Kedar Singh vs State of HP
- Court
- High Court of Himachal Pradesh
2026:HHC:45837
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. : 379 of 2023
Reserved on : 25.09.2026
Decided on : 16.10.2026
Uploaded on : 16.10.2026
Kedar Singh ...Appellant.
Versus
State of Himachal Pradesh …Respondent.
Coram
Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Hon’ble Mr. Justice Bhupesh Sharma, Judge.
Whether approved for reporting? Yes
For the Appellant. Mr. Rishabh Sharma, Advocate, vice Mr.
Dewa Nand Sharma, Advocate.
For the Respondent: Mr. Yashwardhan Singh Chauhan, Senior
Additional Advocate General.
_______________________________________________________
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
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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.
2. 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
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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’ .
3. 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
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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
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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,
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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
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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
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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’.
4. 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.
5. 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
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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.
6. 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
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(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).
7. 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.
8. 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.
9. 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
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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.
10. 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
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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
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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.”
12. We have heard learned counsel for the parties and
carefully gone through the records.
13. 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
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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.
14. 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
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the provisions under Sections 42 and 50 of the Narcotic Drugs
and Psychotropic Substances Act, 1985.
15. 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.
16. 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,
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the Investigating officer was not obligated to comply with the
mandatory provisions of Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
17. 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.
18. 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.
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19. 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
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Chandubha Jadeja versus State of Gujarat, (2011) 1 SCC
609.
20. 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.
21. 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.
22. 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.
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23. 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.
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24. 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.
25. 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.
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26. Even otherwise, the law is fairly settled that the
prosecution case cannot be disbelieved due to non-association of
independent witnesses.
27. 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.
28. This position was reiterated in Kallu Khan v. State
of Rajasthan, (2021) 19 SCC 197.
29. A similar view was taken in Kehar Singh v. State of
H.P., 2024 SCC OnLine HP 2825.
30. Thus, in view of the binding precedents of this Court
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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.
31. 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.
32. 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
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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
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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.
33. 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
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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.
34. 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.
35. 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.
36. 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
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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.
37. 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.
38. The minor variations and contradictions in the
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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.
39. 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
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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.
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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.
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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
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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) ”
40. 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
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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
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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
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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
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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] .”
41. 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.”
42. 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
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heart of the matter and shake the basic
version of the prosecution witness.”
41. 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.
42. 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.
43. 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)
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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.
44. 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
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Substances Act, 1985 Ex.PW13/D fulfills the necessary
requirements and the safeguards to be observed by the
Magistrate under the said provisions.
45. 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.
46. 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
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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).
47. 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.
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48. 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.
49. 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.
50. 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.
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51. 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.
52. 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.
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53. In view of the above, the present appeal fails and it is
dismissed.
54. A copy of this judgment along with the record of the
learned Trial Court be sent back forthwith.
(Vivek Singh Thakur)
Judge
(Bhupesh Sharma)
Judge
th
16 October, 2026
(Kiran)
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