this, the accused also examined Prithvi Singh, Adda Incharge Renukaji as DW2 and has placed on record the documents being the time table of HRTC buses plying on the route as Ex.DW2/A on the day of occurrence, however, the aforesaid evidence is also of no help to the accused. The date and time at which the accused was apprehended does not establish the crossing of the HRTC buses from the spot at the relevant time.
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 said reason. 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.
Now, adverting to the prosecution evidence regarding the recovery of contraband i.e. 2.541 Kgs of ‘Charas’(Cannabis) from exclusive and conscious possession of the accused. In this regard, the statements of Constable Amit Kumar No.427 examined as PW8, HC Pankaj Chandel No.68 examined as PW10, HC Navraj No.08 examined as PW11 and Inspector Saravjeet, Investigating officer examined as PW12 needs to be considered.
PW8 Constable Amit Kumar No.427 has testified that on 23.03.2021 he was accompanying Inspector Saravjeet, Incharge SIU, Nahan along with other police officials and the Police party was on routine patrolling towards Haripurdhar side. They started from Nahan at 7:00 AM and at about 4:30 PM when they reached at a place just 5 kms. away from Haripurdhar, they intercepted accused coming from Sangrah side with a carry bag in his right hand, who on seeing the police official became perplexed and turned back. The police officials stopped him and ascertained his identity and thereafter, the Investigating Officer Inspector Saravjeet Singh sent Constable Julfan Mohd. No.08 towards Sangrah side and Constable Navraj No.568 towards Haripur side to secure the independent witnesses, however, both the officials returned without success and thereafter, a search party was constitued by associating two official witnesses HC Pankaj Chandel No.68 (PW10) and HC Ram Kumar No.349. Thereafter, the carrybag was searched leading to recovery of 2.518 Kgs of ‘Charas’(Cannabis). The Charas was again put up in the same polythene and carrybag was sealed in a cloth parcel after affixing eight seals of impression ‘X’. The sample of seal was taken on different pieces of cloth. The Investigating Officer also prepared and identify memo of the contraband. The parcel containing Charas was taken into possession and memo to this effect was also prepared. Constable Navraj Singh No.03 took photographs with his mobilephone. The Investigating Officer prepared rukka and handed over the same to him, which he took to Police Station Sangrah on the basis of which FIR was registered against the accused.
PW10 HC Pankaj Chandel No.68 has testified that on 23.03.2021 he was accompanying a Police party headed by Inspector Saravjeet Singh, Incharge SIU, Nahan along with other police officials, who were on routine patrolling towards Renukaji Haripurdhar in official vehicle. At about 4:30 PM when the Police party was returning from Haripurdhar and reached about 5 Kms from Haripurdhar, near Bhuiri Mod they spotted the accused with a carry bag. On seeing the police official, man turned back and started walking swiftly. The Police party on suspicion apprehended him and thereafter, the Investigating officer sent HC Julfan Mohd. towards Sangrah side and Constable Navraj No.03 towards Haripurdhar side to secure the presence of independent witnesses, but they returned on the spot after 15 minutes without any success. Thereafter, he was associated during the course of search proceedings along with HC Ram Kumar No.349. The carry bag of the accused on being searched led to recovery of 2.518 Kgs. of ‘Charas’(Cannabis), thereafter, cordial seizure formalities were completed by the Investigating Officer.
PW11 HC Navraj No.03 has also testified in support of the prosecution case by making specific referrence to the presence of the Police party at village Bhuiri at about 4:30 PM on 23.03.2021 where the accused was apprehended along with 2.541 Kgs of the contraband. He has also supported the factum regarding the seizure and sealing of the case property.
PW12, Inspector Saravjeet Singh being Incharge, Special Investigating Unit(SIU), Nahan has also supported the prosecution case regarding the recovery of the contraband from exclusive and conscious possession of the accused. His statement being on the similar lines has not been reproduced to avoid repetition.
The official witnesses of the search, recovery and seizure, namely Constable Amit Kumar No.427 (PW8), HC Pankaj Chandel No.68 (PW10), HC Navraj No.03 (PW11) and Inspector Saravjeet Singh (PW12) have supported and corroborated the prosecution case in its entirety and there are no material contradictions in the statement of these witnesses rendering them unworthy of credence.
Learned counsel for the accused has although referred the contradictions, omissions and discrepancies in the statement of Constable Amit Kumar (PW8) regarding the time of handing of the rukka Ex.PW9/A to MHC at Police Sangrah, however, the statement of HC Dev Dutt No.506 (PW7) MHC Police Station Sangrah dispels the said contradictions since as per his evidence he received the rukka at 7:05 PM and subsequently he recorded the FIR No.18/21 Ex.PW9/B at 7:54 PM. The other contradictions pointed out by the learned counsel is regarding the delivery of the case file to the second Investigating Officer ASI Govind Ram (PW13). However, the careful perusal of the statment of Constable Amit Kumar No.47 (PW8) and statement of ASI Govind Ram (PW13) does not reflect any major contradiction on this aspect.
The minor variations and contradictions in the evidence of the official witnesses apparently do not go to the root of the matter so as to discard the prosecution case. This Court is mindful of the fact that the witnesses after lapse of time cannot be expected to depose identically and uniformally since the memory fades with the passage of time. Therefore, the minor variation 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].
31.What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case the Court has to consider whether the witness was stating the truth or not. [Ref. Sunil Kumar v. State (NCT of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367: 2004 SCC (Cri) 1055]].
32.These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to state a minute-by-minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded 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.
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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 Constable Amit Kumar No.427 (PW8), HC Pankaj chandel No.68 (PW10), HC Navraj No.08 (PW11) and Inspector Saravjeet, Investigating Officer examined as PW12, we do not find any material omissions, contradictions, or discrepancies to negate and disbelieve the prosecution case.
There are no other material contradictions in their respective evidence rendering the prosecution case unbelievable. Therefore, minor contradictions discrepancies, in the testimonies of the police officials are liable to be ignored without giving undue importance.
Other link evidence adduced by the prosecution is complete. The case property was duly sealed vide recovery and seizure memo Ex.PW10/C and subsequently re-sealed vide re-sealing certificate Ex.PW9/C. Furthermore, necessary compliance under Section 57 NDPS Act and Section 52-A (2) NDPS Act can be inferred after going through the copy of Special Reports Register Ex.PW5/A, Special Report under Section 57 NDPS Act Ex.PW5/B and Certificate under Section 52A(3) NDPS Act Ex.PW13/D.
The learned counsel for the accused also argued that there is non-compliance of Section 52A of Narcotic Drugs and Psychotropic Substances Act, 1985 since the proper sampling of the case property was not conducted by the concerned Magistrate. The arguments put forth by the learned counsel in this regard has no application in the present case since the whole bulk of the contraband was sent to SFSL where the contents of the parcel was found 2.541 Kgs of ‘Charas’(Cannabis), which is apparently 34 grams more than which was weighed by the police team on the spot. Since the entire case property was produced before the trial Court during the course of trial which was duly identified by the witnesses and the whole was sent for chemical/forensic examination, therefore, the aforesaid plea is not tenable. Even otherwise, the certificate under Sub-Section (3) of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 Ex.PW13/D fulfills the necessary requirements and the safeguards to be observed by the Magistrate under the said provisions.
the factum of re-sealing of the case property in compliance to Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985 can be inferred after going through the re-sealing certificate Es.PW9/E issued by SI Mehar Chand (PW9) SHO Police Station Sangrah. The aforesaid document is duly supported by the said witness in his testimony. The necessary complinace under Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 can be inferred after going through Special Report Ex.PW5/B and the copy of Special Reports Register Ex.PW5/A. The aforesaid documents are duly proved the statement of HC Vidya Nand No.272 (PW5) being Reader to SDPO, Sangrah.
It is further evident that the case property, which was sealed as per the recitals of the seizure memo (Ex. PW10/C) and resealed as per the resealing certificate (Ex.PW9/E) was sent intact to State FSL Junga vide RC No. 113/2020-21 dated 26.03.2021 (Ex.PW7/C) through Constable Ram Chander No.30(PW3). As per the SFSL Report (Ex. PW13/E), 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. PW13/E) also establishes that the contraband which was recovered from the accused was tested as ‘’Charas’(Cannabis).
In criminal law, there is a fundamental principle known as the ‘Presumption of Innocence’, which states that an accused is innocent until proven guilty. This fundamental principle is derived from the maxim “Semper necessitas probandi incumbitei qui agit”. This means that the burden of proof lies with the person who is charging you. Section 35 of the NDPS Act deals with the presumption of the culpable mental state of an accused. This implies that the court will presume that the accused has such a mental state to proceed with the prosecution.
The Narcotic Drugs and Psychotropic Substances Act, 1985 requires a person charged with an offence to rebut the presumption against him and show that he has not committed the act constituting an offence.
The Supreme Court of India in Naresh Kumar alias Nitu v. State of Himachal Pradesh AIR 2017 SC 3859 held that the presumption of guilt under Section 35, and the requirement of satisfactory explanations of possession under Section 54, are rebuttable. Nonetheless, the prosecution remains responsible for proving the charges beyond any reasonable doubt. Specifically, Section 35(2) states that a fact can be regarded as proved if it is established beyond a reasonable doubt and not by the preponderance of the probabilities.
Furthermore, in Noor Aga v. State of Punjab and Ors (2008) 16 SCC 417, the Apex Court held that Sections 35 and 54 impose a reverse burden on the accused, and thus, are constitutional The standard of proof required by the accused to prove his innocence is lower than that required by the prosecution.
From the foregoing, it can be concluded that conscious possession means having a mental state of possession at the same time as having physical possession of the illegal substance. Under criminal law, the elements of 'Actus Reus' and 'Mens Rea' are essential elements of a criminal offence. Similarly, under the NDPS Act, the physical and mental possession of drugs are essential elements to constitute an offence.
After carefully going through the material evidence adduced by the prosecution and considering the relevant provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 as referred and discussed hereinabove, it can be inferred that the learned trial Court has comprehensively dealt with all the material aspects emerging on record. Therefore, we are satisfied that the view taken by the learned Special Judge does not suffer from any perversity warranting interference by this Court. 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.