STATE OF HP vs SHANKAR GIRI

2026:HHC:47874
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. : 539 of 2015
Reserved on : 15.10.2026
Decided on : 31.10.2026
Uploaded on : 31.10.2026
State of Himachal Pradesh ...Appellant.
Versus
Shankar Giri …Respondent.

Coram
Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Hon’ble Mr. Justice Bhupesh Sharma, Judge.
Whether approved for reporting?
For the Appellant: Mr. J.S. Guleria, Deputy Advocate
General.
For the Respondent: Mr. Tarun Brakta, Advocate, Amicus
Curiae.
______________________________________________________
Bhupesh Sharma, Judge
The State of Himachal Pradesh is in appeal before this
Court against the judgment of acquittal dated 01.06.2015 passed by
learned Special Judge, Bilaspur, H.P., in Session Trial No.10/3 of
2010, titled as ‘ State of Himachal Pradesh Vs. Shankar Giri ,
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whereby the respondent (hereinafter referred to as 'accused') has
been acquitted for the commission of offences punishable under
Section 20 of Narcotic Drugs and Psychotropic Substances Act,
1985.
2. The accused was sent to face trial for the
commission of an offence punishable under Section 20 of
Narcotic Drugs and Psychotropic Substances Act, 1985, by SHO
Police Station Barmana, District Bilaspur, H.P., in Case FIR
Number 90/2010 dated 23.04.2010 registered under Section 20
of Narcotic Drugs and Psychotropic Substances Act, 1985. The
accused was prosecuted for the said offence, and was
subsequently acquitted by the learned Trial Court vide impugned
judgment dated 01.06.2015 passed in Session Trial No.10/3 of
2010, titled as ‘ State of Himachal Pradesh Vs. Shankar Giri’.
3. Briefly, the facts relevant for the disposal of this
appeal, in short, are as under:
3(a) On 22.04.2010 at 11:00 PM, a Police party headed
by Dy.SP(P) Kulbhushan Verma officiating SHO Police Station
Barmana left for routine night patrolling towards Ghagas Bridge
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vide GD Entry No.55(A) dated 22.04.2010. He was accompanied
by other police officials of Police Station Barmana namely SI
Mathru Ram, PSI Sanjeev Kumar, ASI Amar Nath, HC Shiv
Kumar No.79, HHC Jai Ram No.263, Constable Ravi Dutt
No.109 and Constable Ramjan Mohd. No.467. The Police party
was travelling in official vehicle No.HP-69A-0129 and motorcycle
No.HP-69-1320. The Police party during the course of patrolling
reached Ghagas bridge on NH 21 at 11:15 PM where they
stopped Haryana Roadways bus No.HR-55-3509 enroute Manali
to Delhi for routine checking. The police officials during the
course of checking found the accused sitting on seat No.1, which
was behind the driver’s seat. The accused on seeing the police
officials got frightened and on suspicion his personal search was
carried out in the presence of driver Rajvir Singh and conductor
Praveen Kumar and other police officials during which he was
found wearing waist belt with zip pocket containing polythene
bag, containing 160 grams of ‘ Charas’( Cannabis). The accused
could not account for the said contraband, which was receovered
from his exclusive and conscious possession .
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3(b). Pursuant to the recovery of 160 grams of ‘ Charas’
(Cannabis) from exclusive and conscious possession of the
accused, the Investigating Officer Kulbhushan Verma proceeded
with conducting codal seizure formalities. The contraband was
put in the polythene and was sealed in a cloth parcel by affixing
12 seals of impression ‘M’ in the presence of the independent
witnesses Rajvir Singh (Driver) and Praveen Kumar (Conductor).
The seal ’M’ after its use was handed over to the independent
witness Praveen Kumar. The Investigating Officer thereafter filled
the relevant columns of NCB-I form in triplicate and thereafter the
sealed parcel was taken into possession vide witnesses i.e.
Rajvir Singh and Praveen Kumar. The signatures of the accused
in the presence of witnesses were obtained on the said memo.
The copy of the same was handed over to the accused free of
cost. Thereafter, the accused was arrested at 2:15 AM. The
Investigating Officer Kulbhushan Verma scribed rukka and sent
the same through Constable Ravi Dutt No.109 at Police Station
Barmana for registration of FIR against the accused. In
pursuance thereof, case FIR No.90/2010 dated 23.04.2010 under
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Section 20 of Narcotic Drugs and Psychotropic Substances Act,
1985, was registered at Police Station Barmana, District Bilaspur,
H.P. The Investigating Officer thereafter prepared spot map and
recorded the statements of witnesses under Section 161 Cr.PC
and on returning to Police Station Barmana handed over the
case property with MHC Police Station, Barmana for safe
custody.
3(c). On 23.04.2010, the Investigating Officer Kulbhushan,
Dy.SP(P) prepared Special Report under Section 57 of the
Narcotic Drugs and Psychotropic Substances Act, 1985, and sent
the same to the Superintendent of Police, Bilaspur through ASI
Amar Nath. Pursuant to the receipt of the Special Report under
Section 57 of the Narcotic Drugs and Psychotropic Substances
Act, 1985, necessary entries regarding the said receipt were
made at Sr. No.1000/45 of the Special Reports Register.
3(d). On 24.04.2010, the case property was sent to State
FSL, Junga for chemical examination through HHC Krishan
Dayal vide RC No.50/10 and State Forensic Science Laboratory
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Report No.789 NDPS Division 308/2010, dated 06.05.2010, and
was found extract of Cannabis and sample of ‘Charas’.
3(e) Pursuant to the completion of investigation, the
accused was found to have committed the offence punishable
under Section 20 of Narcotic Drugs and Psychotropic
Substances Act, 1985 and final report under Section 173(2)
Cr.PC was prepared against him and a case was filed before
learned Special Judge Bilaspur, H.P. The accused was
prosecuted for the commission of offence under Section 20 of
Narcotic Drugs and Psychotropic Substances Act, 1985 in
Session Trial No.10/3 of 2010, titled as ‘ State of Himachal
Pradesh Vs. Shankar Giri’.
3 (f). The learned trial Court after considering the oral and
documentary evidence led by the prosecution acquitted the
accused for the commission of offence punishable under Section
20 of Narcotic Drugs and Psychotropic Substances Act, 1985
vide impugned judgment of acquittal dated 01.06.2015 passed in
Session Trial No.10/3 of 2010, titled as ‘ State of Himachal
Pradesh Vs. Shankar Giri’.
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4. Feeling aggrieved and dissatisfied with the judgment
of acquittal dated 01.06.2015 , passed in Session Trial No.10/3 of
2010, titled as ‘State of Himachal Pradesh Vs. Shankar Giri’, the
State of Himachal Pradesh is in appeal before this Court on
various grounds.
5. GROUNDS OF APPEAL:
(i) “That the impugned judgment passed by the
Learned Trial Court is wrong on facts as well as
on law, hence, liable to be set-aside.
(ii) That the impugned judgment is based on
hypothetical reasoning surmises and
conjectures hence liable to be set-aside.
(iii) That the Learned Trial Court has appreciated
the evidence on record in a slip-shod and
perfunctory manner and has acquitted the
accused person on the flimsy grounds.
(iv) That the Learned Trial Court has not only failed
to view the prosecution evidence in its proper
perspective but at the same time has set
unrealistic standards to evaluate the direct and
cogent prosecution evidence. The reasoning of
the Trial Court is manifestly unreasonable and
unsustainable as there was warrant at all for
the Trial Court to discard the well reasoned
and consistent testimony of prosecution
witnesses on material point.
(v) That the Learned Trial Court has discarded the
testimony of prosecution witnesses for
untenable reasons in the absence of any proof
of enmity no reasons what so ever have been
assigned for discarding the version of official
witnesses. The acquittal in this case is in
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disregard of material evidence on record and
as such, the same is unreasonable, therefore,
the impugned judgment is liable to be set-
aside.
(vi) That the Ld. Trial Court has erred and erred
gravely while putting no reliance on the
testimonies of PW-2 DY.S.P. Kulbhushan,
PW-6 ASI Shiv Kumar, PW-7 HC Ravi Dutt,
PW-8 SI Mathru Ram and PW-11 ASI Amar
Nath merely on the ground that the
independent witnesses has not supported the
prosecution and they were declared hostile.
(vii) That the finding of the Ld. Trial Court that
there are two stories one is supported by the
police witness and other by three independent
witnesses are wrong and against law.
(viii) That no other appeal or revision arising out of
the impugned judgment has been filed either
in this Hon'ble Court or in the Hon'ble
Supreme Court of India.
(ix) That this appeal is being filed within the
period of limitation.”
6. We have heard learned counsel for the parties and
carefully gone through the material on record and the findings
recorded by the learned Trial Court while passing the impugned
judgment dated 01.06.2015.
7. Sh. J.S. Guleria, learned Deputy Advocate General
has strenuously argued that the findings rendered by the learned
Trial Court are unsustainable since the oral and documentary
evidence adduced by the prosecution during the course of trial
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was not well appreciated. Although, the independent witnesses of
search, recovery and seizure namely Rajvir Singh (PW-1) and
Praveen Kumar (PW-3) have denied the prosecution case on
material aspects, nevertheless the official witnesses namely
Kulbhushan Verma (PW-2), ASI Shiv Kumar (PW-6), HC Ravi
Dutt No.100 (PW-7), SI Mathru Ram (PW-8) and ASI Amar Nath
(PW-11) have supported the prosecution case against the
accused and the recovery of 160 grams of ‘Charas’(Cannabis)
stands proved on the basis of the testimony of the official
witnesses. There are no material contradictions and omissions in
the evidence of the official witnesses, therefore, the findings of
acquittal recorded by the learned trial Court are liable to be set
aside.
8. Per contra, Sh. Tarun Brakta, learned Amicus Curiae
for the respondent/accused has vehemently defended the
judgment of acquittal passed by the learned Trial Court after
considering the oral and documentary evidence adduced by the
prosecution, which does not inspire confidence. He has further
argued that the Investigating Officer during the course of
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investigation failed to adhere to the mandatory provisions under
Sections 50, 52A and 55 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. The entire trial stands vitiated, therefore,
the judgment of acquittal passed by learned trial Court warrants
no interference.
9. Perusal of the record evidently shows that the
learned Trial Court, on considering and evaluating the material
and evidence, found material discrepancies in the prosecution
evidence and accordingly acquitted the accused.
10. Since the present appeal has been filed against the
judgment of acquittal, therefore, the scope of powers of the
Appellate Court in the case of an appeal against acquittal needs
to be considered before embarking upon the factual matrix.
11. The scope of the powers of the Appellate Court in
case of an appeal against acquittal has been elaborately dealt
with by the Hon’ble Apex Court in Muralidhar alias Gidda &
another vs. State of Karnatka reported in (2014) 5 SCC 730 .
and Rajesh Prasad vs. State of Bihar & another, (2022) 3 SCC
471 .
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12. Similarly in H.D. Sundara & others vs. State of
Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court has
observed that the appellate court cannot overturn acquittal only
on the ground that after reappreciating evidence, it is of the view
that the guilt of the accused was established beyond a
reasonable doubt.
13. It is more than settled that the powers of Appellate
Court while hearing the appeals against the acquittal are not
unbridled. There is a clear caveat that in case the view arrived at
by the trial Court is a possible one borne from the material on
record, the same cannot be viewed differently, even if, there is a
possibility of any other view. Reference in this regard can be
made to the judgment passed by Hon'ble Supreme Court in
Jafarudheen and others vs. State of Kerala (2022) 8 SCC 440 ,
wherein it has been held as under:
“Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by
invoking Section 378 of the Cr.PC, the Appellate
Court has to consider whether the Trial Court's view
can be termed as a possible one, particularly when
evidence on record has been analyzed. The reason is
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that an order of acquittal adds up to the presumption
of innocence in favour of the accused. Thus, the
Appellate Court has to be relatively slow in reversing
the order of the Trial Court rendering acquittal.
Therefore, the presumption in favour of the accused
does not get weakened but only strengthened. Such
a double presumption that enures in favour of the
accused has to be disturbed only by thorough
scrutiny on the accepted legal parameters.”
14. The present appeal has been filed against a
judgment of acquittal. It was laid down by the Hon’ble Supreme
Court in Surendra Singh v. State of Uttarakhand, 2025 SCC
OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere
with a judgment of acquittal if it is patently perverse, is based on
misreading/omission to consider the material evidence and
reached at a conclusion which no reasonable person could have
reached. It was observed at page 440:
“12. It could thus be seen that it is a settled
legal position that the interference with the
finding of acquittal recorded by the learned trial
judge would be warranted by the High Court
only if the judgment of acquittal suffers from
patent perversity; that the same is based on a
misreading/omission to consider material
evidence on record; and that no two
reasonable views are possible and only the
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view consistent with the guilt of the accused is
possible from the evidence available on
record .”
15. Thus, the law on the issue can be summarized to the
effect that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the Appellate Court can interfere with the order of
acquittal. Further, if two views were possible on the basis of the
evidence on record, the Appellant Court should not disturb the
findings of acquittal recorded by the Trial Court, merely, because
the Appellate Court could have arrived at a different conclusion
than that of the Trial Court.
16. The burden of proof in a criminal trial never shifts and
it is always the burden of the prosecution to prove its case
beyond reasonable doubt on the basis of acceptable evidence. In
fact, it is a settled principle of criminal jurisprudence that more
serious the offence, the stricter the degree of proof required,
since a higher degree of assurance is required to convict the
accused.
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17. The careful perusal of the record shows that it is a
case of a chance recovery during the routine checking of
Haryana Roadways bus No.HR-55-3509 enroute Manali to Delhi
on the night intervening 22.04.2010 and 23.04.2010 at 11:50 PM
near Ghagas Bridge on National Highway 21, within the
jurisdiction of Police Station Barmana, District Bilaspur, H.P. The
accused was travelling in the said bus and was occupying seat
No.1 behind the driver seat. His personal search was carried out
on the basis of suspicion and he was found wearing a waist belt
with a pocket containing 160 grams of ‘ Charas’ (Cannabis).
18. Since, the Police party intercepted and checked bus
No.HR-55-3509 without any prior information, therefore, the
provisions under Section 42(2) Narcotic Drugs and Psychotropic
Substances Act, 1985 are not attracted. Similarly, the provision of
Section 50 of the Act are also not attracted since the Police did
not raise any suspicion against the accused for being in
possession of narcotic drugs prior to conducting his personal
search, in view of the law laid down by the Hon’ble Supreme
Court in State of H.P. Vs. Sunil Kumar (2014) 4 SCC 780.
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19. Now adverting to the oral and documentary evidence
adduced by the prosecution.
20. The prosecution in order to establish the allegations
and accusations against the accused examined 13 witnesses.
The independent witnesses of search, recovery and seizure are
Rajvir Singh (Driver of the bus) examined as PW-1 and Praveen
Kumar (Conductor of the bus) examined as PW-3. Apart from
this, the prosecution has also examined Ram Singh, owner of
sweet shop near the place where the bus was intercepted as the
weighing scale was procured from his shop, as PW-5. The other
witnesses examined by the prosecution namely Kulbhushan
Verma examined as PW-2, ASI Shiv Kumar examined as PW-6,
HC Ravi Dutt No.100 examined as PW-7, SI Mathru Ram
examined as PW-8 and ASI Amar Nath examined as PW-11 are
the official witnesses of the recovery. The other witnesses
examined by the prosecution are formal in nature, who were
associated at various stages of investigation and necessarily
constitute the link evidence.
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21. Apart from this, the prosecution also heavily relied
upon the documentary evidence collected during the course of
investigation and proved during the course of trial i.e. Contraband
identification memo (Ex.PW1/A), Recovery & Seizure memo
(Ex.PW1/B), Recovery & Seizure memo of bus tickets (Ex.PW1/
C), Personal search memo (Ex.PW1/D), Sample seal ‘M’
(Ex.PW1/E), GD Entry (Ex.PW2/B), NCB-I form in triplicate
(Ex.PW2/C), Rukka (Ex.PW2/D), FIR (EX.PW2/E), Special
Report (Ex.PW2/L), Special Reports Register (Ex.PW9/A), RC
(EX.PW9/B) and SFSL report (Ex.PW10/A).
22. The independent witnesses of search, recovery and
seizure namely Rajvir Singh (Driver of the bus) examined as PW-
1 and Praveen Kumar (Conductor of the bus) examined as PW-3
have failed to support the prosecution version qua the recovery
of 160 grams of ‘Charas’( Cannabis) from exclusive and
conscious possession of the accused during his personal search
on 22.04.2010 at 11:50 PM near Ghagas bridge on National
Highway 21, District Bilaspur, H.P. There is a complete denial on
all material aspects for the prosecution case by these two
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witnesses. Although, they have admitted signing the documents
i.e. contraband identification memo Ex.PW1/A, recovery and
seizure memo Ex.PW1/B and recovery and seizure memo of bus
tickets Ex.PW1/C, however, as per their version they were made
to sign these documents by the Police and have explicitly denied
the contents of these documents thereof.
23. The prosecution also examined Ram Singh being the
owner of the nearby shop from where the weighing scale was
procured by the Police for weighing the contraband. As per the
prosecution case, the contraband was weighed in his presence.
However, the aforesaid witness has categorically denied for
providing the weighing scale to the police officials for the said
purpose. As per his version, the police officials came to his shop
and asked him to weigh the contraband. Therefore, he has also
denied his presence on the spot when the proceedings were
carried out by the police.
24. After going through the statement of Kulbhushan
Verma (PW-2) Dy.SP(P)/SHO/IO, it is evident that the re-sealing
of the case property was not conducted in compliance to Section
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55 of the Narcotic Drugs and Psychotropic Substances Act,
1985. This fact is also evident after going through the NCB-I form
in triplicate(Ex.PW2/C). No reasons have been put forth as to
why the said provisions were not complied. Therefore, the
prosecution case is bad for non-compliance of Section 55 of
Narcotic Drugs and Psychotropic Substances Act, 1985.
25. It is evident that the Investigating Officer also did not
resort to the provisions under Section 52A(2) of the Narcotic
Drugs and Psychotropic Substances Act, 1985. The non-
compliance of the said provision is also not explained on record.
26. Although, the official witnesses have come forward
supporting the prosecution case, however, their version cannot
be relied upon due to non-supporting of the prosecution case by
the independent witnesses. Furthermore, the investigation was
not carried out by the Investigating Officer in compliance to the
mandatory and directory provisions under Narcotic Drugs and
Psychotropic Substances Act, 1985. Therefore, the case of the
prosecution becomes vulnerable and cannot be relied upon.
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27. The learned Trial Court after having considered the
aforesaid aspects rightly acquitted the accused since the
prosecution case suffers from material infirmities, contradictions
and omissions, which are insufficient for securing conviction of
the accused.
28. In view of the above, the present appeal fails and it is
dismissed.
29. In view of the provisions of Section 437-A of the Code
of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
Sanhita, 2023), the respondent/accused is directed to furnish bail
bonds in the sum of 25,000/- with one surety in the like amount

to the satisfaction of learned Registrar (Judicial) within four
weeks, which shall be effective for six months with stipulation that
in the event of Special Leave Petition being filed against this
judgment, or on grant of the leave, the respondent on receipt of
notice(s) thereof, shall appear before the Hon’ble Supreme
Court.
30. A copy of this judgment along with the record of the
learned Trial Court be sent back forthwith.
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31. The appeal is, accordingly, disposed of, so also the
pending miscellaneous application(s), if any.
(Vivek Singh Thakur)
Judge
(Bhupesh Sharma)
Judge
st
31 October , 2026
(Kiran)
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