HEM BHADUR vs STATE

2013:HHC:6567-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
High Court of H.P.
Criminal Appeal No.139 of 2013
Reserved on: 30.05.2026
Date of decision: 14.07.2026
Uploaded on: 14.07.2026
Hem Bhadur alias Hem Raj. ...Appellant.
Versus
State of Himachal Pradesh. …Respondent.
Coram
Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Hon’ble Mr. Justice Ranjan Sharma, Judge.
1
Whether approved for reporting? Yes.
For the appellant : Mr. Deven Khanna, Advocate.

For the respondent(s) : Mr. Gautam Sood, Deputy Advocate
General.

Vivek Singh Thakur, Judge
Appellant has preferred this appeal against judgment
dated 19.03.2013 passed by Special Judge, Kullu, in Sessions Trial
No.25 of 2011 (RBT No.98 of 2012) , titled as State vs. Hem
Bhadur alias Hem Raj , in case FIR No.36 of 2011 dated
24.02.2011, registered at Police Station Kullu, District Kullu, under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for brevity, ‘ NDPS Act ’), whereby the appellant has been
convicted for having been found in possession of two kilograms of

1

Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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charas on 24.02.2011 at 9:00 a.m. at a place known as Cheel Mour,
High Court of H.P.
near Sarsari, and has been sentenced under Section 20 of the NDPS
Act to undergo rigorous imprisonment for ten years and to pay a fine
of Rs.1,00,000/- and, in default of payment of fine, to further undergo
imprisonment for six months.
2. A Division Bench of this High Court, vide judgment dated
05.07.2013 passed in the present appeal (Criminal Appeal No.139
of 2013), had acquitted the appellant on the basis of the judgment
passed by the Division Bench of this Court in Sunil Kumar versus
State of H.P. , reported in Latest HLJ 2010 (HP) 207 .
3. The State had assailed the aforesaid judgment dated
05.07.2013 before Apex Court by filing Criminal Appeal No.1089 of
2016 , titled as State of H.P. versus Hem Bhadur alias Hem Raj ,
which has been allowed by the Apex Court vide order dated
09.02.2022, and the order of acquittal passed by the Division Bench
of this Court has been set aside, on the basis of the judgment
delivered by the Apex Court in Hira Singh and Another versus
Union of India and Another , reported in (2020) SCCOnline SC
382 : (2020) 20 SCC 272 : (2022) 1 SCC (Cri.) 733, and the matter
has been remanded to this Court for deciding the appeal afresh.
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4. The prosecution case is that on 24.02.2011, the police
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party headed by PW-7 ASI Mohan Lal, consisting of Constable
Tarsem Chand/Tarsem Singh (PW-6), Constable Sher Singh (not
examined being given up), Home Guard Dalip Singh (not cited as a
witness) and Driver LHC Baldev Singh (PW-5), in official vehicle
bearing registration No.HP-34A-9986, along with ammunition,
search light, wireless set etc., left the Police Station at about 3:50
a.m. for laying a naka at Cheel Mour at Sarsari. In this regard, GD
Entry No.6(A) (Ex. PW-1/A) was recorded by Inspector Sher Singh,
SHO (PW-4), on 24.02.2011 at 3:50 a.m.
5. After reaching at Cheel Mour, the police party laid a naka
and started checking vehicles. At about 7:00 a.m., a person was
noticed by the police party coming from Sarsari side along with a bag
in his right hand, but on noticing the police party and vehicle, he
immediately turned around and tried to flee towards the Sarsari side.
However, after 8-10 steps, he was overpowered by ASI Mohan Lal
(PW-7) and other police officials. The said person threw his bag on
the road. On account of his suspicious behaviour, his identity was
inquired into and he disclosed his identity as the appellant, but he
could not give any satisfactory explanation for throwing his bag on
the road, which created doubt, and he was asked to give search of
his bag.
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6. Thereafter, the appellant himself opened the chain of the
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bag, wherein another bag was found. On opening the said bag, a
black-coloured substance, like a chocolate, was found in a
transparent polythene bag, and some contraband was in the shape
of sticks. On the basis of experience and smell, the police party
identified the substance as charas.
7. Recovered charas was weighed on an electronic
weighing machine and it was found to be two kilograms. The charas
was again wrapped in the same transparent polythene and was put
in the same red bag. The bag was taken into possession and seized
by enclosing it in a cloth parcel, which was sealed with seal
impression ‘H’ four times vide seizure memo Ex.PW-6/B. Form NCB-
I (Ex. PW-1/C) was filled in triplicate and seal impressions were also
taken on the NCB form. Sample seal was taken on a separate piece
of cloth. After use of the seal, the same was handed over to PW-6
Tarsem Chand.
8. PW-7 ASI Mohan Lal (Investigating Officer) prepared the
Rukka (Ex. PW-4/A) at 9:00 a.m. and handed over the same to PW-
5 Baldev Singh, who took the rukka to Police Station Sadar, Kullu.
On reaching Police Station Kullu, SHO Sher Singh (PW-4) registered
the FIR (Ex. PW-4/B) at 10:20 a.m. and made endorsement (Ex.PW-
4/C) thereon regarding registration of FIR No.36 of 2011. Thereafter,
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PW-5 Baldev Singh came back and reached the spot at 12:20 p.m.
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and handed over the case file to PW-7 ASI Mohan Lal.
9. Site Map (Ex. PW-7/A) was prepared by the
Investigating Officer (PW-7) on the spot.
10. During investigation, on finding commission of offence
under Section 20 of the NDPS Act, the appellant was arrested by
PW-7 ASI Mohan Lal at 10:40 a.m. vide arrest memo (Ex. PW-6/D)
and information regarding his arrest was given to his wife on her
mobile phone.
11. At the time of arrest, Jamatalashi memo (Ex. PW-6/D) of
the appellant was prepared in the presence of Constable Sher Singh
and Constable Tarsem Chand (PW-6).
12. After completing the proceedings on the spot, the police
party returned to the Police Station at 3:20 p.m. and the case
property was handed over by PW-7 ASI Mohan Lal to SHO Sher
Singh (PW-4), who resealed the contraband with seal impression ‘S’
and handed over the case property to MHC HC Ram Kishan (PW-
1). Regarding resealing, a GD entry (Ex.PW1/B) was also recorded
by PW-4.
13. PW-2 Constable Vishwa Nath took the case property to
the State FSL through Road Certificate No.59 of 2011 dated
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25.02.2011 (Ex. PW-1/E). After receiving the FSL report (Ex. P/A),
High Court of H.P.
PW-4 Sher Singh prepared the challan and presented the same
before the Court.
14. After finding, prima facie, material against the appellant,
the Trial Court framed charge against him under Section 20(b)(ii)(C)
of the NDPS Act on 17.11.2011.
15. For pleading not guilty, the appellant was subjected to
trial.
16. The prosecution examined seven witnesses to prove its
case, whereas after recording statement under Section 313 Cr.P.C.,
the appellant did not lead any evidence in defence. On completion
of trial, the appellant was convicted by the Trial Court as recorded
supra .
17. Learned counsel for the appellant has contended that
there has been non-compliance with the provisions of Section 50 of
the NDPS Act and, therefore, the appellant is entitled to acquittal as
the mandatory requirements of Section 50 were not complied with. It
has been alleged by prosecution that the alleged contraband was
recovered from the bag carried by the appellant and not from his
person and, therefore, in view of the judgment of the Apex Court in
Ranjan Kumar Chadha versus State of Himachal Pradesh ,
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reported in AIR 2023 SC 5164 , in the facts and circumstances of the
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present case as alleged recovery was effected from a bag carried by
the appellant and not from his person, the provisions of Section 50
of the NDPS Act are not attracted, and therefore, any alleged non-
compliance thereof cannot be said to be fatal to the prosecution
case.
18. Admittedly, during search and seizure, no independent
witness was associated. Undoubtedly, conviction can also be based
on the statements of official witnesses only, in case their deposition
is found reliable, cogent and convincing. However, in the absence of
associating independent witnesses, veracity of statements of official
witnesses is to be evaluated with care and caution, particularly in
cases under the NDPS Act, where punishment is stringent and
question of personal liberty of the accused is involved.
19. As per GD Entry No.6(A) (Ex. PW-1/A), five police
officials, including driver PW-5 LHC Baldev Singh, left the Police
Station. PW-5 was driving the official vehicle. In his deposition before
the Court, he has mentioned, in the opening lines, that he, along with
Home Guard Dalip Singh (not examined) and PW-7 ASI Mohan Lal,
was on patrolling duty at Cheel Mour. He has not endorsed the
presence of PW-6 Tarsem Chand and Constable Sher Singh (not
examined) on the spot, whereas PW-6 Constable Tarsem Chand
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and PW-7 ASI Mohan Lal have stated that all five of them were
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present on the spot.
20. In his cross-examination, PW-5 Baldev Singh has
admitted that there is a big village with a big market, namely Sarsari,
at a distance of one kilometre from Cheel Mour, and there was some
another village on the connected road at a distance of 100 metres
towards Bhunter side and there was also a tea shop on the side of
the road. He has also admitted that for visiting Chharor Nallah to
Sarsari, it will take 2-3 minutes in a vehicle. He has further stated
that no police official was sent to call any independent witness.
21. PW-6 Constable Tarsem Chand has stated that it was
incorrect that there were shops and residential houses at Chharor
Nallah. Contrary to the statement of PW-5, he has stated that it is
incorrect that distance between the Chharor Nallah and Sarsari
village could be covered within 2-3 minutes in a vehicle. However,
he has also stated that no person was deputed to bring independent
witnesses before directing the accused to lift the bag from the road.
22. PW-7 ASI Mohan Lal has also stated that no police
official was deputed to bring independent witnesses. He has stated
that it is incorrect that Sarsari village could be reached within 2-3
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minutes from the spot, but with further explanation that distance
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could be covered within about five minutes.
23. From the aforesaid depositions, it can be inferred that
Sarsari village was at a distance of about 3-5 minutes in a vehicle
from the spot with large population and a big market. It was 7:00 a.m.
when the appellant was allegedly apprehended. The police party had
an official vehicle as well as a driver with them, but no effort was
made to associate any independent witness despite the fact that on
account of throwing the bag on the road while running on seeing the
police party, suspicion had already arisen that the appellant was
carrying contraband in the bag.
24. Joining and associating independent witnesses may not
be possible in all cases, but here is a case where it was neither
midnight nor a secluded place having no habitation nearby. Rather,
it is a case where a person was apprehended at 7:00 a.m. and a big
village was situated at a distance of merely 3-5 minutes by vehicle.
Despite that, no effort was made to associate any independent
witness. This fact, coupled with the contradictions and discrepancies
in the prosecution case, as discussed hereinafter, assumes
significance and becomes fatal to the prosecution story.
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25. The rukka was sent through PW-5 Baldev Singh to the
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Police Station for registration of the FIR. He was the driver of the
official vehicle and the official vehicle was available with the police
party. Despite that, as per the prosecution story, PW-5 Baldev Singh
left the spot in a private bus for registration of the FIR at the Police
Station. When the official vehicle along with its driver was available,
there was no occasion for the police party to send the rukka through
a bus, particularly when it was being sent through the driver of the
official vehicle itself. It is not a case where the official vehicle and its
driver were retained at the spot for any emergent situation and the
rukka was sent through some other police official. Rather, it is a case
where the rukka was sent through the driver of the official vehicle,
but without using the official vehicle itself. This circumstance also
creates doubt about the truthfulness of the prosecution story.
26. The veracity of the prosecution case becomes doubtful
for one more reason. According to PW-5 Baldev Singh, after use, the
seal was handed over to PW-6 Constable Tarsem Chand. However,
Tarsem Chand is completely silent in this regard. Neither has he
stated that the seal was handed over to him by the Investigating
Officer nor has he produced the same. To the contrary, PW-7 ASI
Mohan Lal has stated that after use, the seal was handed over to
Constable Sher Singh (not examined). This contradiction with
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respect to the custody of the seal after its use, for other
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circumstances, assumes significance and creates further doubt
about the prosecution case.
27. Out of the five members of the police party, only four
were cited as witnesses in the list of witnesses presented with the
challan. Home Guard Dalip Singh was not cited as a witness at all.
Constable Sher Singh was not examined and was given up on
17.03.2012 on the ground that his deposition would be repetitive in
nature.
28. It is apt to notice that till 17.03.2012, only four witnesses
had been examined, whereby PW-1 HC Ram Kishan, being the
MHC, proved the deposit of the case property with him and the
sending of the recovered contraband to the State FSL through PW-
2 Constable Vishwanath and received receipt of FSL Report from
State FSL. PW-2 Constable Vishwanath deposed regarding taking
the contraband from the Police Station to the State FSL. PW-3
Harbans Kumar deposed with respect to receipt of the Special
Report by the Additional Superintendent of Police, Kullu. PW-4 SHO
Sher Singh deposed regarding receipt of the rukka, registration of
the FIR in pursuance thereof and receiving the parcel containing
contraband and depositing the same with MHC PW-1.
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29. None of the spot official witnesses, present at the spot,
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had been examined till 17.03.2012. Therefore, it remains
unexplained as to how and for what reason Constable Sher Singh
was given up before examining the other spot witnesses by saying
that his deposition would be repetitive, as he was first person to be
examined regarding spot. Therefore, this circumstance creates
doubt regarding the prosecution story, because before examining
other official witnesses of similar nature, how a witness can be stated
to be repetitive in nature.
30. According to the Investigating Officer (PW-7), the seal
after use was handed over to Sher Singh, whereas according to PW-
5, it was handed over to Tarsem Chand. Tarsem Chand did not
produce the seal. Therefore, Sher Singh was a material witness
whose examination could have provided greater clarity on this
aspect. It appears that either the prosecution story is not in
consonance with the true facts or the case has been concocted in
the Police Station and the actual truth is something else.
31. According to Constable Tarsem Singh/Tarsem Chand
(PW-6), the rukka was taken by PW-5 Baldev Singh to the Police
Station at 9:30 a.m., whereas according to PW-5 Baldev Singh, he
left the spot at 9:00 a.m. Perusal of the rukka depicts that the same
was prepared at 9:00 a.m. According to PW-6 Tarsem Singh, the
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police party returned to the Police Station at 1:30 p.m., whereas
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according to PW-7 ASI Mohan Lal, the police party returned at 3:00
p.m. As per Daily Diary No.26(A) [Ex. PW-1/B], also the police party
came back at 3:20 p.m. Though there is a minor discrepancy in the
timeline of returning to the Police Station as reflected in the
statement of PW-7 and Daily Diary Entry (Ex. PW-1/B), however,
there is a considerable difference between 1:30 p.m., the time stated
by PW-6, and 3:00 p.m. or 3:20 p.m., as stated by PW-7 and
reflected in Ex. PW-1/B respectively.
32. According to PW-5 Baldev Singh and PW-6 Tarsem
Singh, the proceedings were completed by the Investigating Officer
(PW-7) by sitting in the official vehicle. As per the prosecution case,
five members constituted the police party. PW-5 Baldev Singh has
further stated that at the time of conducting proceedings, he was
sitting on the driver’s seat of the vehicle, the ASI Mohan Lal (PW-7)
was sitting on the front seat, whereas the remaining police officials
and the Home Guard were sitting on the rear seat. If all five members
of the police party were sitting in the vehicle, where was the
appellant/accused at that time, particularly when he had allegedly
been apprehended with contraband and had been shown to have
been arrested at 10:45 a.m. and when all official persons were sitting
inside the vehicle, custody of the appellant was handed over to
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whom. This fact also creates doubt regarding the truthfulness of the
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prosecution story.
33. There is also discrepancy regarding the route taken by
the police party to reach the spot. According to PW-5 Baldev Singh,
they went to the spot from the left bank side and 3-4 vehicles met
them on the way from Kullu to Cheel Mour, and they shifted to the
left bank through Pirdi bridge.
34. PW-6 Tarsem Chand, in his cross-examination, has
stated that they went to the spot via Bhunter from the right bank side
and did not check any vehicle passing by on the way upto Bhunter,
with further explanation that no vehicle crossed them at the relevant
time as it was morning time.
35. PW-7 ASI Mohan Lal, Investigating Officer, in his cross-
examination, has stated that it is correct that spot map (Ex. PW-7/A)
does not show any curve between the point where the police party
was standing and the point where the appellant was apprehended.
However, he has stated that there was a curve on the spot. He has
further stated that point ‘C’ shown in the spot map, where the police
party was standing, is towards the Manikaran side, whereas the point
where the accused was noticed is towards the Bhunter side.
Thereafter, he volunteered that the spot map might have been
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wrongly prepared in this regard. Therefore, he has admitted that the
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directions have been wrongly shown in the spot map and further that
he did not disclose this fact to anybody at the time of preparation of
the challan. This discrepancy unambiguously depicts that the spot
map was not prepared on the spot, meaning thereby that the police
party was not on the spot as claimed at the relevant point of time
and, therefore, the story of apprehending the appellant as stated in
the challan becomes doubtful.
36. It is also apt to notice that PW-1 HC Ram Kishan (MHC)
handed over the parcel of contraband to PW-2 Constable Vishwa
Nath on 25.02.2011 vide Road Certificate No.59 of 2011 (Ex. PW-
1/E). PW-2 Vishwa Nath deposed that he handed over the parcel at
the State FSL on 26.02.2011. However, in his cross-examination, he
was confronted with the receipt endorsed by the State FSL on Ex.
PW-1/F, wherein the concerned official has mentioned the date of
receipt of the parcel as 26.03.2011. This discrepancy also creates
doubt regarding the linking evidence connecting the contraband with
the FSL report and the appellant, particularly when the seal used at
the time of search and seizure was produced and the seal used for
resealing was not handed over to any third person and the
contraband remained somewhere, but nowhere either in the Police
Station or at the State FSL, for complete one month.
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37. The aforesaid contradictions and discrepancies, in
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isolation, may not be fatal to the prosecution case. However, the
cumulative effect thereof definitely raises suspicion regarding the
veracity of the prosecution story. In view of these discrepancies and
contradictions, the evidence led by the prosecution cannot be said
to be cogent, reliable and convincing so as to uphold the conviction
of the appellant and the sentence imposed upon him pursuant
thereto.
38. It is settled law that in case of slightest doubt, benefit is
to be extended to the accused and accordingly by extending benefit
of doubt, appellant-accused deserves to be acquitted of the Charge
framed against him, by setting aside the impugned judgment and
order passed by the Trial Court.
39. In view of above, we are of the considered opinion that
prosecution has miserably failed to prove its case beyond
reasonable doubt, whereas the Trial Court has failed to appreciate
the material on record in right perspective and accordingly,
impugned judgment of conviction and order awarding sentence are
set aside and appellant is acquitted of charge framed under NDPS
Act and bail bonds furnished by him also stand discharged.
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40. The fine amount, if deposited, be refunded after the
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expiry of the period of limitation for filing the appeal, in case no
appeal is preferred, and in case of appeal, the same be dealt with as
per the orders of the Hon’ble Supreme Court.
41. The case property will be confiscated to the State strictly
in accordance with law after expiry of period of limitation of filing
further proceedings before competent Court of law.
42. A copy of this judgment along with the record of the
learned Trial Court be sent back forthwith. Pending applications, if
any, also stand disposed of.
(Vivek Singh Thakur)
Judge


(Ranjan Sharma)
Judge
th
14 July, 2026
(Pardeep)
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