Sapna vs State of HP
- Court
- High Court of Himachal Pradesh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
High Court of H.P.
Cr. Appeal No: 154 of 2024
Reserved on : 06.05.2026
Decided on : 14.07.2026
Uploaded on : 14.07.2026
Sapna ..…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 : Ms. Kanta Thakur, Advocate.
For the respondent : Mr. Gautam Sood, Deputy
Advocate General.
Vivek Singh Thakur, Judge
This appeal has been preferred by the
appellant/convict against judgment dated 07.08.2023,
passed by Special Judge-1, Kullu, District Kullu, H.P.,
1
Whether reporters of the local papers may be allowed to see the judgment?
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in case (Regd. No.) No. 144(106)/2019, titled as ‘ State
of Himachal Pradesh Vs. Sapna’ , arising from FIR
No. 152 of 2019, dated 26.07.2019, registered in Police
Station Bhuntar, District Kullu, H.P., under Section 20
of the Narcotics Drugs and Psychotropic Substances
Act, 1985 (for short ‘NDPS’ Act), whereby appellant has
been convicted under Section 20 of NDPS Act for having
been found in possession of 5 Kgms of Charas and has
been sentenced vide even dated order to undergo
rigorous imprisonment for a term of 10 years with fine
of Rs.1 lac and in default of payment of fine to further
undergo simple imprisonment for a period of six
months.
2. Prosecution case is that on 26.07.2019, ASI
Bhup Singh (PW-9), Investigating Officer, Special
Investigation Unit (SIU) Kullu alongwith Constable
Netar Singh (PW-2) and HHC Sanjay Kumar (neither
cited as a witness nor examined) in a private vehicle
HP34D-2092, present at Seund on the road Bhuntar to
Manikaran in Nakkabandi, were checking the vehicles
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in routine since 6:00 AM. At about 7:05 AM, a HRTC
Bus No. HP18B-6339 of Nahan Depot, enroute
Haridwar to Manikaran, came from Bhuntar side going
towards Manikaran. On signal of ASI Bhup Singh, the
driver of the bus stopped the bus in front of a shop
adjacent to Aman Fast Food.
3. As per prosecution story, ASI Bhup Singh
and Constable Netar Singh entered in the bus from
front door, whereas HHC Sanjay entered in the bus
from rear door wherein only two female Nepali origin
passengers were found sitting on seat Nos. 5 and 6.
The passengers, on noticing the police, became
perplexed, whereupon ASI Bhup Singh called driver
and conductor near seat Nos. 5 and 6. On inquiry,
driver disclosed his name as Tara Chand with his
address, whereas conductor disclosed his name as
Rajat Kumar with his address. In presence of driver and
conductor of the bus and Constable Netar Singh, ASI
Bhup Singh inquired the name and address of
passengers sitting on seat No.6, who disclosed her
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name as Sapna alongwith her address of Nepal and
similarly passenger sitting on seat No. 5 disclosed her
name as Rani with address of Nepal. It is further case
of the prosecution that 4.850 Kgs of Charas was
recovered from Rani, whereupon by completing
proceedings in accordance with law, Rukka was sent to
Police Station Bhuntar through PW2 Constable Netar
Singh and contraband recovered from Rani was kept in
his possession by ASI Bhup Singh (PW-9), and they
alongwith Smt. Bimla Bhutti, District Panchayat Officer
(PW-3), started waiting for return of PW2 Constable
Netar Singh keeping Rani in custody of Lady Constable
Lata.
4. It is further case of the prosecution that,
under the instructions of PW9 ASI Bhup Singh, PW11
LHHC Reema Devi detained Sapna, the passenger
seated on Seat No. 6. Upon the arrival of PW2 Netar
Singh at about 2:20 PM., he was associated with the
investigation. Thereafter, in presence of the witnesses,
personal search of Sapna was also conducted after
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obtaining her consent under Section 50 of NDPS Act, in
response whereof Sapna had expressed her desire for
giving personal search before a Gazetted Officer
available nearby. The consent memo PW2/A was
prepared by PW9 ASI Bhoop Singh and thereafter
PW11 LHHC Reema Devi, in presence of PW3 Smt.
Bimla Bhutti, District Panchayat Officer (Gazetted
Officer), searched the person of Sapna and during
that period, PW9 ASI Bhup Singh kept on waiting
outside the bus. After some time, on completing search,
PW11 LHHC Reema Devi informed PW9 ASI Bhup
Singh about completion of search in presence of Smt.
Bimla Bhutti with further information that Sapna had
tied a black cloth as a belt around her waist, which was
filled with some substance, which had been taken out
and kept on the seat.
5. Thereafter, PW9 ASI Bhup Singh alongwith
witnesses again entered in the bus and checked the belt
shaped cloth and found therein 10 packets wrapped
with Cello Tape. On removing Cello Tape and taking out
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transparent packets, the substance was checked,
which, on smelling and on the basis of experience, was
identified as Charas . On weighing, it was found to be
5.025 Kgs. The contraband was taken in possession and
sealed in parcel of cloth vide Memo Ext. PW1/A by
sealing six time with seal impression ‘C’. NCB Form
Ext. P-15/PW8 was filled in triplicate and a sample seal
Ext. P-2/PW8 was also taken on a piece of cloth and
three sample seals were also taken on NCB Form and
after use, seal was handed over to conductor PW1 Rajat
Kumar vide a separate memo.
6. Hand bag of Sapna was also checked,
wherefrom Ext.P-1/PW9 ticket No. MF0687676 of seat
Nos. 5 and 6 from Haridwar to Bhuntar was recovered
and another ticket issued by conductor from Bhuntar to
Jai Nalla was also found therein. These tickets were
taken in possession. Sample parcels as well as memo
were signed by Sapna as well as witnesses.
7. For finding commission of offence under
Section 20 of NDPS Act, a Rukka (Exhibit P-3/PW9) was
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prepared and sent through PW2 Netar Singh for
registration of FIR in Police Station Bhuntar. On the
basis of which, FIR No. 152 of 2019, dated 26.07.2019
(Exhibit P-27/PW8), was registered at Police Station
Bhuntar at 6:46 PM.
8. PW9 ASI Bhup Singh later on handed over
investigation to Sunil Kumar (PW-12), In-charge SIU,
Kullu, for further investigation, who after that handed
over case property to HC Chander Shekhar (PW-8), who
recorded entry alongwith documents in this regard in
register No. 19, at serial No. 237. Separate Memo was
prepared to this effect. Statement of witnesses were
recorded and on finding sufficient grounds for arrest of
Sapna, she was arrested at 7:50 PM at Seund and
information in this regard was given to her relative
Veer Pratap on his mobile phone. Sapna was produced
in the Court on 27.07.2019 and thereafter, she
remained in police as well as in judicial custody.
9. On 27.07.2019, Special Report
(Ext.P-1/PW4) was produced before the Deputy
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Superintendent of Police, Kullu, at about 3:25 PM.
Proceedings under Section 52-A of the NDPS Act, were
completed before PW-13, Arvind Kumar, Chief Judicial
Magistrate.
10. HC Chander Shekhar is (PW-8), who has
prepared the site plan. He has taken the case property
from the Malkhana and carried the same to the Court
of PW13 Arvind Kumar, Chief Judicial Magistrate,
Lahaul and Spiti at Kullu, for carrying out the
proceedings under Section 52-A of NDPS Act, for
certifying the inventory and passing appropriate
orders. After drawing two samples of 25 grams each
separately and remaining bulk was sealed with three
seals of “CJM, L & S”. Sample Seal was taken on a
piece of cloth by PW13 Arvind Kumar. Photographs
Ext. P-3/PW-8 to Ext.P12/PW8, of proceedings were
also taken. Thereafter order Ext. P13/PW8 was passed
and certificate Ext. P14/PW8 was issued by PW13
Arvind Kumar.
11 . On 28.07.2019, sample of contraband
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alongwith documents through road certificate No. 209
of 2019 (Ext. P-17/PW8) was sent to SFSL Junga,
through HHC Bahadur Singh (PW-6), who after
depositing the case property at SFSL Junga, handed
over the receipt to the HC Chander Shekhar (PW-8).
SFSL Report (Ext.P-13/PW12) alongwith sample of
contraband was brought back from SFSL Junga by HC
Shyam Singh (PW-5).
12. After completion of investigation Inspector
Vikas Kumar (PW-10), prepared the challan and
presented the same in the Court.
13. Finding a prima facie case against appellant
Sapna, the Trial Court framed charge under Section 20
of NDPS Act against her on 21.12.2019.
14. On pleading not guilty, appellant Sapna was
subjected to trial.
15. To substantiate its case, prosecution has
examined thirteen witnesses, whereas, after recording
the statement under Section 313 of Cr.P.C., appellant
Sapna has not led any evidence in defence.
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16. On conclusion of trial, the Trial Court after
appreciation of the evidence on record, convicted Sapna
as referred (supra).
17. We have heard learned counsel for the
appellant as well as learned Deputy Advocate General
for the respondent-State and have also gone through
the record of the case carefully.
18. Learned counsel for the appellant, pointing
out various contradictions, discrepancies and other
flaws in the evidence, has submitted that prosecution
has failed to prove the case beyond reasonable doubts
against appellant Sapna, however, ignoring the same,
the Trial Court has committed an error in convicting the
appellant, whereas learned Deputy Advocate General,
for the findings, in impugned judgment returned by the
Trial Court, has supported the conviction and sentence
awarded to the appellant.
19. There is discrepancy with regard to the arrival
of bus on the spot. According to PW-2 Constable Netar
Singh, the police party was present at 6:00 AM, at
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Seund and bus came at 7:05 AM. According to PW-1,
Rajat Kumar also, who is conductor of the bus, the bus
arrived on the spot at 7:15 AM. However, ASI Bhup
Singh (PW-9), in his examination-in-chief has stated
that bus arrived on the spot at 12:05 AM, which has not
been disputed nor clarified at any stage.
20. According to learned Deputy Advocate
General, this discrepancy has arisen on account of a
typographical mistake, whereas according to learned
counsel for the appellant there were ample opportunities
to correct the same and despite that it was a glaring
mistake, it was not corrected at the time of signing the
statement and otherwise even thereafter, and now fact
remains that there are two police official witnesses and
they are stating time of considerable different arrival of
the bus, as gap between timing is about seven hours.
21. As per prosecution case, on apprising her
right under Section 50 of NDPS Act, appellant had
expressed her desire to be searched before nearby
Gazetted Officer, and thereupon Smt. Bimla Bhutti,
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District Panchayat Officer (PW-3), was called on the spot
and LHHC Rema Devi (PW-11), was called from the
Police Station Bhuntar for conducting search. According
to PW-11 Reema Devi, she alongwith LC Lata, HC Tarun
Kumar reached on the spot in an official vehicle at
Seund, at about 8:00 AM. As per her departure report,
recorded in daily dairy (Exhibit P-18/PW8) on receiving
information from ASI Bhup Singh in the Police Station,
this witness left the Police Station at about 7:35 AM,
meaning thereby at 7:35 AM or before that consent for
search was obtained from Sapna. However, according to
PW-3, Smt. Bimla Bhutti, District Panchayat Officer, she
received information between 9:45 to 10:00 AM and she
reached on the spot at 10:30 AM. According to PW11
LHHC Reema Devi, consent of personal search under
Section 50 was obtained by the Investigating Officer
after her arrival, vide consent memo Ext. PW2/A,
whereupon ASI Bhup Singh telephonically requested
Deputy Superintendent of Police to sent a lady
Gazetted Officer on spot and in sequel thereto PW3
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Smt. Bimla Bhutti, District Panchayat Officer reached
on the spot at 10:30 AM and she was apprised about
the situation and first of all she (Reema Devi) and ASI
gave their personal search to accused Sapna and
thereafter personal search of Sapna was conducted in
presence of District Panchayat Officer, at that time other
officials are outside the bus. It indicates that personal
search of Sapna was conducted after 10:30 AM,
immediately after arrival of Smt. Bimla Bhutti, District
Panchayat Officer, on the spot.
22. According to PW-3, Smt. Bimla Bhutti also,
after her arrival at 10:30 AM, personal search of Sapna
was conducted by PW11 LHHC Reema Devi and
contraband was recovered from the person of Sapna. In
cross-examination, PW-3 has stated that she had gone
to the spot in police vehicle with its driver and reached
the spot at around 10:00 AM. During her return
journey, she had used her own official vehicle. It
remained unexplained that when she and persons came
on spot in the police vehicle, and she retuned in her
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own vehicle which never arrived on spot. There is silence
about arrival of her official vehicle on the spot as she
had come on the spot in the police vehicle with its driver.
23. PW3 Bimla Bhutti has categorically stated
that personal search of Sapna was conducted on her
arrival on the spot. According to her, personal search of
Sapna and another accused Rani was taken together
and it took 5-10 minutes to conduct the search of the
accused and it was finished at around 10:30 AM. She
remained on the spot approximately for one and half
hours at around 1:30-2:00 PM and her signatures were
obtained by the police on all documents in one go and
her statement was also recorded by PW-9 ASI Bhup
Singh on the same day.
24. Prosecution case is that Rani was searched
first and personal search of Sapna was conducted after
2:20 PM on return arrival of PW 2 Constable Netar
Singh from the Police Station Kullu, after handing over
Rukka in case of Rani.
25. According to PW-1 Rajat Kumar and PW-3
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Smt. Bimla Bhutti came on the spot at 8:00 AM and
search of appellant was conducted thereafter.
26. According to PW-9, ASI Bhup Singh, personal
search of Rani was conducted at 11:00-11:30 AM and
thereafter, personal search of accused Sapna was
conducted at around 1:30 PM. It took approximately one
hour to prepare and serve notice under Section 50 of
NDPS Act and took about two hours to complete the
other proceedings, meaning thereby PW-3 Smt. Bimla
Bhutti should be on the spot till 4:00-5:00 PM, whereas
according to PW3 Bimla Bhutti, she had left the spot at
1:30-2:00 PM and by that time all documents had
signed by her and her statement had also been recorded.
According to PW-2, Constable Netar Singh, PW3 Smt.
Bimla Bhutti, District Panchayat Officer had reached on
the spot at 10:30 AM and in examination-in -chief, he
was silent about obtaining consent from Sapna as well
as Rani, but he had stated that two ladies were found
sitting on seat Nos. 5 and 6 and lady on seat No. 5
disclosed her name Rani and during checking 4.850 Kgs
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of Charas was recovered from her and thereafter
Investigating Officer prepared Rukka and handed over it
to him and he went to the Police Station Bhuntar and
handed over the Rukka to SHO Police Station, Bhuntar,
and thereafter he came back on the spot at about 2:20
PM and consent of Sapna was taken under Section 50 of
NDPS Act and at that time, Smt. Bimla Bhutti was
already present on the spot and search of Rani had
already been conducted in her presence.
27. According to PW-8 HC Chander Shekhar,
Rukka was handed over by PW-2 Netar Singh to him,
who was posted as MHC in Police Station Bhuntar and it
was he (PW-8) who registered the FIR. According to
Investigating Officer, PW9 Bhup Singh, Rukka was
again sent through PW-2 Netar Singh to the Police
Station for registration of FIR, but Netar Singh is
completely silent in this regard about visiting Police
Station in second case i.e. present case.
28. According to PW-2 Netar Singh as well as
PW-9 Bhup Singh, seal used by the Investigating Officer,
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after use, was handed over to PW-1 Rajat Kumar, who
is completely silent in this regard.
29. In the recovery memo, recovered contraband
has been stated to be brick shaped and photographs
also depicts so, but according to PW-1 Rajat Kumar,
shape of recovered Charas was flat.
30. According to PW-9, Bhup Singh, he prepared
the spot map, whereas according to PW-12 Sunil Kumar,
it was he, who prepared the spot map at the instance of
ASI Bhup Singh.
31. PW12 has stated that he proceeded to spot at
5:20 PM whereas as per daily diary JD entry No. 34, Ext.
P-19, he left the Police Station at 6:05 PM.
32. In NCB form, recovery of contraband from
Sapna has been stated to be at about 3:45 PM, whereas
according to PW3 Smt. Bimla Bhutti, both Sapna and
Rani were searched at about 10:30-11:00 AM and
according to PW2 Constable Netar Singh and PW11
LHHC Reema Devi, search of Sapna was conducted
immediately after arrival of Smt. Bimla Bhutti i.e. about
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11:00 AM, whereas entry in the NCB form is contrary to
the same. It is also noticeable that contraband was not
resealed by the SHO before depositing in the Malkhana .
34. Apart from aforesaid contradictions and
discrepancies, which are creating doubt about the
presence of official witnesses as well as Gazetted Officer
at relevant point of time, as claimed in the prosecution
case. There is another glaring discrepancy, which
creates doubt about the claim of the prosecution with
respect to compliance of Section 50 of NDPS Act in
Consent Memo (Ext. P2/PW9) prepared under Section
50 of NDPS Act. It is apt to notice that it has been
prepared, by filling the blanks in a printed proforma
and below the information given to the appellant
regarding her right to give personal search before
Gazetted Officer or the Magistrate, her signatures have
been obtained as a person to be searched and these
signatures have been purported to have been witnessed
by driver Tara Chand (expired), PW-1 Rajat Kumar,
Conductor and PW-2 Constable Netar Singh. It is clearly
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apparent that witness PW2 Netar Singh has been added
later on and under his name arrow has been marked
towards the signature of Sapna in which also there is
cutting and this signature of Sapna is below printed
words witness No.2. It is also noticeable that at one
place signature of witness Tara Chand is in Hindi and
on the same page his signature below the consent is in
English and signatures of Netar Singh have been put
below the words where signatures of person to be
searched were to be obtained. The some words of
consent are printed and some words are hand written
and there is no signature of Sapna below the so called
consent but in between Sapna has been written
below the name of Netar Singh and consent states ‘ ma
apni talashi najdiki rajpatrit adhikari ko dena ‘chahata’
hu . Sapna is female whereas consent appears to be
obtained of some male. At the time of obtaining consent
memo, FIR was not registered, but this memo also
contains FIR number, which has been written in one go
alongwith other entries on the consent memo.
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34. Similarly, arrest memo is also not beyond
doubt. At the time of arrest, Lata Devi and Reema Devi
have been shown witnesses to the arrest, but their
signatures are not there, only her names have been
written with address. However, their signatures are
there where information of arrest given to relative of
Sapna has been recorded. But Lata Devi has not been
cited a witness in challan.
35. At the time of production of case property
and documents in the Police Station, Inspector Sunil
Kumar prepared memo Ext. P22/PW9, but again
despite mentioning name of Reema Devi and Lata, their
signatures are missing on this memo also.
36. It is also relevant to point out that there were
three official witnesses on the spot. According to
prosecution story, out of them, two have been cited, one
is Investigating Officer PW9 Bhup Singh and another
PW2 Netar Singh has been citied as witness to the
documents as well as person who took Rukka to the
Police Station. Third official, HHC Sanjay Kumar,
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though, mentioned as present on the spot, but his
presence is not visible at any point of time, because
according to Investigating Officer, he kept on waiting for
arrival of Netar Singh for carrying out further
investigation with respect to Sapna after sending PW-2
Netar Singh with Rukka in case of Rani for registration
of FIR.
37. HHC Sanjay Kumar has neither been cited as
a witness in the list of witnesses submitted with challan
nor he has been examined in the Court. Out of three
police officials, only two were cited as a witness, it again
creates doubt about the story placed on record by the
prosecution.
38. Independent witnesses Driver Tara Chand and
Conductor Rajat Kumar were present on the spot. Lady
Constables Reema Devi, Lata and Smt. Bimla Bhutti,
District Panchayat Officer were also present on the spot.
HHC Sanjay Kumar was also present on the spot. As
per Daily Diary Report (Ext.P-18/PW8), apart from PW11
Reema Devi and Lata Devi, two other police officials i.e.
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HC Tarun Kumar and Driver of official vehicle had also
come on spot with Reema Devi and Lata Devi. But they
also not been cited as witnesses. Here question arises
that when other police officials were available on the
spot, then why PW9 Bhup Singh was waiting for return
of PW2 Netar Singh for investigation, search and seizure
in so called second case. In fact, there was no occasion
for PW-9 Bhup Singh to wait for Netar Singh return on
the spot to carry on further proceedings in case of
Sapna.
39. It appears to be a concocted story because
according to Reema Devi PW-11 and PW-3 Smt. Bimla
Bhutti, a search of Sapna had already been conducted
alongwith search of Rani and Bimla Bhutti had left the
place at 2:00 PM. after signing all the documents in
one go.
40. Discrepancies with respect to timing,
sometimes may not be fatal, but in the present case,
there is considerable time gap regarding the events
claimed to have happened during investigation, which
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are irreconcilable.
41. The discrepancy referred supra in isolation,
may have least bearing on prosecution case, if the
deposition of prosecution witnesses including official
witnesses would have been reliable and convincing. But
for discrepancies and material contradictions in their
statements, discrepancies noticeable in consent memo,
production of case property, other documents like arrest
memo as well as NCB form are sufficient to doubt the
veracity of prosecution story.
42. On the basis of evidence placed on record, it
can easily be construed that truth has not been
brought on record and the reality is something else,
otherwise than the story propounded by the
Investigating Officer by preparing the documents
somewhere else but not as claimed. It is settled law
that even if there is slightest doubt about the veracity of
the prosecution case, benefit has to be extended to the
accused.
43. It is also settled that more stringent the
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punishment, the greater is the responsibility of the
prosecution to prove the case beyond reasonable doubt.
44. From aforesaid discrepancies, contradictions
and lapses, we are of the considered opinion that
prosecution has failed to prove the guilt of the appellant
beyond reasonable doubt by leading cogent, reliable and
convincing evidence, therefore, appellant is entitled for
benefit of doubt.
45. Accordingly, impugned judgment and
sentence order dated 07.08.2023, passed by Special
Judge-1 Kullu, District Kullu, H.P. in case (Regd. No.)
No. 144(106)/2019, titled as State of Himachal Pradesh
Vs. Sapna arising from FIR No. 152 of 2019, dated
26.07.2019, are set aside. The appellant is acquitted of
the charges and is directed to be released forthwith if
not warranted to be detained in any other case
46. Release warrants be issued forthwith, if not
required in any other case.
47. Case property will be confiscated to the State
strictly in accordance with law after expiry of
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period of limitation of filing further proceedings before
competent Court of law.
48. The fine amount, if deposited, be refunded
after the expiry of 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
Apex Court.
49. In view of the provisions of Section 437-A
Code of Criminal Procedure, 1973, appellant Sapna is
directed to furnish a personal bond in the sum of Rs.
50,000/- with one local surety in the like amount to
the satisfaction of the Registrar (Judicial) of this Court,
which shall be effective for a period of six months, with
stipulation that in the event of Special Leave Petition
being filed against this judgment or on grant of leave,
the appellant, on receipt of notice thereof, shall appear
before the Hon’ble Supreme Court.
50. Record be sent back forthwith.
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26
( 2026:HHC:28383 )
High Court of H.P.
51. Pending miscellaneous application(s), if any,
also stand disposed of accordingly.
( Vivek Singh Thakur )
Judge
( Ranjan Sharma )
Judge
th
14 July,2026
( sushma )
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