Bal Krishan Vs State of Hp

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2025:HHC:44492

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 4010 of 2013 Reserved on: 25.11.2025 Date of Decision: 19.12.2025

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Bal Krishan ...Appellant Versus State of H.P. ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No : For the Appellant Mr Rupinder Singh Minhas, Advocate, vice Mr Tarun K. Sharma, Advocate. : For the Respondent Mr Prashant Sen, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment of conviction dated 14.5.2013 and order of sentence dated 16.5.2013, passed by learned Additional Sessions Judge, Hamirpur, District Hamirpur, H.P., (learned Trial Court), vide which the respondent (accused before learned Trial Court) was convicted of committing an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (NDPS) and

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

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sentenced to undergo rigorous imprisonment for five years, pay a fine of ₹50,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that HC Prakash Chand (PW8), Constable Ramel Singh (PW3) and Constable Suresh Kumar (PW7) were going towards Gasota on 27.10.2010 in the official vehicle bearing registration No. HP-22A-7844, which was being driven by Constable Raj Kumar (PW6). They reached 200 yards ahead of the Gasota temple at about 5.30 PM, when they saw that the accused was coming towards the police vehicle. He got frightened after seeing the police and returned. The police apprehended him. He revealed his name as Bal Krishan. Chuni Lal (PW1) and Hari Dass (not examined) were associated. The accused was informed that the police suspected the possession of narcotics by him, and he had a right to be searched before a Gazetted Officer or a Magistrate.

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The accused consented to be searched by the police vide memo (Ex.PW1/A). The police gave their personal search to the accused. Nothing incriminating was found in their possession. Memo (Ex.PW1/C) was prepared. The search of the accused was conducted. He had a black P-Cap (Ex.P2) in his right hand, which was checked. It contained a polythene bag (Ex.P3) having black sticks (Ex.P4). HC Prakash Chand (PW8) smelled the sticks and found them to be charas. He weighed the sticks and found their weight to be 400 grams. Sticks were put in a polythene bag from which they were recovered. The polythene bag was put in the P- Cap in the same manner in which it was found. The P-Cap was put in a cloth parcel, and the parcel was sealed with three impressions of seal ‘M’. Seal impression (Ex.PW8/B) was taken on a separate piece of cloth. NCB-1 Form (Ex.PW8/C) was filledin triplicate, and the impression of seal ‘M’ was put on the form. The parcel was seized vide memo (Ex.PW1/B). HC Prakash Chand (PW8) prepared the rukka (Ex.PW8/D) and sent it to the Police Station, where FIR (Ex.PW9/A) was registered. HC Prakash Chand (PW8) investigated the matter. He prepared the site plan (Ex.PW8/H). He arrested the accused vide memo (Ex.PW1/D). He searched the accused and prepared the memo (Ex.PW1/C). He

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produced the accused, case file and the case property before Inspector Anant Ram (PW9), who re-sealed the parcel with three seals of Seal ‘O’. He put the seal ‘O’ on the NCB-I Form (Ex.PW8/C) and obtained the sample seal ‘O’ (Ex.PW8/J) on a separate piece of cloth. He issued a resealing certificate (Ex.PW8/K). He handed over the case property to HC Naresh Kumar (PW4), who made an entry in Register No.19 at Serial No.1123/211/2010 (Ex.PW4/A) and deposited the case property in Malkhana. He handed over the parcel, NCB-1 Form, copy of FIR, sample seals and seizure memo to HHC Subhash Chand (PW5) with a direction to carry them to SFSL, Junga vide RC No.161/2010 (Ex.PW4/B). HHC Subhash Chand (PW5) deposited all the articles at SFSL, Junga and handed over the receipt to MHC Naresh Kumar on his return. HC Prakash Chand (PW8) prepared a Special Report (Ex.PW2/A) and handed it over to Constable Suresh Kumar with a direction to hand it over to the Deputy Superintendent of Police. Constable Suresh Kumar (PW7) handed over the Special report to Deputy Superintendent of Police (Headquarters) on 28.10.2010. Deputy Superintendent of Police made an endorsement on the Special Report and handed it over to his Reader, HC Baldev Raj (PW2), who made an entry in the

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register at Serial No.1 (Ex.PW2/A) and retained the special report on record. The result of the analysis (Ex.PA) was issued, in which it was mentioned that the exhibit was an abstract of cannabis and a sample of charas containing 28.14% W/W resin in it. The statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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Learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution examined nine witnesses to prove its case. Chuni Lal (PW1) is an independent witness who did not support the prosecution's case. HC Baldev Raj (PW2) was posted as Reader to the Deputy Superintendent of Police, to whom the special report was handed over. Constable Ramel Singh (PW3) carried the rukka from the spot to the Police Station. HC Naresh Kumar (PW4) was working as MHC, with whom the case property was deposited. HHC Subhash Chand (PW5) carried the case property to SFSL, Junga. Constable Raj Kumar (PW6) and Constable Suresh Kumar (PW7) are the official witnesses to the

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recovery. HC Prakash Chand (PW8) investigated the matter. Inspector Anant Ram (PW9) resealed the parcel and prepared the challan.

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The accused, in his statement recorded under Section 313 of Cr.PC denied the prosecution's case in its entirety. He claimed that the witnesses deposed falsely against him because they were official witnesses. A false case was made against him; however, he did not produce any defence evidence.

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Learned Trial Court held that the recovery was made from the P-Cap being carried by the accused, which was not part of the clothing. Therefore, the requirement of Section 50 of the NDPS Act did not apply to the present case. Chuni Lal (PW1) admitted, after he was declared hostile, that the accused was holding the P-Cap, which contained a polythene bag having charas in it. His testimony corroborated the statements of the official witnesses. Minor contradictions in the statements were not sufficient to discard them. The link evidence was complete, and the integrity of the case property was established. The report of analysis showed that the sticks were of the charas containing 28.14% W/W resin in them. Hence, the learned Trial Court convicted and sentenced the accused as aforesaid.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court failed to properly appreciate the material on record. Prosecution failed to comply with the requirements of Sections 42 and 50 of the NDPS Act. The material contradictions in the statements of the witnesses made them suspicious. Chuni Lal (PW1) did not support the prosecution's case. Hari Dass and Satish Pathania were not examined, and an adverse inference should be drawn against the prosecution. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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I have heard Mr Rupinder Singh Minhas, learned counsel representing the appellant/accused, and Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State.

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Mr Rupinder Singh Minhas, learned counsel for the appellant/accused, submitted that the prosecution had failed to comply with the requirements of Sections 42 and 50 of the NDPS Act, which are mandatory. Various contradictions in the statements of the official witnesses made the prosecution's case highly suspect. The independent witnesses did not support the

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prosecution's case, and the other witnesses were not examined. Ramel Singh (PW3) had not deposed anything about the recovery, even though he was present at the time of the recovery. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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Mr Prashant Sen, learned Deputy Advocate General for the respondent/State, submitted that the police had no prior information regarding the transportation of the charas by the accused. The police apprehended the accused based on suspicion arising out of his conduct. The accused was found in possession of the charas. The recovery was effected from the P-Cap, and the learned Trial Court had rightly held that the provision of Section 50 of the NDPS Act does not apply to it. Section 42 applies to the search inside the closed spaces. In the present case, no search was conducted inside the closed spaces, and the provisions of Section 42 of the NDPS Act did not apply to the present case. Hence, he prayed that the present appeal be dismissed.

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

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It is the specific case of the prosecution that the accused was walking on the open road, and he returned after seeing the police. It was laid down by the Hon’ble Supreme Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal 2018 (9) SCC 708, 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 applies 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.

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The appellant was walking along 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 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.”

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Therefore, the submission that the requirement of

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Section 42 was not complied with is not acceptable.

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In the present case, the recovery was effected from the P-cap being carried by the accused in his hand, which was

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not worn by him. It was laid down by the Hon’ble Supreme Court in State of Punjab v. Baljinder Singh, (2019) 10 SCC 473: (2020) 1 SCC (Cri) 22: 2019 SCC OnLine SC 1408, that where the recovery was effected from the bag, briefcase, etc., non-compliance with Section 50 is not fatal. It was observed at page 480:

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13. The law is thus well settled that an illicit article seized from the person during a personal search conducted in violation of the safeguards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance?

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14. At this stage, we may also consider the following observations from the decision of this Court in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746: (2010) 2 SCC (Cri) 475] : (SCC pp. 752-53, para 15)

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“ 15 . The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply while searching the bag, briefcase, etc., carried by the person, and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where a search of a person is involved, and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc., does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of the search of a person only. Secondly, the section speaks of taking the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in

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our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664, the Court has observed: (SCC p. 471, para 16)

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‘ 16 . A bare reading of Section 50 shows that it only applies in the case of a personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra, (1999) 8 SCC 257: 1999 SCC (Cri) 1422 ], State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] and Gurbax Singh v. State of Haryana, (2001) 3 SCC 28: 2001 SCC (Cri) 426 ). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to a search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080 ]. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance.”

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This position was reiterated in Kallu Khan v. State of

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Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, and it was observed at page 204: -

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“16. Simultaneously, the arguments advanced by the appellant regarding non-compliance of Section 50 of the NDPS Act are bereft of any merit because no recovery of contraband from the person of the accused has been made, to which compliance of the provision of Section 50 of the NDPS Act has to follow mandatorily. In the present case, in the search of motorcycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497 that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of

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Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] and State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 : (2020) 1 SCC (Cri) 22 . Considering the facts of this Court, the argument of noncompliance of Section 50 of the NDPS Act advanced by the counsel is hereby repelled.”

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Similar is the judgment in Dayalu Kashyap v. State of

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Chhattisgarh, (2022) 12 SCC 398: 2022 SCC OnLine SC 334, wherein it was observed at page 400:-

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“4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563 , more specifically, SCC para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080 to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned, not being part of the statute, the same could not have been offered to the appellant, and thus, the recovery from him is vitiated. 5. In the conspectus of the facts of the case, we find that the recovery was in a polythene bag which was being carried on a kanwad. The recovery was not in person. The learned counsel seeks to expand the scope of the observa-

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tions made by seeking to contend that if the personal search is vitiated by a violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus cannot be relied upon. We cannot give such an extended view as is sought to be contended by the learned counsel for the appellant.

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16. This judgment was followed in Ranjan Kumar Chadha

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v. State of H.P., 2023 SCC OnLine SC 1262 : AIR 2023 SC 5164, and it was observed:

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“126. As such, there is no direct conflict between SK. Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK. Raju (supra), the contraband was recovered from the bag that the accused was carrying, whereas in Baljinder Singh (supra), the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being “inextricably linked to the person”. Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both the person of the accused as well as the bag are searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra), which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the large Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down good law.

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127. In the facts of the present case, there is no scope for applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the

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case at hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag that he was carrying on his shoulder.

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128. We do not propose to say anything further as regards SK. Raju (supra) as well as Baljinder Singh (supra). We adhere to the principles of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench answering the reference in Pawan Kumar (supra).” 17 . In the present case, the recovery was effected from a

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P-cap being carried by the accused in his hand, and the provisions of Section 50 of the NDPS Act do not apply to the present case; hence, the submission that the prosecution’s case is to be rejected because of the violation of Section 50 of the NDPS Act is not acceptable.

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It is the specific case of the prosecution that the police had given an option to the accused to be searched. The consent memo (Ext.PW1/A) mentions the date of the FIR and Section 20 of the NDPS Act. The FIR number has been written in red ink, clearly suggesting that it was written afterwards. There is nothing on record to show how the police knew about the existence of the charas in the bag. Thus, the mention of Section 20 of the NDPS Act makes it suspicious that the memo was prepared before searching the bag.

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In State of H.P. v. Gyasho Ram, 2024 SCC OnLine HP

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4192, the police had recorded the section in the consent memo. It was laid down by this Court that mentioning the section suggested that the document was prepared after the search. It was observed:

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“20. Now in case, Ext. PW-1/A to Ext. PW-1/C are perused, it would be noticed that the number of the FIR on these documents is conspicuously missing, and the heading thereof reads as “ Fard Sahmati Patar Adhin Dhara 50 NDPS Act, i.e Consent Memo Under Section 50 of the NDPS Act .” This memo, as per the prosecution, was written on the spot and prepared before the recovery of the contraband.

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21. Once the police party had gone for patrolling duty, we really wonder as to how, before the recovery of the contraband, the provisions of Section 50 of the NDPS Act could have been invoked. Even if some suspicion had arisen, how could it be only for the charas and for anything illegal like liquor, gold, forest produce, wild animal body parts, etc., etc.?

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22. In this background, the fact that the document makes a mention of only the NDPS Act can only lead to an inference that the police had prior information regarding the respondents being in possession of contraband punishable under the NDPS Act or that this document was prepared not only before the search of the respondents but after the recovery of the charas.”

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A similar view was taken in State of H.P. v. Manoj

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Bahadur, 2024 SCC OnLine HP 3442, wherein it was observed:

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“16. Apart from the above, the manner in which the prosecution claims to have prepared the document is also not free from doubt. As per the prosecution, search memos Ext.PW-1/A and Ext.PW-1/B were prepared before

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the signing of the rukka; however, it is not understandable as to how these documents bear FIR number and the provisions of law, under which the respondent was stated to have committed the crime.”

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Therefore, the prosecution's case that the documents were prepared before the search of the accused would become highly suspect, and this would affect the credibility of the prosecution’s witnesses who claimed so.

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Chuni Lal (PW1) was associated as an independent person. He stated that he was called by the SHO near the Gasota temple. He went to the spot where he found other police officials. He was told that the police had apprehended the accused near Gasota Temple, and he was carrying a P-cap in his hand, having a polythene bag. The accused was taken to a nearby shop to weigh the contraband, but an electronic weighing scale was not available. The contraband was weighed, and its weight was found to be 400 grams after procuring an electronic weighing machine from the Kariana shop. He was permitted to be cross- examined. He admitted that he was told by the police that the accused had tried to run away after seeing the police. The police apprehended him. He admitted that the police gave an option to the accused to be searched by a Magistrate or a Gazetted Officer. He admitted that the accused opted to be searched by the police. He denied

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that police had offered their search to the accused, and the memo was prepared to this effect. He admitted that police recovered a polythene bag kept inside the P-cap from the accused. He admitted that a polythene bag was opened and black sticks were found, which were confirmed to be charas. He stated in his cross-examination that when he went to the spot, the police showed him the P-cap and told him that the charas was recovered from it.

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The statement of this witness is highly contradictory. He stated initially that he was told by the police about the recovery. When he was permitted to be cross-examined by the learned Public Prosecutor, he stated that the recovery of P-cap was effected in his presence from the accused. He again stated in the cross- examination by learned counsel for the defence that the police showed him the P-cap and told him that the charas was recovered from it. Thus, he has contradicted himself regarding the search of the accused in his presence, and the learned Trial Court erred in relying upon his testimony.

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It is a specific case of the prosecution that the police party consisted of HC Prakash Chand (PW8), Constable Ramel Singh (PW3), Constable Suresh Kumar (PW7) and Constable Raj

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Kumar (PW6). Constable Ramel Singh (PW3) did not say that charas was recovered in his presence. He only deposed about carrying the Rukka from the spot. It was submitted that failure to mention recovery by this witness would make the prosecution's case suspect. This submission cannot be accepted. It was laid down by this Court in Chet Ram v. State of H.P. 2008:HHC:2755 that the prosecution can examine the witnesses regarding one fact when he is a witness to multiple facts, and this does not make the prosecution’s case suspect. It was observed:

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“21. It was argued that even though, according to the testimony of PW-6 LHC Narpat Ram and PW-8 HC Ram Lal, Constable Dhan Dev (PW7) was with them when the appellant was intercepted, and Charas was recovered from his bag, he did not make even a whisper of his being present on the spot and witnessing the search and recovery of Charas. It was argued that his silence was enough to hold that he was not there, and hence, the testimony of PW-8 HC Ram Lal and PW-6 LHC Narpat Ram that recovery was effected in Dhan Dev’s presence cannot be believed, and consequently, their entire version regarding search and seizure becomes unbelievable.

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PW-7 Dhan Dev was examined by the prosecution to prove another fact, viz., he carried one of the two sample parcels from Malkhana to the laboratory of the Chemical Examiner. So, he confined his statement only to this fact. It was known to the defence side that PW-7 Dhan Dev was cited as a witness of search and recovery because copies of the challan and other papers filed therewith had been supplied to the appellant before the start of the trial. Memo. Ext.PW6/C not only records that Dhan Dev was one of the two witnesses of the search and seizure, but it also

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bears his signature as one of the witnesses. Now when it was known to the defence that Dhan Dev was a witness of search and seizure and the prosecution examined him to prove some other fact and not the fact of search and seizure, because one witness, namely PW-6 LHC Narpat Ram had already been examined and Investigating Officer PW-8 HC Ram Lal was also going to be examined to prove the fact, defence could have cross-examined PW-7 Dhan Dev with regard to the search and recovery. No suggestion was put either to PW-6 LHC Narpat Ram or PW-8 HC Ram Lal that Dhan Dev (PW7) was not on the spot, nor was any such suggestion put even to PW-7 Dhan Dev, in the crossexamination.

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In view of the above-stated position, no inference or presumption is required to be drawn against the prosecution for PW-7 Constable Dhan Dev not testifying about the search and seizure, even though he was a witness thereto and had even signed the search and seizure memo as a witness.”

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Thus, in view of this precedent, the prosecution is free

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to examine the witness regarding one fact, even if he has witnessed multiple facts and the prosecution case cannot be doubted simply because he has not deposed about the other facts; however, it has to be taken into consideration that the prosecution had not sought corroboration of the testimonies of Constable Raj Kumar (PW6), Constable Suresh Kumar (PW7) and HC Prakash Chand (PW8) from him.

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Learned Trial Court held that the statements of the prosecution witnesses contradicted each other; however, the contradictions were minor and bound to come with time. The

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contradictions cannot be used to discard the prosecution's case when they do not go to the core of the prosecution's case. There can be no dispute with the proposition of law mentioned by the learned Trial Court in the judgment. However, the learned Trial Court failed to notice the contradictions and analyse whether the contradictions related to the core or the periphery of the prosecution case. Therefore, it becomes essential to enumerate the contradictions and assess their effect on the prosecution's case.

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When the testimonies of the prosecution witnesses are examined, the following contradictions emerge: -

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Constable Raj Kumar (PW6) stated in his crossexamination that the accused ran for about 8-10 yards after seeing the police. Constable Suresh Kumar (PW7) stated in his cross-examination that the accused turned and walked for about 10 to 15 steps. HC Prakash Chand (PW8) stated in his cross-examination that the accused ran for about 10 yards after seeing the police vehicle.

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Constable Raj Kumar (PW6) stated in his crossexamination that the accused was wearing pants and a shirt. Constable Suresh Kumar (PW7) also stated in his cross-examination that the accused was wearing pants and a shirt. HC Prakash Chand (PW8) stated in his crossexamination that the accused was wearing pants, a shirt and a sweater.

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Constable Prakash Chand (PW8) stated in his crossexamination that the police recovered the purse and handkerchief from the possession of the accused during his personal search. Constable Raj Kumar (PW6) stated in his cross-examination that nothing was recovered from the personal search of the accused except one P-cap.

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Constable Suresh Kumar (PW7) stated in his crossexamination that contraband was weighed around 6-6:30 PM. HC Prakash Chand (PW8) stated in his crossexamination that the contraband was weighed at about 6:00 PM.

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The people can give different versions regarding the distance because no person measures the distance, and when asked about the distance, gives their own estimation, which may or may not be correct. Therefore, the contradiction regarding the distance will not be significant.

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The contradiction regarding the time is also not significant because no one remembers the time by looking at the watch, and whenever he is asked about the time, he gives his estimation of time, which may or may not be correct.

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The contradiction regarding the clothes worn by the accused and the articles that were recovered during the personal search of the accused is related to the core of the prosecution case, namely the search. If the witnesses are not sure about the

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articles recovered during the personal search, their testimonies regarding the recovery of the contraband from the accused also cannot be believed. Further, if the witnesses are not sure about what the accused was wearing, their testimonies regarding the apprehension of the accused would become suspect.

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The contradictions in the statements of the official witnesses would assume significance because the official witnesses have tried to demonstrate to the Court that the document regarding the consent was prepared before the search, but this attempt was unsuccessful because of the FIR number mentioned in the consent memo. Thus, the witnesses are shown to lie about the material aspects of the prosecution's case. Chuni Lal, an independent witness, has not supported the prosecution's case, and one of the official witnesses was not examined regarding the recovery. Hence, the contradictions would assume significance and make it unsafe to rely upon the testimonies of the official witnesses.

¶129

It was laid down by the Hon’ble Supreme Court in Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC OnLine SC 756 that the evidence of the prosecution must be tested for its inherent consistency: consistency with the account of

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other witnesses and consistency with undisputed facts. It was observed:

¶133

“21. …. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful, independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence, including the medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

¶134

It was held in David Piper vs Mark Hales 2013 EWHC B1

¶135

(QB) that the Court has to see whether the statement of the witness is consistent or not. It was observed: -

¶136

The guidance about how courts approach this is given in the extra-judicial writing of the late Lord Bingham of Cornhill, approved by the courts, and is apposite. In "The Judge as Juror: The Judicial Determination of Factual Issues ", published in " The Business of Judging ", Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985, p 1-27 , he wrote:

¶137

". . . Faced with a conflict of evidence on an issue substantially affecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties' lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which

¶138

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witness is honest and which dishonest, which reliable and which unreliable?

¶141

The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree.

¶142

The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431. In this, he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full:

¶143

''Credibility' involves wider problems than mere 'demeanour', which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or though an untruthful person,

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telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias, wishful thinking or by too much discussion of it with others? Witnesses, especially those who are emotional and who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes, the memory becomes fainter, and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

¶147

Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue . . ..

¶148

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more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

¶151

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

¶152

(2) the internal consistency of the witness's evidence;

¶153

(3) consistency with what the witness has said or deposed on other occasions;

¶154

(4) the credit of the witness in relation to matters not germane to the litigation;

¶155

(5) the demeanour of the witness.

¶156

The first three of these tests may, in general, be regarded as giving a useful pointer to where the truth lies. If a witness's evidence conflicts with what is clearly shown to have occurred or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable and not dishonest, but the nature of the case may effectively rule out that possibility.

¶157

The fourth test is perhaps more arguable. . . ."

¶158

The following guidance of Lord Goff in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at 2156 is also helpful.

¶159

"And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable, and it is of crucial importance for the Judge to have regard to the contemporary

¶160

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documents and the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1 , when he said at p. 57: -

¶163

"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not, and where there is a conflict of evidence, such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives , and the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth." [emphases added].

¶164

That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable, and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence."

¶165

In that context, he was impressed by a witness described in the following terms.

¶166

"Although, like the other main witnesses, his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable."

¶167

That is so important and so infrequently done."

¶168

This approach to fact-finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 610 , in paragraphs 11, 12, & 14:

¶169

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By the end of the judgment, it is clear that what impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

¶172

There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge, and he or she has to decide whose evidence and how much evidence to accept. This task is not to be carried out merely by reference to the impression that a witness made by giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary, but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant sought or was given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.

¶173

In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present, but the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain

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contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence, and the judge may be able to draw inferences from its absence.

¶177

Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour, which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties' lawyers long after the events also distort the accurate picture, even though they are meant to assist the court.”

¶178

Therefore, contradictions alongwith the other circumstances would make the prosecution's case suspect, and the learned Trial Court erred in holding that the contradictions are not significant and would not affect the prosecution's case.

¶179

Once it is held that the testimonies of the prosecution witnesses regarding the recovery are not satisfactory, the subsequent steps, like resealing the case property, sending it to SFSL, and its analysis at SFSL, would become insignificant because the charas analysed in the laboratory cannot be connected to the accused. Therefore, no advantage can be derived from the analysis of the charas by the laboratory.

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In view of the above, the judgment and order passed by the learned Trial Court cannot be sustained; hence, the present appeal is allowed, and the judgment and order passed by the learned Trial Court are set aside. The appellant/accused is acquitted of the commission of an offence punishable under Section 20 (b) (ii) (B) after extending him a benefit of doubt. The fine, if deposited be refunded to the appellant/accused after the expiry of the period of limitation, in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court of India.

¶183

In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the appellant/accused is directed to furnish personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.

¶187

(Rakesh Kainthla) Judge 19^th December, 2025 (Nikita)

Bal Krishan v. State of Hp

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