Chamaru Ram Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

Chamaru Ram Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

Appeal partly allowed; judgment and order of the learned Trial Court set aside. Accused convicted under Section 20(b)(ii)(A) of the NDPS Act for possession of 52 grams of charas and sentenced to rigorous imprisonment for one year and fine of Rs. 10,000/-, with default rigorous imprisonment of two months; benefit of set off for imprisonment already undergone under Section 428 Cr.P.C. (now Section 468 BNSS); modified warrant of sentence to be issued; trial court record to be returned with a copy of the order.

Issue for consideration

Whether material contradictions and improvements in the statements of prosecution witnesses, ignored by the learned Trial Court, rendered the testimony unreliable and the conviction unsafe. +4 more

Court's answer

In view of the binding precedents of the Hon'ble Supreme Court, statements of witnesses cannot be discarded due to omissions, contradictions or discrepancies; the Court must see whether the discrepancies affect the prosecution case adversely and whether they relate to the core of the case or mere details.

Ratio / Principle

The contradiction regarding the number of vehicles or persons checked by the police relates to matters of detail, does not affect the core of the prosecution case, and is insignificant; such differences occur with time and estimates vary from person to person.

Key takeaways

There is no difference between a search light and a mega light and hence no real contradiction between the statements of Constable Hem Raj (PW-2) and HC Ramesh Kumar (PW-13); the failure of HC Dinesh Kumar to mention the searchlight can be due to failure of memory with time and does not adversely affect the prosecution case.ratio¶137
No adverse inference can be drawn against the prosecution for not examining all the prosecution witnesses; the prosecution is not bound to examine all cited witnesses and may drop witnesses to avoid multiplicity, the quality rather than quantity of evidence mattering.ratio¶212

Detailed headnote1 paragraphs

NDPS Act — conviction modified from commercial to small quantity. Appellant, convicted by the Special Judge, Chamba (judgment dated 01.03.2021) under Section 20(b)(ii)(C) NDPS Act for recovery of 1 kg 240 grams of charas/cannabis from his backpack during a chance 'nakka' at Koti Bridge (01.02.2018), appealed. HELD: (i) omissions, contradictions or discrepancies in witness statements cannot justify discarding testimony; the number-of-vehicles/persons-checked discrepancy and the vehicle-light/mega-light/search-light variance are matters of detail or failures of memory and do not affect the core of the case; (ii) the Public Prosecutor is not obliged to examine all cited witnesses and no adverse inference arises from non-examination; (iii) Section 42 NDPS Act has no application — the search was of a person walking on an open road, not of a building, conveyance or enclosed place; (iv) Section 50 NDPS Act compliance was not required as the recovery was from the backpack and not from personal search; (v) non-association of independent witnesses in a chance recovery is not fatal, though police testimony requires careful scrutiny, and the Trial Court rightly accepted the police witnesses' testimony; (vi) the FSL report showing intact, tallying seals establishes the integrity of the case property; BUT (vii) the bulk parcel was never produced — it was destroyed by the Drug Destruction Committee without any application, Magistrate's order or compliance report under Section 52-A NDPS Act read with GSR 38(E) dated 16.01.2015 being placed on record — so only the two 26-gram samples (52 grams, a small quantity) stood proven; consequently the conviction for commercial quantity could not be sustained. Conviction altered to Section 20(b)(ii)(A) NDPS Act for possession of 52 grams of charas; sentence reduced to one year's rigorous imprisonment and Rs. 10,000/- fine (default: two months' RI), with set-off under Section 428 Cr.P.C. (now Section 468 BNSS). Appeal partly allowed.

2025:HHC:835

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 133 of 2024 Reserved on: 01.01.2025 Date of Decision: 06.01.2025

Chamaru Ram

....Appellant

Versus

State of Himachal Pradesh

....Respondent

Coram

Hon’ble Mr Justice Tarlok Singh Chauhan, Judge. Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?¹ Yes

For the Appellant : Ms. Anjali Soni Verma, and Ms.Shivani Tegta, Advocates.

For the Respondent/ : Mr. Anup Rattan, Advocate State General with Ms. Sharmila Patial, Mr. Navlesh Verma, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment and order dated 01.03.2021 passed by learned Special Judge, Chamba, H.P. (learned Trial Court) vide which

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for 10 years, pay a fine of ₹1,00,000/- and, in default of payment of the fine, to undergo further simple imprisonment for one year. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that H.C. Ramesh Kumar (PW-13), HC Dinesh Kumar (PW-1), Constable Hem Raj (PW-2), HHG Raj Kumar, H.C. Sanjeev Kumar (PW-4), HHC Manohar Lal, LHC Upender Chona, Constable Sunil Kumar, Constable Sanjay Kumar (PW-12) and ASI Govind Pal were present at Koti Bridge on 01.02.2018 in an official vehicle bearing registration No. HP73-8754, being driven by Constable Dinesh Kumar and in a private vehicle bearing registration No. HP44-2048. They were checking the

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vehicles and the persons moving on the road. The accused came towards Koti Bridge at about 8:50 p.m. on foot. He got frightened after seeing the police and tried to go back. HC Ramesh Kumar (PW-13) apprehended him with the help of accompanying police officials. The accused was carrying a backpack (Ext.P-2) in his shoulders. He revealed his name as Chamaru Ram on enquiry. He could not give any satisfactory reply regarding the contents of the backpack and the place to which he was going. The place was lonely and deserted one. It was night time, and no independent witness was available; hence, Chamaru Ram's backpack was searched in the presence of police officials. The police found a carry bag bearing the words “Mahsem” inside the backpack. The police opened the carry bag and found black charas/cannabis. The police weighed the charas/cannabis in two lots: one lot of 700 grams and the second lot of 540 grams, and found its weight to be 1kg and 240 grams. The charas/cannabis was put in the carry bag, and the carry bag was put in the backpack in the same manner in which it was recovered. The backpack was put into a cloth parcel, and the same was sealed with six seals of ‘SA’. The seal impression was taken on a separate piece of

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cloth. NCB-1 form (Ext.PW13/A) was filled in triplicate. The seal impression was put on the NCB form. The parcel, NCB-I form and sample seal were seized vide memo (Ext.PW-1/B). Photographs (Ext.PW-8/A to Ext.PW-8/C) of the spot were taken by Constable Sanjay Kumar (PW-12). The seal was handed over to HC Dinesh Kumar (PW-1) after the use. Rukka (Ext.PW-2/A) was prepared and sent to the Police Station where F.I.R. (Ext.PW-11/A) was registered. HC Ramesh Kumar (PW-13) investigated the case. He prepared the site plan (Ext.PX) and recorded the statements of witnesses as per their version. He arrested the accused vide memo (Ext.PW-1/C). He searched the accused and prepared a memo (Ext.PW-1/D). The case property was produced before SI Krishan Kumar (PW-11), who resealed it with three seals of ‘SC’. SI Kirshan Kumar obtained the seal impression (Ext.PW-5/B) on a separate piece of cloth and put the seal impression on the NCB-1 form. He handed over the seal to constable Khem Raj (PW-5) after the use. He prepared the reseal memo (Ext.PW-5/A). He handed over the case property, NCB-1 form and sample seal to HC Rajput Pardeep (PW-7), who entered it in the Malkhana register at Sl. No.

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717/18 (Ext.PW-7/A) and deposited it in Malkhana. He handed over the parcel to HC Ramesh Kumar (PW-13) to get the inventory certified by the Court. HC Ramesh Kumar produced the case property and the accused before the learned Judicial Magistrate First Class, Dalhousie, District Chamba, H.P. with an application (Ext.PW-13/B) for certification of the inventory. Learned Judicial Magistrate First Class Dalhousie, District Chamba, H.P. passed an order (Ext.PW-13/C) and issued a certificate (Ext.PW-13/D). Two samples of 26 grams each of cannabis were drawn in the presence of the learned Magistrate. Each sample was put in a parcel, and the parcel was sealed with three seals of the Court. Seal impression (Ext.W-13/E) was obtained on a separate piece of cloth. Photographs (Ext.PW-13-F to Ext.PW-13/K) were taken. Certificate (Ext.PW-13/L) and Annexure-1 (Ext.PW13/M) were issued by the learned Judicial Magistrate, First Class, Dalhousie, District Chamba, H.P. HC Ramesh Kumar (PW-13) deposited the parcel, samples parcels, and seal impression with HC Rajput Pardeep (PW-7), who deposited it in the Malkhana. He sent the sample parcel, NCB-I form in triplicate, inventory certificate, certificates, and order of the

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learned Judicial Magistrate, First Class, Dalhousie, District Chamba, H.P., copies of seizure memo & reseal memo, and specimen of Court seal to SFSL, Junga, H.P. through Constable Surinder Singh (PW-6), who deposited them at State FSL, Junga, and handed over the receipt to MHC on his return. A special report (Ext.PW-4/B) was prepared and sent to the Additional Superintendent of Police, Chamba, through LC Anoopa (PW-3). She handed over the special report to Varinder Singh (Additional Superintendent of Police, Chamba, H.P.) on 03.02.2018 at 11:25 a.m. Varinder Singh, Additional S.P. Chamba, handed over the special report to HC Sanjeev Kumar (PW-4) after making his endorsement. HC Sanjeev Kumar (PW-4) made an entry in the receipt register at Sl. No. 57 (Ext.PW-4/C) and retained it on record. The result of the analysis (Ext.PY) was issued, in which it was shown that the exhibit was an extract of cannabis and a sample of charas, which contained 27.67% w/w resin in it. Statement of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the Court.

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The learned Trial Court charged the accused with the commission of an offence punishable under Section 20(b)(ii) (C) of the NDPS Act, to which the accused pleaded not guilty and claimed to be tried.

The prosecution examined 13 witnesses to prove its case. HC Dinesh Kumar (PW-1), Constable Hem Raj (PW-2), and Constable Sanjay Kumar (PW-12) are the official witnesses to the recovery. LC Anoopa (PW-3) carried the Special report to Additional S.P. Chamba. HC Sanjeev Kumar (PW-4) was posted as a Reader to Additional S.P.Chamba, to whom the Special Report was handed over by Additional S.P.Chamba. Constable Khem Raj (PW-5) is the witness to the resealing, Constable Surinder Singh (PW-6) carried the case property to SFSL, Junga, H.P. HC Rajput Pardeep (PW-7) was working as MHC with whom the case property was deposited. Sher Khan (PW-8) developed the photographs. LHHC Shankuntla (PW-9) proved the entries in the daily diary. Constable Amit Kumar (PW-10) prepared the CD regarding the destruction of the case property. SI Krishan Kumar (PW-11) was working as SHO, who resealed the case property.

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HC Ramesh Kumar (PW-13) effected the recovery and conducted the investigation.

The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution case in its entirety. He claimed that he was innocent,the witnesses deposed against him because they were police officials, and a false case was made out against him. No defence was sought to be adduced by the accused.

The learned Trial Court held that the prosecution case was based upon a chance recovery. The police apprehended the accused during the search of the vehicles and the people during the Nakka. It was not possible to associate independent witnesses in such circumstances. The witnesses consistently stated about the apprehension of the accused, the search of his backpack and the recovery of cannabis. Minor contradictions in the statements were not sufficient to discard them. The integrity of the case property was proved. There was no requirement to comply with Sections 42 and 50 of the NDPS Act. Therefore, the accused was convicted and sentenced as aforesaid.

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Being aggrieved and dissatisfied with the judgment and order passed by the learned Trial Court, the accused/appellant has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. There were material contradictions and improvements in the statements of prosecution witnesses, which were ignored by the learned Trial Court. The independent witnesses were not associated, which casts doubt on the prosecution case. All the official witnesses present on the spot were not examined. An adverse inference should have been drawn against the prosecution. There was noncompliance with Sections 42 and 50 of the NDPS Act, which are mandatory. The contradictions were significant, and the learned Trial Court erred in discarding them. The link evidence was missing, and the prosecution case was not proved beyond a reasonable doubt; therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

We have heard Ms Anjali Soni Verma and Ms Shivani Tegta, learned counsel for the appellant, and Mr Anup Rattan, learned Advocate General assisted by Ms Sharmila

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Patial, Mr Navlesh Verma, learned Additional Advocates General and Mr Raj Negi, learned Deputy Advocate General for the respondent/State.

Ms Anjali Soni Verma, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. There were major contradictions and improvements in the testimonies of official witnesses, and the learned Trial Court erred in discarding them. The prosecution had failed to comply with the requirements of Sections 42 and 50 of the NDPS Act, which are mandatory. The integrity of the case property was not established. There was no evidence that the sample was homogenous, and case property was not produced before the learned Trial Court, which is fatal to the case of the prosecution case. She prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. She relied upon the judgments of this Court in Sanju Kumar vs State of H.P. 2023:HHC8835 and Lalman vs State of Himachal Pradesh, 2024:HHC:6596 in support of her submission.

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Mr. Anup Rattan, learned Advocate General for the respondent-State, supported the judgment and order passed by the learned Trial Court. He submitted that the recovery was effected while checking the vehicles and the persons.It was a chance recovery, and it was not possible to associate any independent witness. The case property was destroyed by the Drug Destruction Committee, and a certificate of destruction was duly brought on record. Therefore, no adverse inference should be drawn against the prosecution. Samples were drawn randomly from the Charas as per the standing orders. The contradictions were minor and bound to come with time. Learned Trial Court had rightly discarded the minor contradictions. He prayed that the present appeal be dismissed.

We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

HC Ramesh Kumar (PW-13) stated that he, HC Dinesh Kumar (PW-1), Constable Hem Raj (PW-2), and HHG Raj Kumar had left Police Station Sadar Chamba at about 5:20

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p.m. in a private vehicle bearing registration No.HP44-2048. When they reached the police lines, they met an SIU team consisting of ASI Govind Pal, HC Sanjay Kumar, HHC Manohar Lal, LHC Upinder Chona, Constable Sunil Kumar and Constable Sanjay Kumar (PW-12), who were travelling in an official vehicle bearing registration No.HP73-8754, which was being driven by Constable Dinesh Kumar. Both the police teams went together towards Koti. They laid a nakka and started checking the vehicles and the people moving on the road. The accused came towards PWD Chowk at about 8:50 p.m. He got perplexed after seeing the police party and tried to flee by turning away. Police officials apprehended him. He revealed his name as Chamaru Ram on enquiry. The accused could not offer any satisfactory explanation about the articles lying inside the backpack and why he had tried to run after seeing the police party. The police checked the backpack and found a carry bag in it. The cannabis was weighed in two lots of 700 grams and 540 grams. The total weight of the contraband was found to be 1 kg 240 grams. The cannabis was put in the carry bag, and the carry bag was put in the backpack. The backpack was put in a cloth parcel, and the

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parcel was sealed with six seals of ‘SA’. The seal impression was taken on a separate piece of cloth. NCB-I form in triplicate was filled. The sealed parcel, NCB-I form, and sample seal were seized vide memo (Ext.PW-1/B). Photographs were taken. Seal was handed over to HC Dinesh Kumar (PW-1). Rukka (Ext.PW-2/A) was sent through Constable Hem Raj (PW-5) to the Police Station Sadar Chamba, H.P. The Site plan of the spot (Ext.PX) was prepared. Statements of witnesses were recorded as per their version.

Similar statements were made by HC Dinesh Kumar (PW-1), Constable Hem Raj (PW-2), and Constable Sanjay Kumar (PW-12).

Ms Anjali Soni Verma, learned counsel for the appellant-accused, highlighted the following contradictions in the statements of the witnesses:

i). HC Dinesh Kumar (PW-1) stated in his crossexamination that 10-15 vehicles and 3-4 persons were checked on the spot. C.Sanjay Kumar (PW-12) and HC Ramesh Kumar (PW-13) stated in their crossexamination that 30-35 vehicles were checked. HC Ramesh Kumar (PW-13) further in his crossexamination stated that no person was checked.

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ii). HC Dinesh Kumar (PW-1) it his crossexamination that the proceedings were conducted in the light of the vehicle. Constable Hem Raj (PW-5) in his cross-examination stated that nakka was laid in the light of vehicles and mega lights. HC Ramesh Kumar (PW-13) in his cross-examination stated that proceedings were conducted in the light of the vehicle and the searchlight.

The principles of appreciation of ocular evidence

were explained by the Hon’ble Supreme Court in Balu Sudam

Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023 SCC

OnLine SC 355 , wherein it was observed:-

Appreciation of oral evidence

“25. The appreciation of ocular evidence is a hard task. There is no fixed or straitjacket formula for appreciation of the ocular evidence. The judicially evolved principles for 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 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 witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

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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 eyewitness 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, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer, not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V . Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI . By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape 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,

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cannot be expected to be attuned to absorb the details.

VIII . The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

IX . By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X . In regard to the exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals, which varies from person to person.

XI . Ordinarily, a witness cannot be expected to recall accurately the sequence of events which 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 up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so 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.

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XIII . A former statement, though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later 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 Gujara t [ Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217: 1983 SCC (Cri) 728: AIR 1983 SC 753], Leela Ram v. State of Haryana [Leela Ramv. State of Haryana, (1999) 9 SCC 525: 2000 SCC (Cri) 222: AIR 1999 SC 3717] and Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State of U.P., 1959 SCC OnLine SC 17: AIR 1959 SC 1012]]

16. It was laid down by 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 that the Court has to examine the evidence of the witnesses to find out whether it has a ring of truth or not. The Court should not give undue importance to omission, contradictions and discrepancies which do not go to

the heart of the matter. It was observed at page 60:-

“ 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

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truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more, particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness.”

39. Referring to Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546] , Mr Tyagi argued that minor discrepancies caused by lapses in memory were acceptable, contradictions were not. In this case, there was no contradiction, only minor discrepancies.

40. In Kuriya v. State of Rajasthan [Kuriya v. State of Rajasthan, (2012) 10 SCC 433: (2013) 1 SCC (Cri) 202] , this Court held: (SCC pp. 447-48, paras 30-32)

“ 30 . This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such 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

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to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to the material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat [Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 : (2012) 2 SCC (Cri) 740], Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457: 2000 SCC (Cri) 1546], Gura Singh v. State of Rajasthan [Gura Singh v. State of Rajasthan, (2001) 2 SCC 205: 2001 SCC (Cri) 323] and Sukhchain Singh v. State of Haryana [Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100: 2002 SCC (Cri) 961] .

31 . What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case the Court has to consider whether the witness was stating the truth or not. [Ref. Sunil Kumar v. State (NCT of Delhi) [Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367: 2004 SCC (Cri) 1055] ].

32 . These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to state a minute-by-minute description of the event.

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Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of Haryana [Ashok Kumar v. State of Haryana, (2010) 12 SCC 350: (2011) 1 SCC (Cri) 266] and Shivlal v. State of Chhattisgarh [Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561 : (2011) 3 SCC (Cri) 777] .”

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 statement of the prosecution witnesses inasmuch as these witnesses have given different timing 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 statement 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 heart of the matter and shake the basic version of the prosecution witness.”

Similar is the judgment in Anuj Singh v. State of

Bihar, 2022 SCC OnLine SC 497: AIR 2022 SC 2817 , wherein it was observed:-

“ [17] It is not disputed that there are minor contradictions with respect to the time of the occurrence or injuries attributed on hand or foot, but the constant narrative of the witnesses is that the appellants were present at the place of occurrence

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armed with guns and they caused the injury on informant PW-6. However, the testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omissions, as observed by this court in Narayan Chetanram Chaudhary &Anr. Vs. State of Maharashtra, 2000 8 SCC 457 . This Court, while considering the issue of contradictions in the testimony while appreciating the evidence in a criminal trial, held that only contradictions in material particulars and not minor contradictions can be ground to discredit the testimony of the witnesses. The relevant portion of para 42 of the judgment reads as under:

"42. Only such omissions which amount to a contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of the witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false, and the sense of observation differs from person to person. The omissions in the earlier statement, if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is a contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."

18. Therefore, in view of the binding precedents of the

Hon’ble Supreme Court, the statements of the witnesses

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cannot be discarded due to omissions, contradictions or discrepancies. The Court has to see whether the discrepancies affect the prosecution case adversely or not and whether they are related to the core of the prosecution case or the details.

The contradiction regarding the number of vehicles or the persons checked by the police relates to matters of details and does not affect the core of the prosecution’s case. No person counts the number of vehicles, and a person, when asked about the number of vehicles, gives his estimate, which may vary from person to person; therefore, the difference in the number of vehicles is insignificant. The contradictions regarding the number of persons checked by the police party can occur with time; therefore, this contradiction will not make the prosecution case suspect.

All the witnesses consistently stated that the proceedings were conducted with the help of the lights of the vehicles. Constable Hem Raj (PW-2) stated that the mega light was also used for conducting the proceedings. HC Ramesh Kumar (PW-13) stated that a search light was also used. There

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is no difference between search light and mega light, and there is no real contradiction in the statements Constable Hem Raj (PW-2) and HC Ramesh Kumar (PW-13). The failure to mention the searchlight by HC Dinesh Kumar can be due to the failure of the memory with time. Hence, this contradiction will not affect the prosecution case adversely.

It was submitted that all the witnesses to the incident were not examined which would make the prosecution case doubtful. This submission cannot be accepted. It was held in Hukam Singh v. State of Rajasthan, (2000) 7 SCC 490: 2000 SCC (Cri) 1416: 2000 SCC OnLine SC 1311 that the Public Prosecutor is not obliged to examine all the witnesses. It was observed at page 495:

“ 13. When the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution”. It is clear from the said section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there

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are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.

14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that anyone among that category would not support the prosecution version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court.

15. A four-judge Bench of this Court had stated the above legal position thirty-five years ago in Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ 226] It is contextually apposite to extract the following observation of the Bench:

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“It is not unknown that where serious offences like the present are committed, and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court.”

16. The said decision was followed in Bava Hajee Hamsa v. State of Kerala [(1974) 4 SCC 479: 1974 SCC (Cri) 515: AIR 1974 SC 902] . In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033], Krishna Iyer J., speaking for a threejudge Bench had struck a note of caution that while a Public Prosecutor has the freedom “to pick and choose” witnesses he should be fair to the court and the truth. This Court reiterated the same position in Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158: 1976 SCC (Cri) 527 ].

It was laid down by the Hon’ble Supreme Court in

Pohlu v. State of Haryana, (2005) 10 SCC 196: 2005 SCC (Cri) 1496: 2004 SCC OnLine SC 1393 that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the testimony of the witnesses appears to be truthful, the non-examination of other witnesses will not make the testimony doubtful. It was observed at page 199: -

“10. It was then submitted that some of the material witnesses were not examined, and in this connection, it was argued that two of the eyewitnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a

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material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of the eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eyewitnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained.”

This position was reiterated in Rohtash Kumar v.

State of Haryana, (2013) 14 SCC 434: (2014) 4 SCC (Cri) 238: 2013

SCC OnLine SC 496 and it was held that the prosecution is not bound to examine all the cited witnesses and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed at page 442:

“Whether the prosecution must examine all the witnesses

14. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses, is whether the prosecution is bound to examine all the listed/cited witnesses. This Court, in Abdul Gani v. State of M.P . [(1952) 1 SCC 253: AIR 1954 SC 31: 1954 Cri LJ 323], has examined the aforesaid issue and held that as a general rule, all witnesses must be called upon to

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testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to, and no doubt would take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.

15. In Sardul Singh v. State of Bombay [AIR 1957 SC 747: 1957 Cri LJ 1325] , a similar view has been reiterated, observing that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose to examine, and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.

16. In Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ 226], this Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised.

In such cases, it is always open to the defence to examine such witnesses as their own witnesses , and the court itself may also call upon such a witness in the interests of justice under Section 540 CrPC. (SCC p. 209, para 12)emphasis supplied)

(See also Bir Singh v. State of U.P. [(1977) 4 SCC 420: 1977 SCC (Cri) 640] )

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17. In Darya Singh v. State of Punjab [AIR 1965 SC 328 : (1965) 1 Cri LJ 350] , this Court reiterated a similar view and held that if the eyewitness(s) is deliberately kept back, the court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.

18. In Raghubir Singh v. State of U.P. [(1972) 3 SCC 79: 1972 SCC (Cri) 399: AIR 1971 SC 2156] this Court held as under: (SCC p. 84, para 10)

“ 10 . … Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has not shown how the prosecution story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally, we may point out that the accused, too, have not considered it proper to produce those persons as witnesses for controverting the prosecution version .”(emphasis added)

19. In Harpal Singh v. Devinder Singh [(1997) 6 SCC 660: 1997 SCC (Cri) 981: AIR 1997 SC 2914], this Court reiterated a similar view and further observed : (SCC p. 668, para 24)

“ 24 . … Illustration ( g ) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness.”

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20. In Mohanlal Shamji Soni v. Union of India [1991 Supp (1) SCC 271: 1991 SCC (Cri) 595: AIR 1991 SC 1346] , this Court held : (SCC p. 277, para 10)

“ 10 . It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence, and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless, if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under Illustration ( g ) to Section 114 of the Evidence Act. … In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.”

21. In Banti v. State of M.P. [(2004) 1 SCC 414: 2004 SCC (Cri) 294: AIR 2004 SC 261] , this Court held : (SCC p. 419, paras 12-14)

“ 12 . In trials before a Court of Session, the prosecution ‘shall be conducted by a Public

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Prosecutor’. Section 226 of the Code of Criminal Procedure, 1973 … enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. … If that version is not in support of the prosecution case, it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

13 . When the case reaches the stage as envisaged in Section 231 of the Code, the Sessions Judge is obliged ‘to take all such evidence as may be produced in support of the prosecution’. It is clear from the said section that the Public Prosecutor is expected to produce evidence ‘in support of the prosecution’ and not in derogation of the prosecution case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the court can be saved from repetitious depositions on the same factual aspects. … This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the court considerably in lessening the workload. The time has come to make every possible effort to lessen the workload, particularly of those courts crammed with cases, but without impairing the cause of justice.

14 . … It is open to the defence to cite him and examine him as a defence witness.”

22. The said issue was also considered by this Court in R. Shaji [R. Shaji v. State of Kerala, (2013) 14 SCC 266: AIR 2013 SC 651] and the Court, after placing reliance upon its judgments in Vadivelu Thevar v. State of Madras [AIR 1957 SC 614: 1957 Cri LJ 1000] and Kishan

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Chand v. State of Haryana [(2013) 2 SCC 502: JT (2013) 1 SC 222] , held as under : (SCC pp. 281-82, para 39)

“ 39 . In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and, trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus the quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this does not carry any weight.”

23. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution, and “the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive”. In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to “pick and choose” his witnesses, as he must be fair to the court and, therefore, to the truth. In a given case, the court

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can always examine a witness as a court witness if it is so warranted in the interests of justice. In fact, the evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.

This position was reiterated in Rajesh Yadav v. State

of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150 , wherein it

was observed at page 224: -

Non-examination of witness

34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution, along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.

35. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369: 1976 SCC (Cri) 646] : (SCC pp. 377-78, para 13)

“ 13 . Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some

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persons living in that locality like the “pakodewalla”, hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution case rests entirely on the prosecution, and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness, even on minor points, would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were, therefore, material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters . In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted, a large crowd had gathered, and some of the members of the crowd had actually seen the occurrence and

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were cited as witnesses for the prosecution and then withheld. We must not forget that in our country; there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching crossexamination which they have to face before the courts. Therefore, nobody wants to be a witness in a murder or any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes.”(emphasis supplied)

36. This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195] : (SCC pp. 410-11, para 19)

“ 19 . In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a timehonoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of

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more witnesses does not carry any weight. Thus, the conviction can even be based on the testimony of a sole eyewitness if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC 614], Kunju v. State of T.N. [Kunju v. State of T.N., (2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana [Kishan Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807] .)”

Thus, no adverse inference can be drawn for not

examining all the prosecution witnesses.

It was submitted that there is non-compliance with Section 42 of the NDPS Act. This submission is only stated to be rejected; the police had effected the search of the accused, who was walking on the road. There was no search inside the building, conveyance or enclosed place mentioned in Section 42 of the ND& PS Act. It was laid down by the Hon’ble Supreme Court in Raju v. State of W.B., (2018) 9 SCC 708: (2019) 1 SCC (Cri) 371: 2018 SCC OnLine SC 1344 that Section 42 does not apply to the search made of a person walking in an open space. It was observed at page 716:-

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“ 12. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him only when an offence punishable under the Act has been committed in any building, conveyance or enclosed place or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

13. The appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase “public place” in the Explanation to Section 43. Section 42 had no application.”

Thus, there was no requirement of compliance

with regard to the provisions of Section 42 of the ND&PS Act,

and the prosecution case cannot be doubted due to noncompliance with Section 42 of the ND&PS Act.

It was submitted that a personal search of the accused was conducted, and the provisions of Section 50 of the NDPS Act was not complied with. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in

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Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262: AIR 2023 SC 5164, that where the recovery was effected from the backpack being carried by the accused, and no recovery was effected from the personal search, there is no requirement to comply with the provision of Section 50 of NDPS Act. Hence, the submission that the prosecution case is to be discarded due to the non-compliance of Section 50 of the NDPS Act is not acceptable.

It was submitted that no efforts were made to associate any independent witness, and it is fatal to the prosecution case. This submission is not acceptable. The statements of prosecution witnesses show that the police were checking the vehicles and the people. The accused ran away after seeing the police, and police apprehended him based on suspicion. A search of the backpack was conducted, during which one carry bag containing cannabis was found in it. It was laid down by the Hon'ble Supreme Court in Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the police party is under no obligation to join independent witnesses while going on patrolling duty, and the association of any

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person after effecting the recovery would be meaningless. It was observed:

“3. Learned counsel for the appellant has taken us through the evidence recorded by the prosecution as also the judgment under appeal. Except for the comment that the prosecution is supported by two police officials and not by any independent witness, no other comment against the prosecution is otherwise offered. This comment is not of any value since the police party was on patrolling duty, and they were not required to take along independent witnesses to support recovery if and when made. It has come in the evidence of ASI Jangir Singh that after the recovery had been effected, some people had passed by. Even so, obtaining their counter-signatures on the documents already prepared would not have lent any further credence to the prosecution version.”

In similar circumstances, it was laid down by this

Court in Chet Ram Vs State Criminal Appeal no. 151/2006 decided

on 25.7.2018 that when the accused was apprehended after he tried to flee on seeing the police, there was no necessity to associate any person from the nearby village. It was observed:-

“(A)appellant was intercepted and search of his bag was conducted on suspicion, when he turned back and tried to flee, on seeing the police. Police officials did not have any prior information, nor did they have any reason to believe that he was carrying any contraband. They overpowered him when he tried to run away and suspected that he might be carrying some contraband in his bag. Therefore, the bag was

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searched, and Charas was recovered. After the recovery of Charas, there was hardly any need to associate any person from the nearby village because there remained nothing to be witnessed .

It is by now well settled that non-association of independent witnesses or non-supporting of the prosecution version by independent witnesses where they are associated, by itself, is not a ground to acquit an accused. It is also well-settled that the testimony of official witnesses, including police officials, carries the same evidentiary value as the testimony of any other person. The only difference is that Courts have to be more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of official witnesses, in a case where independent witnesses are not associated, contradictions and inconsistencies in the testimony of such witnesses are required to be taken into account and given due weightage unless satisfactorily explained. Of course, it is only the material contradictions and not the trivial ones, which assume significance.” (Emphasis supplied)

It was laid down by the Hon’ble Supreme Court of

India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557 : (2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that nonassociation of the independent witnesses will not be fatal to the prosecution case. However, the Court will have to scrutinise the statements of prosecution witnesses carefully. It was observed on page 566:

“(C) Need for independent witnesses

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19. It would be gainsaid that the lack of independent witnesses is not fatal to the prosecution case. [ Kalpnath Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998 SC 201 , para 9] However, such omissions cast an added duty on courts to adopt a greater degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction.”

This position was reiterated in Rizwan Khan v. State

of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730, wherein it was observed at page 633:

“12. It is settled law that the testimony of the official witnesses cannot be rejected on the grounds of noncorroboration by independent witnesses. As observed and held by this Court in a catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ].

13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] , while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under : (SCC p. 568)

“ 15 . The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191] , relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because the prosecution did not examine any independent witness would not necessarily lead to a conclusion that the accused

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was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved merely on account of their official status.

16 . In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248] , it was held as under : (SCC p. 655)

‘It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.’”

Similar is the judgment of this Court in Balwinder

Singh & Anr. Vs State of H.P., 2020 Criminal L.J. 1684 , wherein it

was held:-

“3. (iii) Learned defence counsel contended that in the instant case, no independent witness was associated by the Investigating Officer; therefore, the prosecution case cannot be said to have been proved by it in accordance with provisions of the Act. Learned defence counsel, in support of his contention, relied upon titled Krishan Chand versus State of H.P.,2017 4 CriCC 531

3(iii)(d). It is by now well settled that prosecution case cannot be disbelieved only because the independent witnesses were not associated.”

This position was reiterated in Kallu Khan v. State

of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223 ,

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wherein it was held at page 204: -

“17. The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two courts, has also been dealt with by this Court in Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] holding that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was falsely implicated. Therefore, the said issue is also well settled and in particular, looking at the facts of the present case, when the conduct of the accused was found suspicious, and a chance recovery from the vehicle used by him is made from a public place and proved beyond a reasonable doubt, the appellant cannot avail any benefit on this issue. In our view, the concurrent findings of the courts do not call for interference..”

35. A similar view was taken in Kehar Singh v. State of

H.P., 2024 SCC OnLine HP 2825, wherein it was observed:

16. As regards non-association of the independent witnesses, it is now well settled that non-association of the independent witnesses or non-supporting of the prosecution version by independent witnesses itself is not a ground for acquittal of Appellants/accused. It is also well-settled that the testimonies of the official witnesses, including police officials, carry the same evidentiary value as the testimony of any other person. The only difference is that the Court has to be most circumspect while appreciating the evidence of the official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of the official witnesses, in cases where independent witnesses are not associated,

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contradictions and inconsistencies in the testimonies of such witnesses are required to be taken into account and given due weightage unless satisfactorily explained. However, the contradiction must be material and not trivial one, that alone would assume significance.

17. Evidently, this is a case of chance recovery; therefore, the police party was under no obligation to join independent witnesses while going on patrolling duty, and the association of any person after effecting the recovery would be meaningless.

Xxxx

19. A similar reiteration of law can be found in the judgment rendered by the learned Single Judge of this Court in Avtar @ Tarri v. State of H.P., (2022) Supreme HP 345 , wherein it was observed as under: —

“24. As regards the second leg of the argument raised by learned counsel for the appellant, it cannot be said to be of much relevance in the given facts of the case. The fact situation was that the police party had laid the ‘nakka’ and immediately thereafter had spotted the appellant at some distance, who got perplexed and started walking back. The conduct of the appellant was sufficient to raise suspicion in the minds of police officials. At that stage, had the appellant not been apprehended immediately, police could have lost the opportunity to recover the contraband. Looking from another angle, the relevance of independent witnesses could be there when such witnesses were immediately available or had already been associated at the place of ‘nakka’. These, however, are not mandatory conditions and will always depend on the fact situation of each and every case. The reason is that once the person is apprehended and is with the police, a subsequent association of independent

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witnesses may not be of much help. In such events, the manipulation, if any, cannot be ruled out.”

Xxxx

22. A similar reiteration of law can be found in a very recent judgment of the Coordinate Bench of this Court in Cr. A. No. 202 of 2020, titled Dillo Begum v. State of H.P., decided on 27.03.2024 .”

Thus, in view of the binding precedents of this

Court and Hon’ble Supreme Court, the non-association of independent witnesses is not fatal, and the prosecution case cannot be discarded due to the non-association of independent witnesses. However, the Court will have to carefully scrutinise the testimonies of the police officials.

The accused stated in his statement recorded under Section 313 of Cr.P.C. that he was falsely implicated, and the witnesses deposed against him because they were police officials. No material was brought on record to show any motive of the police officials to falsely depose against the accused. It was laid down by the Hon’ble Supreme Court in Kripal Singh v. State of Rajasthan , (2019) 5 SCC 646: (2019) 2 SCC (Cri) 680: 2019 SCC OnLine SC 207 that the testimonies of the police officials cannot be ignored because they are police officials. It was observed at page 656:

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“21. The submission of the learned Senior Counsel for the appellant that recovery has not been proved by any independent witness is of no substance for the reason that in the absence of an independent witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials, unless supported by an independent witness, is unworthy of acceptance or the evidence of police officials can be outrightly disregarded.”

Therefore, the learned Trial Court had rightly

accepted the testimonies of all the police officials.

39 The integrity of the case property has also been established. The samples were drawn before the learned Judicial Magistrate, First Class, Dalhousie, District Chamba, H.P. and were sealed with the Court seal. The report of the analysis (Ext.PY) shows that the sealed parcel bore three seals of ‘Civil Judge cum Judicial Magistrate Dalhousie’, which were found intact and tallied with the specimen seal sent by the forwarding authority. This report shows that the case property was intact, and there was no tampering with the seals.It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, that where the report of analysis shows that the seals were intact, the case of the prosecution that the case property remained intact is to be accepted as correct. It was observed:

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“A perusal of the report of the expert Ex.PW8/A shows that the samples were received by the expert in a safe manner, and the sample seal separately sent tallied with the specimen impression of a seal taken separately. Thus, there was no tampering with the seal, and the seal impressions were separately taken and sent to the expert also.”

40. Similar is the judgment in Hardeep Singh vs State of

Punjab 2008(8) SCC 557, wherein it was held:

“It has also come on evidence that till the date the parcels of the sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the previously mentioned seal in the sample at any stage, and the sample received by the analyst for chemical examination contained the same opium, which was recovered from the possession of the appellant. In that view of the matter, a delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant.”

41. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC

402, the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon’ble Supreme Court that case property was produced in the Court, and there was no evidence of tampering. Seals were found to be intact, which would rule out the possibility of tampering. It was observed:

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“The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put in the samples were in any manner tampered with before it was examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to how the aforesaid delay of seven days has affected the said examination when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion, is based on surmises and conjectures and cannot take the place of proof.

We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard.

The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with.”

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42. Similar is the judgment of the Hon'ble Supreme

Court in Surinder Kumar vs State of Punjab (2020) 2 SCC 563 , wherein it was held:-

“10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3) handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence was incomplete. In this regard, it is to be noticed that Yogi Raj SHO handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P13. The concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody, in Police Station Khuian Sarwar till further orders. Since Joginder Singh, ASI, was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all.

Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the

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Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete .” (Emphasis supplied)

43. Therefore, the prosecution version is to be

accepted as correct that the case property remained intact till its analysis at FSL, Junga.

44. The prosecution had only produced the samples before the Court, and the bulk parcel was not produced before the Court. It was submitted that the case property was disposed of as per orders of the Drug Destruction Committee. Certificate of Destruction (Ext.PW-13/O) was produced on record; however, no order of destruction of the case property was produced before the learned Trial Court.

The Central Government issued a notification under Section 52-A of the NDPS Act for the disposal of seized narcotic drugs vide GSR 38 (E) dated 16.01.2015. Para -3 of the notification provides that an Officer-in-charge of a Police Station or any officer empowered under Section 53 of the NDPS Act shall initiate action for disposal of narcotic drugs. Para 4 provides the manner of disposal. Para-5 deals with the Drug Disposal Committee, and Para 7 deals with the

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procedure to be followed by the Drug Disposal Committee regarding the disposal of seized items. It provides that the Committee shall examine the list to satisfy itself that the requirement of Section 52-A of the NDPS Act has been complied with. They shall endorse the necessary certificate, examine and verify the weight and other details and record its findings in each case.

In the present case, no such record was produced before the Court. It was laid down in Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028: 2003 SCC OnLine SC 1038 , that where the case property was not produced before the Court, the conviction of the accused could not be sustained. It was observed:

“6. In our view, the view taken by the High Court is unsustainable. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials, which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile, so the

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panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house, in collusion with the police, had lodged a false case only for evicting the accused from the house in which they were living. Finally, we noticed that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and the non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.”

It was held in Noor Aga v. State of Punjab, (2008) 16

SCC 417: (2010) 3 SCC (Cri) 748: 2008 SCC OnLine SC 1026, that the case property can be destroyed as per the order of the competent Magistrate and the non-production of the case property will create a serious dent in the prosecution case. It was observed:

“92. Omission on the part of the prosecution to produce evidence in this behalf must be linked with a second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. The respondents contended that the same had been destroyed. However, on what authority it was done is not clear. The law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ ; on a bare perusal whereof, it is apparent that at no point of time had any prayer been made for the destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section

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110(1-B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory, etc. The same does not contain within its mandate any direction as regards destruction.

93. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of the Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes:

“( a ) Certifying correctness of the inventory so prepared; or

( b ) Taking, in the presence of such Magistrate, photographs of substances and certifying such photographs as true or

( c ) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.”

Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefore such a provision is made would be evident from sub-section (4) of Section 52-A, which reads as follows:

“52-A. Disposal of seized narcotic drugs and psychotropic substances .—***

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

Concededly, neither was any such application filed nor was any such order passed. Even no notice has been given to the accused before such alleged destruction.

94. We must also notice a distinction between Section 110(1-B) of the 1962 Act and Section 52-A(2) of the Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52-A. It is of some importance to notice that Para 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1-B) of the 1962 Act, as the aspect of disposal clearly provided for under Section 52-A of the Act is not alluded to. The High Court, in its judgment, purported to have relied upon an assertion made by the prosecution with regard to the prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to the destruction of case property, stating:

“To a specific query put to Mr Guglani by the Court with regard to the aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained under Section 110(1-B) of the Customs Act. He states that in this regard, a sample as per the provisions contained in sub-clause ( c ) to clause (1-B) is also drawn for the

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purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed.

Maybe, in my view, some irregularities were committed in this case by the Customs Department while obtaining the order, Exhibit PJ from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved under Section 110(1-B) of the Customs Act or at least a specific request in this regard should have been made in the application, but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution from which the appellant can derive any benefit, especially under the circumstances when confessional statements made by the appellant are held to be made voluntarily as observed by me hereinabove…. Similarly, non-production of cardboard cartons is also not fatal to the prosecution.”

The question which arises for our consideration is as to whether it is permissible to do so. Evidently, it is not. Firstly, because taking recourse to the purported general practice adopted by the Customs Department is not envisaged in regard to prosecution under the Act. Secondly, no such general practice has been spoken of by any witness. A statement made at the Bar as regards the existence of such a purported general practice, to say the least, cannot be a substitute of evidence whereupon only the court could rely. Thirdly, the High Court failed to take into consideration that a certificate issued under Section 110(1-B) of the 1962 Act can be recorded as a certificate of authentication and no more; authority for disposal would require a clear direction of the court in terms of Section 52-A of the Act. Fourthly, the High Court failed and/or neglected to consider that physical evidence, being the property of the court and

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being central to the trial, must be treated and disposed of in strict compliance with the law.

95. The High Court proceeded on the basis that the non-production of physical evidence is not fatal to the prosecution case, but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose, the retracted confession on the part of the accused could not have been taken recourse to.”

It was held in Ashok v. State of M.P., (2011) 5 SCC 123:

(2011) 2 SCC (Cri) 547: 2011 SCC OnLine SC 570 that in the event of non-production of the case property before the Court, the report of the Forensic Analysis cannot be connected to the case. It was observed:

“12. Last but not least, the alleged narcotic powder seized from the possession of the accused, including the appellant, was never produced before the trial court as a material exhibit, and once again, there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.”

It was held in Vijay Jain v. State of M.P., (2013) 14

SCC 527: (2014) 4 SCC (Cri) 276: 2013 SCC OnLine SC 500 that

non-production of the case property will not establish the

seizure from the accused. It was observed:

“10. On the other hand, on a reading of this Court's judgment in Jitendra case [Jitendra v. State of M.P.,

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(2004) 10 SCC 562: 2004 SCC (Cri) 2028 ], we find that this Court has taken the view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123:(2011) 2 SCC (Cri) 547] this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as a material exhibit and there was no explanation for its non-production and this Court held that there was, therefore, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.

Xxxx

12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable.

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It was held in Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC 305: (2018) 1 SCC (Cri) 711: 2017 SCC OnLine SC 1505 that where the case property was not produced before the Court, the prosecution case was not proved. It was observed:

“6. In the facts of the present case, the independent witnesses with regard to the search and seizure, PW 2 and PW 3, having turned hostile, deposing that their signatures were obtained on blank paper at the police station, the mere fact of an FSL Report (Ext. 8), being available is no confirmation either of the seizure or that what was seized was ganja, in the absence of the production of the seized item in court as an exhibit. The non-production of the seized material is therefore considered fatal to the prosecution case. The issue whether there has been compliance with Sections 42 and 50 of the NDPS Act loses its relevance in the facts of the case.

7. The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being ganja. No explanation has also been furnished by the prosecution for the non-production of the ganja as an exhibit in the trial. The benefit of the doubt will, therefore, have to be given to the appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra v. State of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028] and reiterated in Ashok v. State of M.P. [Ashok v. State of M.P., (2011) 5 SCC 123: (2011) 2 SCC (Cri) 547] as follows: (SCC pp. 126-27, paras 12-13)

“ 12. Last but not least, the alleged narcotic powder seized from the possession of the accused, including the appellant, was never produced before the trial

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court as a material exhibit, and once again, there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.

13. It may be noted here that in Jitendra v. State of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028] , on similar facts, this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028 ], the Court observed and held as under: (SCC pp. 564-65, paras 5-6)

‘ 5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court so as to connect them with the samples sent to the forensic science laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the forensic science laboratory were taken from the drugs seized from the possession of the accused. …

6. … The best evidence would have been the seized materials, which ought to have been

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produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile, so the panchnama is nothing but a document written by the police officer concerned.”

It was held in Union of India v. Jarooparam, (2018)

4 SCC 334: (2018) 2 SCC (Cri) 465: 2018 SCC OnLine SC 204 that where no application for the destruction of the case property was filed, and the case property was not produced before the court, the prosecution case cannot be relied upon. It was observed:

“9. From the above proceedings, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff, as well as the samples sealed as usual, were handed over physically to the Investigating Officer Harvinder Singh (PW 6). Also, the trial court, in its judgment, specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding. The trial court more specifically instructed to put a note with red ink on the front page of the record for its safe custody. In such a situation, it assumes important that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of a proper explanation from the prosecution significantly undermines its case and reduces the

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evidentiary value of the statements made by the witnesses.

10. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create doubt in the mind of the Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed cannot be accepted as it is not clear that on what authority it was done. The law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point in time, any prayer had been made by the prosecution for the destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to for its disposal is to obtain an order from the competent court of Magistrate as envisaged under Section 52-A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application (see also Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748 ] ).

11. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material, nor was any such order passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial court appears to have believed the prosecution story in haste and awarded conviction to the respondent without warranting the production of a bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of

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contraband were not exhibited to the witnesses at the time of adducing evidence.”

This position was reiterated in Mangilal v. State of

M.P., 2023 SCC OnLine SC 862, wherein it was observed:

“8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act is required to be duly complied with, starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous, and therefore, the burden heavily lies on the prosecution. Non-production of physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play, such as the deposit of the seal, numbering the containers seriatim wise and keeping them in lots preceded by compliance with the procedure for drawing samples….

Xxxxx

The record would also indicate that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point in time. This itself is a sufficient indication that the mandate of Section 52A has not been followed. There is no explanation either for the non-production of the seized materials or the manner in which they are disposed of. No order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act. P.W.10, Executive Magistrate, has deposed to the fact that he did not pass

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any order for the disposal of the narcotics substance allegedly seized. Similarly, P.W.12, who is in chargeof Malkhana , also did not remember any such order having been passed. On the issue of disposing of narcotic substances in derogation of the compliance contained in Section 52A of the NDPS Act”

54. In the present case, no person has deposed that

any application for the destruction of the case property was filed. No report of the compliance of the procedure laid down by the Central Government was filed; therefore, it cannot be said that the prosecution had a valid reason for the nonproduction of the case property before the learned Trial Court.

55. The prosecution has only produced two samples before the learned Trial Court. One of the samples was analysed in the laboratory. The weight of the sample was 26 and 26 grams; therefore, the prosecution has only produced 52 grams of the case property before the learned Trial Court, which is a small quantity. Hence, the prosecution case is only established regarding the possession of a small quantity of the charas/cannabis.

56. The attention of the learned Trial Court was not brought to the judgments of the Hon’ble Supreme Court, wherein it was held that the production of the case property is

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essential, and in the absence of the same, the accused cannot be convicted of the possession of the charas. Therefore, the judgment passed by the learned Trial Court convicting the accused for the possession of the commercial quantity of the charas/cannabis cannot be sustained.

57. In view of the above, the present appeal is partly allowed, and the judgment and order passed by the learned Trial Court are ordered to be set aside. The accused is convicted of the commission of an offence punishable under Section 20(b)(ii)(A) of the NDPS Act for possession of 52 grams of charas and is sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹10,000/- and in default of payment of fine to further undergo rigorous imprisonment of two months for the commission of an offence punishable under Section 20(b)(ii)(A) of the NDPS Act. The convict is entitled to the benefit of set off regarding the imprisonment already undergone by him as per Section 428 of Cr.P.C. (now substituted by Section 468 of BNSS). The modified warrant of sentence be issued accordingly.

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The record of the learned Trial Court be returned

with a copy of this order for the information of the learned Trial Court.

Appeal stands disposed of alongwith pending

miscellaneous application(s), if any.

(Tarlok Singh Chauhan) Judge

(Rakesh Kainthla) Judge

6^th January, 2025 (ravinder )

Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, KARAN OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225878f23c9e a27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec939375291962d0d90d094876bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document GULERIA Location: Date: 2025-01-06 17:42:58

Issues for consideration

5 issues framed by the court

AI extract

1.
Whether material contradictions and improvements in the statements of prosecution witnesses, ignored by the learned Trial Court, rendered the testimony unreliable and the conviction unsafe.¶43
The court held
In view of the binding precedents of the Hon'ble Supreme Court, statements of witnesses cannot be discarded due to omissions, contradictions or discrepancies; the Court must see whether the discrepancies affect the prosecution case adversely and whether they relate to the core of the case or mere details.ratio¶132
2.
Whether the prosecution was obliged to examine all official witnesses present on the spot, and whether an adverse inference should have been drawn for non-examination.¶43
The court held
No adverse inference can be drawn against the prosecution for not examining all the prosecution witnesses; the prosecution is not bound to examine all cited witnesses and may drop witnesses to avoid multiplicity, the quality rather than quantity of evidence mattering.ratio¶212
3.
Whether there was non-compliance with Sections 42 and 50 of the NDPS Act and whether such compliance was mandatory, vitiating the prosecution case.¶43
The court held
There was no requirement of compliance with Section 42 of the ND&PS Act because the search was of a person walking on the road and not a search inside a building, conveyance or enclosed place; the prosecution case cannot be doubted for such non-compliance.ratio¶220
4.
Whether non-association of independent witnesses cast doubt on the prosecution case and was fatal to it.¶43
The court held
Non-association of independent witnesses is not fatal and the prosecution case cannot be discarded on that ground; however, the Court must carefully scrutinise the testimonies of police officials.ratio¶282
5.
Whether the link evidence was missing because only the samples (and not the bulk parcel) were produced, the bulk having been destroyed by the Drug Destruction Committee without production of the Section 52-A order, and whether the conviction for commercial quantity could be sustained.¶44
The court held
The integrity of the case property stands established: samples were drawn before the Judicial Magistrate and sealed with the Court seal, and the report of analysis (Ext.PY) showed the seals intact and tallying with the specimen seal; hence the prosecution version that the case property remained intact till analysis at FSL Junga is to be accepted as correct.ratio¶313