Vinod Kumar Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 4080 of 2013 Reserved on: 04.09.2025 Date of Decision: 13.10.2025

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Umesh Kumar ....Petitioner Versus State of Himachal Pradesh ....Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?¹ No.

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For the Petitioner : Mr Kunal Thakur, Advocate, vice Mr Sudhir Bhatnagar, Advocate. For the Respondent/ : Mr.Jitender K. Sharma, Additional State Advocate General.

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Rakesh Kainthla, Judge

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The present revision is directed against the judgment dated 29.07.2013 passed by learned Additional Sessions Judge (II), Mandi, District Mandi, H.P. ( learned Appellate Court) vide which the judgment of conviction dated 23.10.2009 and order of sentence

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dated 24.10.2009, passed by learned Judicial Magistrate First Class,

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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Court No.2, Mandi, District Mandi, H.P. (learned Trial Court) were upheld. (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 revision are that the police presented a challan against the petitioners (accused before the learned Trial Court) for the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.). It was asserted that Inspector Prem Singh (PW-8), ASI Surinder Pal, HC Ludar Singh (PW-2), HC Ram Lal (PW-10), LHC Harbans Singh and Gauri were present at Aut Bazar, District Mandi, H.P. on 12.08.1999. A vehicle bearing registration No. HP33-2436 came from Mandi. The police signalled the driver to stop the vehicle. The police associated Yoginder Singh and Gulab Singh (PW-1) and searched the vehicle. The police recovered forty boxes,each containing twelve pouches of 750 ml of country liquor bearing mark Una No.1,ten boxes each containing 24 pouches of 375 ml of country liquor bearing mark Una No.1,five boxes, each containing fifty pouches of 200 ml of country liquor bearing mark Una No.1, one box containing twelve bottles of 750 ml of Indian Made Foreign Liquor (IMFL) bearing the mark Black Knight Whisky, o ne box containing twelve bottles of

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750 ml of IMFL bearing the mark Bagpiper Whisky, o ne box containing twelve bottles of 750 ml of IMFL bearing the mark Old Monk Rum, one box containing twelve bottles of 750 ml of IMFL bearing mark Diplomat Whisky,one box containing twenty-four bottles of 375 ML of IMFL bearing mark Diplomat Whisky. The driver revealed his name as Umesh Kumar, and the person sitting beside the driver revealed his name as Vinod Kumar (since deceased). The police demanded a permit/license for transporting the bottles, but the accused could not produce any permit/license. Police took out one pouch of 750 ml of country liquor bearing mark Una No. 1,one pouch of 375 ml of country liquor bearing mark Una No.1,one pouch of 200 ml of country liquor bearing mark Una No.1, one bottle of 750 ml of IMFL bearing Mark Bagpiper, one bottle of 350 ml of IMFL bearing the mark Black Knight,one bottle of 750 ml of IMFL bearing the mark Old Monk Rum, one bottle of 750 ml of IMFL bearing the mark Diplomat and one bottle of 750 ml of IMFL bearing the Mark Diplomat as samples for analysis. Each pouch was put in a separate cloth parcel, and each parcel was sealed with seal ‘T’. Each bottle was also sealed with seal ‘T’. Sample seal (Ext. PW-9/A) was taken on a separate piece of cloth, and the seal was handed over to witness Yoginder Singh after its use. Inspector Prem

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Singh (PW-9) investigated the matter. He prepared rukka (Ext.PW-5/B) and sent it to the Police Station, where F.I.R. (Ext.PW-5/A) was registered. Inspector Prem Singh (PW-9) prepared the site plan (Ext.PW9/B) and recorded the statements of the witnesses as per their versions. He handed over the case property to Naresh Kumar (PW-5), who deposited it in the Malkhana, and sent the samples to CTL Kandaghat on 30.08.1999 through Constable Kishore Chand (PW-7) vide RC No. 43/99 for chemical analysis. The result of the analysis (Ext.PA) was issued, stating that each sample of country liquor contained 50% proof of alcohol, and each sample of IMFL contained 75.1% proof of alcohol. The case property was handed over to Karam Chand (PW-3) for auction vide memo (Ext.PW-3/A.). The Photographs (Ext.P1 to Ext.P3), whose negatives are Ext.P-4 to Ext.P P-6 were taken. Statements of prosecution witnesses were recorded as per their version. After 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 for the commission of an offence punishable under Section 61(1) (a) of the Punjab Excise Act ( as applicable to the State of H.P ), to which they pleaded not guilty and claimed to be tried.

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The prosecution examined eleven witnesses to prove its case. Gulab Singh (PW-1), Luder Singh (PW-2), Prem Singh (PW-9), and Ram Lal (PW-10) witnessed the recovery. Karam Chand (PW-3) wasworking Assistant Excise and Taxation Commissioner (AETC), Kullu, H.P., to whom the liquor was handed overfor auction. Naresh Kumar (PW-5) was working as an MHC with whom the case property was deposited. Chet Ram (PW-6) is the witness to the Sapurdari of the liquor. Kishore Chand (PW-7) carried the samples to CTL, Kandaghat. Inspector Vidya Dhar (PW8) prepared the challan. Baldev Singh(PW7) (sic) did not support the prosecution’s case. Vidya Sagar (PW-11) prepared the challan.

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5. The accused, in their statements recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), denied the prosecution’s case in its entirety. They claimed that they were innocent. They stated that they wanted to lead evidence in defence; however, they did not produce any evidence, and their counsel made a statement on 10.09.2009 that no evidence was to be led on behalf of the accused.

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6. Learned Trial Court held that the testimonies of the

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police officials corroborated each other on material particulars. The

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presence of the accused in the vehicle was also established by the testimonies of the police officials. The statements of police officials cannot be discarded simply because they happened to be members of the police force. There was nothing in their crossexaminations to show that they were making false statements. The accused failed to produce any permit/license to transport the liquor. Hence, the learned Trial Court convicted them for the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P. and sentenced each of the convicts as under:-

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Section	Sentence
61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.	To undergo simple imprisonment for one year, pay a fine of ₹2000/- and in case of non- payment of fine, to further undergo simple imprisonment for one month.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Appellate Court. The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the testimonies of the police officials were cogent, reliable and convincing. There was nothing in their crossexamination to make them doubtful. The integrity of the case

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property was established. The samples were found to be country liquor and IMFL after the analysis. The samples were representative and proved that the accused weretransporting IMFL and country liquor. They failed to produce any licence/permit, and they were rightly convicted by the learned Trial Court. Therefore, there was no infirmity in the sentence imposed by the learned Trial Court. Hence, the appeal filed by the accused was dismissed.

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Feeling aggrieved and dissatisfied with the judgments and order passed by the learned Courts below, the accused filed the present revision, asserting that the learned Courts below erred in appreciating the evidence. There are material procedural and substantive illegalities and illegalities in the impugned judgments and order of both the learned Courts below. The samples were taken from a few bottles, and no evidence was presented to prove that the remaining bottles contained liquor. The F.I.R. was registered in the year 1999, and the case remained pending before the learned Trial Court for ten years, which violated the petitioner’s right to a speedy trial. Therefore, it was prayed that the present petition be allowed and the judgments and orders passed by the learned Courts below be set aside.

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I have heard Mr Kunal Thakur, learned vice counsel representing the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent/State.

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Mr Kunal Thakur, learned vice counsel representing the petitioner, submitted that the petitioner is innocent and he was falsely implicated. There are various contradictions in the statements of prosecution witnesses, which made them highly doubtful. The samples were not taken from each bottle, and there is no evidence that all the bottles had liquor in them. The link evidence is missing as the Malkhana register was not produced before the Court; therefore, he prayed that the present revision be allowed and judgments and orders passed by the learned Courts below be set aside. He relied upon the judgment of Hon’ble Supreme Court in State of Rajasthan vs. Gurmail Singh, AIR 2005 SC 1578=(2005) 3 SCC59(2005) (1) SCC (Cri) 641 and Baldev Singh vs State of Haryana 2019 (3) Crimes 73 in support of his submission.

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Mr Jitender K.Sharma, learned Additional Advocate General, for the respondent/State, submitted that the learned Courts below had rightly appreciated the evidence on record. It was duly proved by the statements of prosecution witnesses that the

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accused were transporting a huge quantity of country liquor and IMFL. They could not produce any license/permit to do so. This Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Hence, he prayed that the present petition 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 was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207:-

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It

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is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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This position was reiterated in State of Gujarat v. DilipsinhKishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695:

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“14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

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15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986] , where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13)

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is

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exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

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13 . Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.”

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC

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165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. PuttumanaIllathJathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275] , while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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5 . … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other

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words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

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13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in SanjaysinhRamrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is nonconsideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“ 14 . … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do

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justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.”

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This position was reiterated in Bir Singh v. Mukesh

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Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

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309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

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“16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

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17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

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The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court

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Gulab Singh (PW-1) is an independent person. He stated

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that he and Yoginder Singh were present at Aut Bazaar with the police. A vehicle bearing registration No. HP33-2436 came from

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Mandi. The police signalled the driver to stop the vehicle and checked it. The police recovered fifty-five boxes of country liquor and five boxes of IMFL. Vinod Kumar was driving the vehicle. He had not seen Umesh Kumar on the spot. The accused could not produce any permit. The police took out the samples and seized the liquor. He contradicted and denied his previous statement. He denied that he was making a false statement to save Umesh Kumar. He stated in his cross-examination by learned defence counsel that the vehicle was stopped on the road at the time of his arrival. He did not know when the vehicle had arrived at the spot. The police were already standing near the vehicle. He denied that he was present on the spot, and he deposed falsely against the accused.

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It was submitted that this witness had not supported the prosecution’s case regarding the presence of the petitioner/accused in the vehicle, and this is sufficient to make the prosecution’s case suspect. This submission cannot be accepted. He denied his previous statement recorded by the police, wherein it was mentioned that Umesh Kumar was also sitting in the vehicle.

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Inspector Prem Singh (PW-9) specifically stated in his examination-in-chief that he had recorded the statement of

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Yoginder Singh (Ext.PW-9/C) as per his version. This part of his testimony was not challenged in the cross-examination, and it was not even suggested to him that the witness Gulab Singh (PW-1) had not made any statement to him or that he had recorded the statement of Gulab Singh (PW-1) as per his convenience. Thus, the part of his testimony that Umesh Kumar was not present is contrary to his previous statement and cannot be relied upon. It was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. However, when he is confronted with some portions of the previous statement, his credibility is shaken to that extent, and the rest of the statement can be relied upon. It was observed:

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“52. From the above conspectus, it emerges clearly that even in a criminal prosecution, when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether, as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed regarding a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the

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light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.”

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This Court also took a similar view in Ian Stilman versus.

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State 2002(2) ShimLC 16 wherein it was observed:

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“12. It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex Court. In Jagir Singh v. The State (Delhi Administration), AIR 1975 Supreme Court 1400 , the Apex Court observed:

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"It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony".

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Therefore, the part of his statement which has been

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contradicted by his previous statement recorded by the police cannot be relied upon. However, the part of his statement which is as per the prosecution’s case has to be accepted as correct. It was laid down by the Hon’ble Supreme Court in Selvamani v. State, 2024 SCC OnLine SC 837, that the testimony of a hostile witness is not effaced from the record and the version which is as per the

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prosecution evidence or the defence version can be accepted if corroborated by other evidence on record. It was observed:

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“9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh (1991) 3 SCC 627: 1991 INSC 153 , relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana (1976) 1 SCC 389: 1975 INSC 306, Sri Rabindra Kuamr Dey v. State of Orissa (1976) 4 SCC 233: 1976 INSC 204, Syad Akbar v. State of Karnataka (1980) 1 SCC 30: 1979 INSC 126 , has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.

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10. This Court, in the case of C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567: 2010 INSC 553 , has observed thus:

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“ 81. It is a settled legal proposition that ( Khujji case , SCC p. 635, para 6)

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‘ 6. … the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.’

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82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360], this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be

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relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462 .

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83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof, which are admissible in law, can be used by the prosecution or the defence.”

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Therefore, the testimony of Gulab Singh (PW-1), duly

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contradicted by his previous statement, cannot be relied upon to hold that Umesh Kumar was not present on the spot.

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Gulab Singh (PW-1) made contradictory statements. He stated in his examination-in-chief that the vehicle was intercepted in his presence; however, he changed this version by saying that the vehicle was parked before his arrival, and police were standing near the vehicle. Both these statements cannot stand together, and his testimony that the accused was not present in the vehicle has to be discarded.

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Ludar Singh (PW-2) supported the prosecution’s case in his examination in chief, which is not being reproduced to avoid prolixity and repetition. He stated in his cross-examination that

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the place of the incident was located in the main bazaar. The liquor

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vend is located at a distance of about 100 meters from the spot. He did not know about the origin of the liquor or the name of the owner. He denied that he was making a false statement.

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Learned Courts below had rightly pointed out that nothing was suggested to this witness as to why he would make a false statement against the accused, no motive was attributed to him, and his testimony could not have been discarded simply because he happened to be a police official.

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It was submitted that the case property was not produced before the Court, which was fatal to the prosecution’s case. This submission is not acceptable. The police had filed an application for the auction of the case property, which was allowed by the learned Trial Court on 29.10.1999, and it was held that the bottles were likely to leak. Hence, they were ordered to be sold by way of public auction. This order has attained finality as it was not challenged by anyone. Thus, a valid reason was assigned for the non-production of the case property before the learned Trial Court.

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Inspector Prem Singh (PW-9) also supported the prosecution’s case in his examination-in-chief, which is not being reproduced to avoid prolixity and repetition. He stated in his cross-

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examination that the liquor vend was located at a distance of 100-150 feet. He did not try to find out the name of the owner. He had also not inquired about the name of the person who hired of the vehicle from the owner. He had handed over the investigation to ASI Surinder Pal; therefore, he could not say who was engaged as a driver by the owner. He had not taken the sample from each of the bottles. The investigation was conducted in 2 ½ hours on the spot.

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Nothing was suggested to this witness in his crossexamination as to why he would be making a false statement against the accused. Therefore, the learned Courts below had rightly accepted his testimony.

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Inspector Prem Singh admitted that he had not taken a sample from each bottle. This admission will not help the accused. It was held by the Hon’ble Supreme Court in Vijendrajit Ayodhya Prasad Goel v. State of Bombay , (1953) 1 SCC 434 , that even if one bottle is sent for analysis, the same is sufficient to conclude that all the bottles and drums contained liquor in them. It was observed:

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5. Mr Umrigar next contended that only one bottle out of the articles recovered at the raid was sent for analysis and that it was not proved that all the bottles and the drums that were recovered from the godown contained rectified spirit. He said these might well have contained phenyle, the manufacture of which the company admittedly was carrying on in that

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godown. This argument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches, and which contained the same stuff, for analysis. This argument is therefore rejected.

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Therefore, in view of the binding precedent of the

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Hon’ble Supreme Court, it was not essential to take samples from each bottle.

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Ram Lal (PW-10) also supported the prosecution’s case in his examination-in-chief, which is not being reproduced to avoid repetition. He stated in his cross-examination that it took about 2-3 hours to carry out the investigation. The vehicle was stopped at about 6:30. The rukka was sent to the Police Station after the completion of the investigation. He denied that Umesh Kumar and Vinod Kumar were standing on the road and there was no one in the vehicle. He admitted that the place of the incident is located in Aut Bazaar, where 10 to 50 people are present. He was not aware whether the Investigating Officer had interrogated the owner to find out the name of the driver. He denied that proceedings were conducted in the Police Station or that a false case was made against the accused.

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Nothing was suggested to this witness to show that he was making a false statement or that he had any motive to depose

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falsely against the accused. Hence, the learned Courts below had rightly relied upon the testimony of this witness.

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It was submitted that there is a contradiction in his testimony and the testimonies of other witnesses because he stated that the vehicle was intercepted at 6:30 pm, whereas other witnesses stated that the vehicle was intercepted at 7:00 p.m. This submission will not help the accused. Learned Courts below had rightly noticed that the incident had taken place on 12.08.1999, whereas he made the statement on 08.05.2007 after a lapse of more than seven years. Hence, the contradictions were bound to come due to the failure of memory with time. Further, no person remembers the time by looking at the watch, and whenever a question regarding the time is asked, the person generally gives its estimate of time of occurrence and not the exact time. It was laid down by the Hon’ble Supreme Court in Goverdhan v. State of Chhattisgarh (2025) SCC Online SC 69 that the discrepancies are not sufficient to discard the prosecution case unless they are material. It was observed: -

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“ 51. As we proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the accounts of eyewitnesses.

¶139

23

¶140

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¶141

In Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525 , it was observed as follows:

¶142

“9. Be it noted that the High Court is within its jurisdiction, being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses, unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason thereof should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105] . In para 10 of the Report, this Court observed: (SCC pp. 514-15)

¶143

‘10. 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

¶144

24

¶145

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¶146

as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a 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. 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. Even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention and reproduction differ with individuals.’

¶147

10. In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC 649: 2000 SCC (Cri) 26], this Court observed: (SCC p. 656, para 24)

¶148

‘24. When an eyewitness is examined at length, it is quite possible for him to make some discrepancies. No true witness can escape making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a

¶149

25

¶150

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witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But 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.’

¶152

This Court further observed: (SCC pp. 656-57, paras 25-27)

¶153

‘25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness to confront him during cross-examination. Merely because there is an inconsistency in evidence, it is not sufficient to impair the credit of the witness. No doubt, Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:

¶154

“ 155. Impeaching the credit of a witness .—The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him—

¶155

(1)-(2) ***

¶156

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;”

¶157

26

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¶159

26. A former statement, though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to a contradiction. Only such an inconsistent statement, which is liable to be “contradicted”, would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness, the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only a limited purpose, i.e. to “contradict” the witness.

¶160

27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent, it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri LJ 1231] ).”

¶161

52. Further, this Court also cautioned about attaching too much importance to minor discrepancies of the evidence of the witnesses in BharwadaBhoginbhaiHirjibhai v. State of Gujarat (1983) 3 SCC 217 as follows:

¶162

“5. … We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:

¶163

27

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(1) By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.

¶166

(2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.

¶167

(3) 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.

¶168

(4) 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.

¶169

(5) 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.

¶170

(6) 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.

¶171

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¶173

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the 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—perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.”

¶174

53. To the same effect, it was also observed in Appabhai v. State of Gujarat 1988 Supp SCC 241 as follows:

¶175

“13. … The court, while appreciating the evidence, must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution's case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court, by calling into aid its vast experience of men and matters in different cases, must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such a witness, the proper course is to ignore that fact only unless it goes to the root of the matter to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version, perhaps for fear that their testimony will be rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J. speaking for

¶176

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this Court in Sohrab v. State of M.P. [(1972) 3 SCC 751: 1972 SCC (Cri) 819 ] observed: [SCC p. 756, para 8: SCC (Cri) p. 824, para 8]

¶179

‘8. … This Court has held that falsus in uno, falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or, at any rate, exaggeration, embroidery or embellishments. In most cases, the witnesses, when asked about details, venture to give some answer, not necessarily true or relevant, for fear that their evidence may not be accepted in respect of the main incident which they have witnessed, but that is not to say that their evidence as to the salient features of the case, after cautious scrutiny, cannot be considered….’”

¶180

Therefore, the testimony of this witness cannot be discarded because of a discrepancy in the time.

¶181

The official witnesses have consistently deposed about the interception of the vehicle and the presence of the accused in it. The presumption that an official act is done regularly applies to the acts done by police officials as well. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri.L.J.4254 that the testimonies of the police officials cannot be discarded on the ground that they belong to the police force. It was observed:

¶182

“11. It is a settled proposition of law that the sole testimony of the police official, which, if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the

¶183

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¶185

ground that he is a police official and may be interested in the success of the case. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer, even if such evidence is otherwise trustworthy. The rule of prudence may require more careful scrutiny of their evidence. Wherever the evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction, and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution’s case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force.”

¶186

37. Similar is the judgment in Karamjit Singh versus State,

¶187

AIR 2003 S.C. 3011, wherein it was held:

¶188

“The testimony of police personnel should be treated in the same manner as the testimony of any other witness, and there is no principle of law that without corroboration by independent witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons, and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case, and no principle of general application can be laid down.” (Emphasis supplied)

¶189

38. This position was reiterated in Sathyan v. State of Kerala,

¶190

2023 SCC OnLine SC 986, wherein it was observed:

¶191

22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy, then basing the conviction thereupon cannot be questioned, and the same shall stand on firm ground. This Court

¶192

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¶194

in Pramod Kumar v. State (Govt. of NCT of Delhi) 2013 (6) SCC 588

¶195

13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48], State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595: AIR 2013 SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large shows their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him, but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that the quality of the evidence outweighs the quantity of evidence.

¶196

23. Referring to State (Govt. of NCT of Delhi) v. Sunil 2001 (1) SCC 652 , in Kulwinder Singh v. State of Punjab (2015) 6 SCC 674 , this court held that: —

¶197

“23. … That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record, the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence.”

¶198

24. We must note that in the former it was observed: —

¶199

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¶200

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¶201

“21… 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… If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”

¶202

25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi) 2023 SCC OnLine 784 had observed that the testimonies of police witnesses, as well as pointing out memos, do not stand vitiated due to the absence of independent witnesses.

¶203

26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on “any good reason” which, quite apparently, is missing from the present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW-1 and PW-2, which the courts below have found absolutely to be inspiring in confidence. Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and confirmed by the High Court vide the impugned judgment, cannot be faulted with.”

¶204

39. The learned Trial Court found the testimonies of the

¶205

prosecution witnesses credible. It was laid down by the Hon’ble

¶206

33

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¶208

Supreme Court in Goverdhan (supra) that the Appellate Court should not interfere with the findings regarding the credibility of the witnesses recorded by the learned Trial Court unless there is some illegality in it. It was observed: -

¶209

“83. The trial court, after recording the testimony of the PW-10, and on consideration of the same, found her evidence trustworthy and credible. We see no reason to question the assessment of the credibility of the witness by the Trial Court, which had the advantage of seeing and hearing the witness and all other witnesses. Nothing has been brought to our notice of any serious illegality or breach of fundamental law to warrant taking a different view of the evidence of PW-10.

¶210

In this regard, we may keep in mind the valuable observations made by this Court in Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 , in the following words:

¶211

“28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not be forgotten that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in the appraisal of evidence is erroneous,

¶212

34

¶213

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contrary to well-established principles of law or unreasonable.

¶215

29. …………………………………..

¶216

3 0. In Sara Veeraswami v. Talluri Narayya [(194748) 75 IA 252: AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated [ Quoting from Watt v. Thomas, [1947] 1 All ER 582 , pp. 583 H-584 A.] : (IA p. 255)

¶217

“…but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of the first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing how their evidence is given.”

¶218

In the present case, no illegality was pointed out in the

¶219

statements, and the learned Courts below had rightly accepted the statements of the official witnesses.

¶220

35

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¶222

41. It was submitted that the seal was not produced before

¶223

the Court, and the same is fatal to the prosecution's case. This submission is not acceptable. It was laid down by this Court in Fredrick George v. State of Himachal Pradesh , 2002 SCC OnLine HP 73: 2002 Cri LJ 4600 that there is no requirement to produce the seal before the Court. It was observed at page 4614:

¶224

“62. It is a fact that the seals used for sealing and re-sealing the bulk case property, and the samples have not been produced at the trial. In Manjit Singh's case (2001 (2) Cri LJ (CCR) 74) (supra), while dealing with the effect of nonproduction of the seal, this Court held as under:

¶225

“In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether, by non-production of the seal at the trial, any doubt is raised about the safe custody of the case property or not.”

¶226

63. In view of the above position in law and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the nonproduction of the seals used for sealing and re-sealing of the bulk case property of the samples is also of no help to the accused.”

¶227

36

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¶229

42. It was laid down by the Hon'ble Supreme Court in

¶230

Varinder Kumar Versus State of H.P. 2019 (3) SCALE 50 that failure to produce the seal in the Court is not fatal. It was observed:-

¶231

“6. We have considered the respective submissions. PW10 is stated to have received secret information at 2.45 P.M. on 31.03.1995. He immediately reduced it into writing and sent the same to PW8, Shri Jaipal Singh, Dy. S.P., C.I.D., Shimla. At 3.05 P.M., PW7, Head Constable Surender Kumar, stopped PW5, Naresh Kumar and another independent witness, Jeevan Kumar, travelling together, whereafter the appellant was apprehended at 3.30 P.M. with two Gunny Bags on his Scooter, which contained varying quantities of ‘charas’. PW8, Shri Jaipal Singh, Dy.S.P., C.I.D., Shimla, who had arrived by then, gave notice to the appellant and obtained his consent for carrying out the search. Two samples of 25 gms. Each was taken from the two Gunny Bags and sealed with the seal‘ S’ and given to PW5. PW2, Jaswinder Singh, the Malkhana Head Constable, resealed it with the seal ‘P’. The conclusion of the Trial Court that the seal had not been produced in the Court is, therefore, perverse in view of the two specimen seal impressions having been marked as Exhibits PH and PK. It is not the case of the appellant that the seals were found tampered with in any manner.”

¶232

43. It was specifically held in Varinder Kumar (supra) that

¶233

when the sample seals were produced before the Court, the conclusion of the Trial Court that the seals were produced before the Court was perverse.

¶234

In the present case, the sample seal ‘T’ (Ext.PW9/A) was produced before the Court, in which the seal impression is still

¶235

37

¶236

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¶237

legible. Thus, the Court had the sample seal to compare, and the non-production of the seal before the Court is not material.

¶238

Naresh Kumar (PW-5) stated that the case property and samples were deposited with him. He kept them in safe condition in the Malkhana. He sent the sample to CTL, Kandaghat through Constable Kishore Chand (PW-7) on 30.08.1999, who handed over the receipt on his return. He stated in his cross-examination that only the samples were sealed, and the rest of the case property was not sealed. He denied that no case property was deposited.

¶239

His testimony is corroborated by Constable Kishore Chand (PW-7), who stated that he carried one pouch of Una No.1, one half of Una No.1 and one quarter of Una No.1, one bottle of Old Monk, one bottle of Bagpiper, one bottle of Diplomat and one half of Diplomat, each sealed with seal ‘T’. He deposited them in sealed condition at CTL, Kandaghat. There was no tampering with the case property as long as it remained with him. He denied in his cross-examination that the samples were not sealed.

¶240

The testimonies of these witnesses are duly corroborated by the report of the analysis (Ext.PA), in which it was mentioned that the samples were received through Constable

¶241

38

¶242

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¶243

Kishore Chand. The seals were found intact and unbroken, which were tailed with a specimen impression of the seal sent separately. This report shows the integrity of the case property. 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 prosecution that the case property remained intact is to be accepted as correct. It was observed:

¶244

“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 was 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.”

¶245

Similar is the judgment in Hardeep Singh vs State of Punjab 2008(8) SCC 557, wherein it was held:

¶246

“It has also come to evidence that to date, the parcels of the sample were received by the Chemical Examiner, and 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.”

¶247

In State of Punjab vs Lakhwinder Singh 2010 (4) SCC 402,

¶248

the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in

¶249

39

¶250

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¶251

sending the report to FSL. It was laid down by the Hon’ble Supreme Court that the seals were found to be intact, which would rule out the possibility of tampering. It was observed:

¶252

“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 on 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.

¶253

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’s case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard.

¶254

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

¶255

40

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¶257

50. Similar is the judgment of the Hon'ble Supreme Court in

¶258

Surinder Kumar vs State of Punjab (2020) 2 SCC 563 , wherein it was

¶259

held: -

¶260

“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, the 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.P-13. 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.

¶261

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 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)

¶262

41

¶263

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¶264

Therefore, the submission that the integrity of the case property has not been established cannot be accepted

¶265

It was submitted that Malkhana register was not produced before the Court, and reliance was placed upon Gurmail Singh (supra) in support of this submission. In Gurmail Singh (supra), the High Court acquitted the accused because the Malkhana register was not produced, and no sample seal was sent to the Laboratory. The Hon’ble Supreme Court held that there was no evidence to prove that the seals found were the same, which were put on the sample immediately after seizure. In the present case, the seal impression was sent, which is evident from the report issued by the laboratory. Hence, this judgment will not help the defence.

¶266

In Baldev Singh (supra) , the case property was not produced in the Court, and the Malkhana register did not indicate the deposit of sealed property, and there was no entry of deposit in the Malkhana register. It was held by the Hon’ble Supreme Court that non-production of the case property was fatal to the present case. In the present case, the non-production of the case property is accounted for. This judgment was considered by the Hon’ble

¶267

42

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¶269

Supreme Court in Kailas v. State of Maharashtra, 2025 SCC OnLine SC

¶270

1977, wherein it was observed:-

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31. In the light of the discussion above, in our view, mere non-production of the seized contraband during trial may not be fatal if there is reliable evidence in respect of its seizure, drawing of samples therefrom, and FSL report relating to the sample drawn from the seized material. However, to ensure that no adverse inference is drawn against the prosecution for non-production of the seized contraband, documents prepared in terms of the provisions of Section 52-A, inter alia , evidencing preparation of an inventory of seized contraband and drawing of samples therefrom, would have to be brought on record. Likewise, evidence should be there that the sample drawn from the inventory was sent to FSL in a sealed container/envelope, as per guidelines, and that the seal was found intact at the end of FSL. This is to obviate any doubt regarding the sample being tampered with in transit. Similarly, FSL's report, along with the sample tested by it, is to be placed on record so that there remains no doubt regarding the sample tested.

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54. Thus, the accused cannot be acquitted simply because of

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the non-production of the case property when a satisfactory

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explanation has been provided for non-production.

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55. The result of the analysis shows that samples were found to contain country liquor and IMFL in them. Thus, the learned Courts below had concluded that the accused was transporting country liquor and IMFL in the vehicle. The accused failed to produce any permit/ license. Hence, the accused had contravened the provisions of Section 61(1)(a) of the Punjab Excise Act ( as applicable

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43

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2025:HHC:34450

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to the State of H.P .) and was rightly convicted by the learned Trial Court.

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56. Learned Trial Court had sentenced the accused to undergo simple imprisonment for one year, pay a fine of ₹2000/-.

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The sentence imposed by the learned Trial Court is not excessive, keeping in view the quantity of liquor being transported.Hence, no interference is required with the sentence imposed by the learned Trial Court and affirmed by the learned Appellate Court.

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57. No other point was urged.

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58. Consequently, the present petition fails, and the same is

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dismissed.

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59. The records of the learned Courts below be returned with

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a copy of this judgment for the information.

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(Rakesh Kainthla) Judge