State of Hp Vs Manish Kumar

2025:HHC:42178

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Cr. A. No. 445/2015 Reserved on: 24.11.2025 Decided on: 05.12.2025

State of Himachal Pradesh …..Appellant Versus Manish Kumar ….Respondent ______________________________________________________________

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Coram:

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The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Romesh Verma, Judge.

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Whether approved for reporting?¹

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For the Appellant: Mr. Yashwardhan Chauhan, Sr. Addl. A.G. For the Respondent: Mr. N. K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate.

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Romesh Verma, Judge

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The present appeal arises out of judgment, as passed by the learned Special Judge-II, Chamba, District Chamba, H.P., in Sessions Trial No. 34/2014, dated 20.1.2015, whereby the accused-respondent has been acquitted of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) in case

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1Whether reporters of the local papers may be allowed to see the judgment? Yes.

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FIR No. 66/13, dated 10.12.2013, registered at Police Station, Dalhousie, District Chamba, H.P.

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2 The story of the prosecution, as projected, is that on 10.12.2013, vide Rapat No.11 Ex. PW-6/A HC Kartar Singh alongwith HC Bhagwan Chand, HC Inder Singh (PW-5), HHC Sanjay Kumar (PW-1), Constable Subhash Chand, Constable Surinder Singh (PW-4) proceeded in the vehicle No. HP-73-0918 being driven by Constable Hem Raj towards Goli, Devi Dehra, Gadhiyar side in connection with Nakabandi and traffic checking duty and they accordingly, laid a nakka at about 3.35 P.M. near Chohda Dam road Dhared. When the police party was checking the vehicles, then at about 3.55 P.M. two persons sitting on motor cycle No. HP47-4360 PULSAR came from the Dam side and their motorcycle was intercepted by the police party. When HC Kartar Singh (PW-13) started checking the documents of the motor cycle, then all of a sudden, one person holding a rucksack (Pithu bag) on his shoulder appeared from the bushes. After seeing the police, the said person got perplexed and threw his bag in the bushes at a distance of ten meters and started running towards Dam side. HC Inder Singh (PW-5) and Constable Subhash Chand apprehended the person. HC Kartar Singh (PW-13) and Head Constable Bhagwan Chand picked up the green coloured bag from the bushes and

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when the bag was opened, in which a pale yellow coloured carry bag was found to be containing a black colour hard substance in the form of slides and rolls. As per experience of the investigating team, the recovered substance was found to be cannabis/charas. The person was interrogated in the presence of motor cycle rider Vijay Kumar (PW-3) and pillion rider Sunil Kumar (PW-2), who disclosed his name as Manish Kumar s/o late Sh. Praveen Kumar, resident of VPO Simani, Tehsil Salooni, Police Station Khairi, Distt. Chamba.

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3 The Investigating Officer took out scale from his kit and weighed contraband in the presence of PW-2 and PW-3, which was found to be 1.700 kg. Thereafter, cannabis was put into the same carry bag and sealed in a parcel with three seal impressions of “ ल ”. NCB forms in triplicate Ex. PW-11/A was filled in by the Investigating Officer and impression of the seal “ ल ” was taken on the NCB forms in triplicate. Sample of the seal was taken on a white cloth Ex. PW-2/A in the presence of PW2 and PW3 and they also appended their signatures thereon. Seal after its use was handed over to PW-3 by the Investigating Officer. Case property was taken into possession vide memo Ex. PW-1/A in the presence of PW-3 Vijay Kumar, PW-2 Sunil Kumar and PW1 HHC Sanjay Kumar.

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Thereafter, on suspicion, in order to conduct personal search of the the accused, the I.O. asked the accused whether he wanted to give his search in the presence of Magistrate or any Gazetted officer. However, accused consented to be searched by the police officials vide memo Ex. PW-1/B in the presence of PW1, PW2 and PW3. However, before taking search of the accused, police officials present at the spot also gave their search to the accused and the I.O. bag was also searched by the accused vide memo Ex. PW-1/C. Entire proceedings of investigation were videographed and photographed by PW5 HC Inder Singh. Rukka Ex. PW-13/A was prepared by PW-13 HC Kartar Singh and handed over to Constable PW5 Inder Singh, who deposited the same with MHC, Police Station. On the basis of rukka, FIR Ex. PW-11/B came to be registered against the accused.

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5 Further case of the prosecution is that on 12.12.2013 PW13 HC Kartar Singh handed over special report Ex. PW-9/B to PW1 HHC Sanjay Kumar, who in turn deposited the same with S. P. Chamba. Spot map Ex. PW-13/B was prepared by the I.O. as per the factual position on the spot.

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6 The case property was also sent to SFSL Junga for chemical analysis and on receipt of the SFSL report and after

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completing all codal formalities, final report was filed in the court.

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7 On finding a prima facie case, the accused was charged for offence punishable under Section 20 of the Act, to which he pleaded not guilty and claimed trial.

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8 In order to prove its case, the prosecution examined as many as 13 witnesses in support of its case. Thereafter, the respondent was examined under Section 313 Cr.P.C. in which he denied all set of incriminating evidence led by the prosecution against him and claimed himself to be innocent. However, the respondent did not lead any evidence in his defence.

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9 The learned trial court, after evaluating the oral as well as documentary evidence, acquitted the respondent, as

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aforesaid and feeling dissatisfied, the appellant-State has preferred the instant appeal against acquittal of the respondent/accused.

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10 Mr. Y. W. Chauhan, learned Senior Additional Advocate General has vehemently argued that the findings recorded by the learned Court below are totally perverse and therefore, deserve to be set aside.

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11 On the other hand, Mr. N. K. Thakur, learned Senior

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Advocate duly assisted by Mr. Divya Raj Singh, Advocate, has

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supported the impugned judgment and urged that since the same is based on evidence, it warrants no interference.

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12 We have heard the learned counsel for the parties and have also gone through the records of the case in detail.

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13 Before adverting to the rival contentions of the parties, first of all, we would like to reiterate the principles laid down by the Hon’ble Supreme Court governing the scope of interference by the High Court in an appeal filed by the State challenging the acquittal of the accused.

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14 The Hon’ble Supreme Court in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 has encapsulated legal position governing the field after considering various earlier judgments and held as below :

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“29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.’

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15 Similar reiteration of law can be found in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , Ballu @ Balram @ Balmukund vs. The State of Madhya Pradesh, 2024 (4) Scale 513 and Constable 907 Surendra Singh vs. State of Uttarakhand, (2025) 5 SCC 433

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16 Perusal of the judgments, as passed by the Hon’ble Supreme Court, demonstrates that scope of interference in the case of acquittal is very limited and the same would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

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17 Coming to the factual matrix of the case in order to prove its case, the prosecution examined HC Kartar Singh, who has investigated the matter. HC Kartar Singh, while appearing in the witness box as PW13, deposed that he remained as Investigating Officer in Police Post, Banikhet since

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December 2013. He stated that on 10.12.2013, he alongwith HC Bhagwan Chand, HC Inder Singh, HHC Sanjay Kumar, Constable Subhash Chand, Constable Surinder Singh proceeded in a government vehicle at about 2.50 P.M. to Goli, Chohda in connection with routine traffic checking and nakkabandi duty. At about 2.35 P.M. they laid a nakka at Chohda road at place Ghared. When they were checking the vehicle then a motor cycle bearing No. HP.47-4360, on which two persons were sitting, was intercepted. He further stated that while checking documents of motorcycle, all of a sudden, one person holding a ‘pithu’ bag on his left shoulder appeared from the bushes and on seeing the police threw the bag in the bushes and sped away towards Chohda road. The said person was apprehended with the help of HC Inder Singh and Constable Subhash Chand. PW13 further deposed that he and Constable Bhagwan Chand picked up the ‘Pithu’ bag from the bushes. On being opened, a yellow coloured carry bag was found in the ‘pithu’ which was found to be containing hard black coloured substance in the form of the sticks and balls. After smelling and as per experience, the black coloured hard substance was found to be Charas. PW13 further stated that the accused was interrogated in the presence of independent witnesses and other police officials, who disclosed his name as

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Manish Kumar, son of Praveen Kumar, VPO Simani, P. S. Khairi, Distt. Chamba, HP. The cannabis was measured with the traditional physical balance and it was found to be 1.700 kg. The cannabis was put in the same carry bag and was sealed in a parcel with three seal impressions “ ल ”. Thereafter, PW13 filled in NCB forms in triplicate Ex. PW-11/A on the spot and the sample of the seal was also put on NCB forms in triplicate. The sample of the seal was taken on separate piece of cloth Ex. PW-2/A. The seal after its use was handed over to witness Vijay Kumar. The cannabis alongwith ‘pithu’ bag was taken into possession vide memo Ex. PW-1/A. PW13 further deposed that he informed the accused whether he wanted to be searched before a Magistrate or any Gazetted Officer as he raised suspicion that the accused might be carrying the contraband. The accused gave his consent to be searched by the Investigating Officer vide consent memo Ex. PW-1/B, which was prepared in the presence of PWs Vijay Kumar, Suneel and Sanjay.

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18 PW13 deposed that before taking the search of the accused, he along with other police officials, PWs Vijay and Suneel gave their personal search to the accused vide memo Ex. PW-1/C. He also deposed that no contraband was recovered from the person of the accused. The spot was

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photographed and videographed by HC Inder Singh and the photographs are Ex. PW-5/A-1 to Ex. PW-5/A-3 and CD is Ex. PW-5/B. PW13 also deposed that at about 5.40 P.M. a rukka Ex. PW-13/A was prepared by him and sent to Police Station through Constable Surinder Singh. A copy of rukka Ex. PW-9/A was sent to Superintendent of Police Chamba through HHC Sanjay Kumar. Spot map Ex. PW-13/B was prepared as per the factual position of the spot. Statements of the witnesses were recorded as per their respective version. The accused was arrested at about 7.50 PM and information of his arrest was given to his mother vide memo Ex. PW-1/E. The Pithu bag was handed over to MHC, Police Station. ASI/SHO Krishan Lal resealed the parcel with three seal impressions of 'H'. The sample of the seal Ex. PW-10/E was taken by SHO Krishan Lal on the back of Ex. PW-2/A. Sample of seal ‘H’ was also taken by the SHO on the NCB forms and the seal after its use was handed over by the SHO to MHC Deepak Kumar. PW13 further deposed that on 12.12.2013 special report Ex. PW-9/B of this case was prepared and sent to Superintendent of Police, Chamba for information through HHC Sanjay Kumar. After receiving the chemical report Ex. PX the case file was handed over to Inspector/SHO, Sher Singh for preparation of challan.

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19 In his cross-examination, he deposed that he did not remember how many vehicles were checked at place Ghared. He deposed that it took hardly 3-4 minutes to check the documents of the motor cycle. All the police officials noticed the accused coming from the bushes. The accused person ran to a distance of 15 meters. He deposed that the accused was apprehended by Constable Subhash and HC Inder Singh before throwing the bag. PW13 stated that when the bag was thrown by the accused in the bushes, at that time he did not raise any suspicion regarding contraband. The bag was searched by him. He gave an option to the accused whether he wanted to be searched personally by a Magistrate or by any Gazetted Officer after making a recovery of the cannabis from his bag. PW13 stated that there is no reference of camera in memo Ex. PW1/C. He prepared the four seal impressions “ल” at the spot. He admitted that there is only reference of three seal impressions “ ल ” in the memo Ex. PW-1/A. He also admitted that in rapat Ex. PW-7/A there is only reference of three seal impressions “ ल”. He denied that fourth seal impression was prepared by him in the Police Station. He feigned ignorance as to when Constable Sanjay Kumar reached back at Police Post Banikhet from the S.P. office, Chamba.

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Constable Sanjay Kumar did not again come back to the spot. He stated that the seal was made of led in a square shape. He denied that the accused was not apprehended by him nor any cannabis was recovered from the possession of the accused.

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20 In order to corroborate the prosecution story that the police party on the given date and time noticed the accused holding a rucksack (Pithu bag) on his shoulder coming from the bushes and apprehended him, examined motor cycle rider Vijay Kumar as PW-3 and pillion rider Sunil Kumar as PW-2 being independent witnesses. However, while appearing in the witness box, PW2 and PW3, both of them have categorically stated in their respective depositions that nothing happened in their presence on 10.12.2023. They further deposed that the accused was not apprehended by the police in their presence and nothing was recovered from the bag of the accused.

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21 Even though the learned Public Prosecutor crossexamined PW2 and PW3 as having turned hostile, however nothing fruitful was extracted from their cross-examination against the accused. Rather, in their cross-examination, they denied the case of the prosecution in toto. Even both of them denied their previous statements recorded by the police to be incorrect. When they were put suggestions qua their

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signatures appearing on memos, Ext. PW1/B, Ext. PW1/C, Ext. PW1/A, Ext. PW1/E and Ext. PW1/D, though they admitted the same, but they categorically deposed that their signatures were obtained by the police later on and not on the spot.

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22 Now we advert to the statements of other police officials, who directly or indirectly are related to the investigation conducted in the instant case.

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23 PW4 Constable Surinder Singh deposed that on 10.12.2013, he was associated by HC Kartar Singh in the investigation. HC Kartar Singh handed over to him rukka for registration of a case, which he handed over to MHC Deepak Kumar. He further deposed that MHC Deepak Kumar registered the case and prepared the case file and thereafter he handed over the file to I.O./HC Kartar Singh at Banikhet.

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24 In his cross-examination, he deposed that rukka was handed over to him by HC Kartar Singh at about 5.40 P.M., and thereafter, he handed over the same to MHC at 6.30 P.M. The case file was handed over to him by MHC at about 7.30 P.M. and he handed over the case file to Investigating Officer at about 8.00 P.M.

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25 PW5 HC Inder Singh, deposed that on 10.12.2013 he conducted videography, C.D. thereof is Ext. PW5/B and also took photographs of spot, Ext. PW5/A-1 to Ext. PW5/A-3.

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26 In his cross-examination, he admitted that no date and month is mentioned in the photographs, Ext. PW5/A-1 to PW5/A-3. He stated that the photographs were developed in a private lab at Dalhousie. He further stated that he did not obtain any bill from the said lab.

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27 PW6 HHC Pritam Chand deposed that he remained posted as M.C. in Police Post Banikhet from the year 2012. He stated that nakal rapat No.11, Ext. PW6/A was recorded by MHC Kusum Lata on 10.12.2013.

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28 PW7 LHC Suraksha stated that she recorded GD entry No. 39/A and 40A, which as per the record are correct. He stated that nakal rapats, Ext.PW7/A and Ext. PW7/B bear her signatures.

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29 PW8 HHC Amrik Singh deposed that on 12.12.2013 MHC Deepak Kumar had handed over to him one cloth parcel containing 1.700 Grams cannabis, sealed with seal impression “ल” (three in number) and H (three in number) alongwith seal impressions, NCB forms in triplicate vide RC No 94/13, dated 12.12.2013 and a docket pertaining to this case for depositing the same at SFSL Junga. On 13.12.2013 he deposited the

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aforesaid articles at SFSL Junga and after depositing the same RC was handed over to MHC. He deposed that so long the case property remained with him, the same was not tampered with.

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30 PW9 Constable Rajesh Kumar, deposed that he remained posted as Assistant Reader to S. P. Chamba from the year 2011. On 11.12.2013 Addl. S. P. Chamba Shri Kulwant Singh gave him a copy of rukka Ex. PW-9/A, which he entered in receipt register vide No.20901/VD/13, dated 11.12.2013. On 12.12.2013 Addl. S. P. Sh. Kulwant Singh also handed over him special report of this case Ex. PW-9/B.

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31 PW10 HC Deepak Kumar, deposed that on 10.12.2013 at about 10.10 PM HC Kartar Singh, I.O. P.P. Banikhet produced one cloth parcel containing 1.700 kg cannabis, sealed with seal impression “ल” (three in number) alongwith seal impression and NCB-forms in triplicate before ASI Krishan Lal for resealing the same. The ASI resealed the same parcel with seal impression H (three in number). He also affixed the seal impression on NCB forms and filled the NCB forms in triplicate. To this effect memo Ex. PW-10/A was prepared by ASI Krishan Kumar, which bears his signatures in red circle 'A' as witness. PW10 further deposed that after resealing the parcel ASI Krishan Kumar deposited the sealed parcel alongwith NCB forms and seal impression with him at

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about 10.30 PM. The case property was entered in Malkhana register at Sr. No.121. The extract of Malkhana register is Ex. PW-10/B which is true and correct as per the original brought by him in the Court. He stated that on 12.12.2013 the sealed parcel alongwith seal impression, NCB forms in triplicate, copy of FIR, copy of seizure memo and other documents pertaining to this case were sent to SFSL, Junga (Shimla), HP vide RC No. 94/13, Ex. PW-10/C. Seal impression ‘H’ was taken on a piece of cloth, Ex. PW-10/E. After depositing the same, the RC was deposited with him by HHC Amrik Singh.

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32 In his cross-examination, he denied that neither resealing was done by ASI Krishan Chand in his presence nor case property was deposited by ASI Krishan Chand with him. 33 PW11 ASI Krishan Lal deposed that he remained posted as I.O. in Police Station Dalhousie from the years 2012 to 2014. On 10.12.2013 at about 10.10 P.M., HC Kartar Singh produced one cloth parcel containing 1.700 kg cannabis, which was sealed with seal impression “ ल ”. (three in number) for resealing. PW11 resealed the said parcel in the presence of HC Deepak Kumar. He also affixed the seal impression “ल” on NCB forms in triplicate. He also filled in the relevant columns of NCB forms in triplicate. The seal impression was taken

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separately on a piece of cloth, Ex PW-10/E. He prepared resealing memo Ex. PW-10/A. After resealing the above mentioned parcel alongwith seal impressions, NCB forms in triplicate and other documents were deposited with MHC Deepak Kumar at about 10.30 PM. PW11 further deposed that on the basis of rukka he recorded FIR, Ex.PW-11/B. He also made endorsement on rukka, Ex. PW-11/C.

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34 In his cross-examination, he deposed that Constable Surinder Kumar brought rukka to him at about 6.30 PM. According to PW11, it took about 15 to 20 minutes to register the case FIR. Thereafter, the case file was handed over to Constable Surinder Kumar at about 6.45 PM. He admitted the suggestion that columns No. 9 and 11 of NCB forms in triplicate Ex. PW-11/A are blank. He also admitted that his statement under Section 161 Cr. P. C. was not recorded by the I.O.

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35 PW12 Inspector Sher Singh, deposed that after the completion of investigation he prepared the challan and presented the same in the Court.

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36 To bring home the guilt of the accused, the aforesaid, in entirety, is oral as documentary evidence led by the prosecution. After referring the testimonies of official witnesses and independent witnesses, at length, it would be

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seen that according to the prosecution story, the instant case has been projected as a case of chance recovery of contraband by the police team, present at the spot, on the given date and time, however to corroborate the version of the official witnesses, as referred above, the independent witnesses i.e. PW2 and PW3 have not supported the case of the prosecution at all. It has come on record that PW2 has categorically stated in his statement that nothing happened in his presence on 10.12.2013. According to him, the accused was not apprehended by the police in his presence and even nothing was recovered from the bag of the accused which he had thrown into the bushes.

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37 The Public Prosecutor cross-examined PW2 at length however, he after hearing portion A to A of his previous statement, Mark-A, denied the same to be incorrect. Rather, he deposed that he did not make such statement before the police. He also denied the suggestion that on 10.12.2013, he alongwith Vijay Kumar were going towards Chohda on a motor cycle at about 3.55 P.M. He denied that when the police stopped their motor cycle for checking of documents, in the mean time the accused appeared on the spot carrying rucksack (Pithu) on his right shoulder. He further denied that after seeing the police, the accused threw the Pithu into the bushes and tried to run

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away from the spot. He also denied the suggestion that the police officials apprehended the accused in their presence and the bag was taken out from the bushes which was thrown by the accused. He also denied that rucksack (Pithu) was opened in his presence and an another carry bag light blue colour was recovered in that bag. He also denied that hard substance in black colour in the shape of balls and sticks was recovered and found to be cannabis. He denied that the police asked the name from the accused in his presence who disclosed his name as Manish Kumar s/o Sh. Praveen Kumar r/o village Simani. He denied that the weighing machine and weights were taken out from the I.O. kit and the recovered charas was weighed, which was found to be 1.700 kgs. He also heard portion B to B of his statement Mark –A, which according to him was incorrect. He specifically deposed that he had not made such statement before the police. He deposed that memos Ex. PW-1/B, PW1/C, PW-1/A, PW-1/E and PW-1/D bear his signatures in red circle 'A' but his signatures were obtained by the police later on and not on the spot. Though PW2 was subjected to crossexamination by the Public Prosecutor, however nothing fruitful could be extracted to establish the case of the prosecution.

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38 To the similar effect is the statement of PW3, another independent eye witness, who stated that nothing

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happened in his presence on 10.12.2013. The accused was not apprehended by the police in his presence and nothing was recovered from the bag of the accused which he had thrown into the bushes.

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39 PW3 was subjected to cross-examination, however Public Prosecutor could not extract any incriminating evidence against the accused. Same and similar suggestions were put to PW3 as in the cross-examination of PW2, and he denied all the suggestions put by the Public Prosecutor and specifically deposed that though memos Ex. PW-1/B, PW-1/C, PW-1/A, PW-1/E and PW-1/D bear his signatures in red circle 'A' but his signatures were obtained by the police later on and not on the spot.

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40 It would be evident from the aforesaid statements of PW2 and PW3 that the independent witnesses, who have been associated, have not at all supported the case of the prosecution. This assumes importance because it is not a case of prior information, rather it is a case of chance recovery, as observed above, therefore, having turned hostile, testimonies of PW2 and PW3 have shattered the case of the prosecution as they have denied the case of the prosecution, in toto, while deposing that nothing had happened in their presence. The independent witnesses come up with story which creates

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gaping hole in the prosecution story about involvement of the accused and seizure of contraband. The case of the prosecution collapses in view of their testimonies.

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41 Though, the Hon’ble Supreme Court in various judgments have held that in case independent witnesses turn hostile in that event, evidence of the official witnesses can be looked into but with certain degree of care and caution.

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42 It is also well settled that minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect core of the prosecution case, should not be made a ground on which evidence can be rejected in its entirety. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of witnesses can be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. However, the omissions, which amount to contradictions in material particulars, that go to the root of the case, materially affect the trial or core of the prosecution’s case, render the testimonies of the official witnesses liable to be discredited.

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43 After all what matters is case of the prosecution regarding its substratum which is regarding the interception of the accused and thereafter recovery of the contraband, qua which, as observed above, the independent witnesses have discarded the case of the prosecution.

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44 Now, adverting to the fact situation in the present case, perusal of statement of PW13 would show that he stated that seal “ल” was made of led in a square shape, in contrast from the testimony of PW1 HHC Sanjay Kumar, who was asked the same question and he deposed that the seal impression “ल” was made of wood and was in the shape of square. Therefore, there is major contradiction in the statements of PW1 and PW13, with regard to make of seal.

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45 Coming to rapat, Ext. PW7/A dated 10.12.2013, perusal thereof would reveal that three samples of seal “ल” were handed over to PW11 ASI Krishan Lal. Ext. PW7/B is copy of another rapat recorded on 10.12.2013, which shows that three samples of seal “ल” and three samples of sale ‘H’ were deposited with MHC Deepak Kumar. Even PW13 has admitted in his cross-examination that in memo, Ext.PW1/A there is only reference of three seal impressions of “ल”, however he deposed in his statement that he had prepared four seal

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impressions “ल” at the spot. In case, he prepared four seal impressions of “ल” then why he chose to write in rapat Ext. PW1/A and Ext. PW7/A & Ext. PW7/B three seal impression.

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46 Record further reveals that one seal impression was given to the accused, second seal impression was in the police file and third seal impression was in the Court file. If that is so, then the question arises, which seal impression was sent to SFSL Junga. It creates serious doubt in the story as projected by the prosecution.

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47 Statement of PW1 further shows that in the crossexamination, he has categorically admitted that he was not present at the spot from 5.40 P.M. on 10.12.2013 to 11.12.2013 morning. According to him, he left the spot at about 5.40 P.M. with copy of rukka and he did not visit the spot till next morning.

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48 It is the case of the prosecution that the accused was arrested at about 7.50 P.M. on 10.12.2013 and memo of information of arrest, Ext. PW1/E was prepared at 7.50 P.M. on the same day. However, surprisingly, on being scanned, the memo of information of arrest, Ext. PW1/E, creates dent in the prosecution story to allegedly link the accused with

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commission of offence. This memo shows signature of PW1 Sanjay Kumar.

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49 In case statement of PW1 is taken to be correct, who claimed to be one of the official witnesses and witnessed the proceedings at the spot right from nabbing the accused upto the time when he left the spot with a copy of rukka to be delivered to S.P. Chamba, as observed above, it would be noticed that he left the spot at about 5.40 P.M. on 10.12.2013 and was not present at the spot from 5.40 P.M. on 10.12.2013 till morning of 11.12.2013. Then, it collapses the prosecution case as it is difficult to presume how his presence is shown at the spot in memo of information of arrest, Ext. PW7/E at 7.50 P.M. on 10.12.2013. The prosecution has failed to offer/assign any explanation/reason how this PW1 signed memo Ext. PW7/E on the spot at 7.50 P.M when he, as per his own admission was not present on the spot at 7.50 P.M. and having failed to do so, the prosecution case comes under suspicion.

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50 Apart from above, perusal of NCB forms, Ext. PW11/A shows that case FIR No. 66/13 dated 10.12.2013 was registered under Section 20 of the Act, whereas the case of the prosecution is that NCB form was prepared on the spot, however, insertion of case FIR on the NCB form creates doubt

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and it gives an impression that it was prepared later on. The prosecution has failed to answer this contradiction which goes to the root of the present case.

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51 The prosecution in order to strengthen its case examined PW5 to prove photographs, Ext. PW5/A-1 to Ext. PW5/A-3 and CD, Ext. PW5/B. According to PW5, he joined the investigation and took photographs of the spot and conducted videography on the spot, however in his cross-examination, he admitted that there is no date and month mentioned in photographs, Ext. PW5/A-1 to Ext. PW5/A-3. He also deposed that photographs were developed in a private lab at Dalhousie, however he has not obtained any bill from the lab nor placed the same on case file. All the negatives of the photographs were also not got exhibited by the prosecution nor the person, who developed the photographs, Ext. PW5/A-1 to Ext. PW5/A-3 was examined in the Court. Therefore, photographs cannot be looked into since same were not proved in accordance with law. 52 The prosecution exhibited jamatalashi memos, as Ext. PW1/C & Ext. PW1/D. Perusal of Ext. PW1/C would show that the independent witnesses, PW2 and PW3 gave their personal search to the accused. This memo further says that in the I.O. kit there were physical scales, lak, candle, needle, thread, seal, white cloth, paper and pen etc. However, this

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memo neither shows presence of camera nor any NCB form in the I.O. kit. Even PW1 HHC Sanjay Kumar admitted in his cross-examination that there is no reference of camera in Ext. PW1/C. Having failed to establish on record how and from where camera and NCB forms were with the I.O. on the spot, creates material doubt in the prosecution story.

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53 Perusal of statement of PW11 ASI Krishan Lal with whom I.O. HC Kartar Singh is stated to have produced one cloth parcel containing 1.700 kgs cannabis, sealed with seal impression “ ल ”(three in number) for resealing, who in turn resealed the said parcel in the presence of HC Deepak Kumar, affixed the seal impression “ल” on NCB forms in triplicate, filled in the relevant columns of NCB forms in triplicate, would go to show that he has specifically admitted the suggestion that columns No. 9 and 11 of NCB forms in triplicate Ex. PW-11/A were blank and his statement under Section 161 Cr. P. C. was not recorded by the I.O. If the I.O. did not record the statement of PW11 ASI Krishan Lal, then the defence counsel was not in a position to confront this witness on behalf of the accused, which certainly is prejudicial to the accused.

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54 There are material inconsistencies and

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contradictions in the statements of official witnesses qua the

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proceedings conducted in the case which have not been explained by the prosecution and their testimonies being full of infirmities and exaggerations do go to the core of the prosecution, as a result of which, learned Special Judge had no other option, but to acquit the accused of the charge under Section 20 of the Act.

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55 It is well settled that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be such that they exclude every possible hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused.

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56 Equally settled is law that the suspicion, howsoever strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the

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ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.

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57 In the present case, the State/appellant has failed to point out an error in the judgment passed by the learned court below. The learned court below has rightly appreciated the oral as well as documentary evidence placed on record after thrashing the entire evidence and material for the determination of the case and thus has rightly acquitted the respondent of the charge framed against him. Therefore, we are of the considered opinion that the learned Court below has rightly passed the judgment of acquittal in favour of the respondent. The view taken by the learned trial court is plausible as well as possible one.

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58 Consequently, the instant appeal is dismissed, so

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also the pending application(s), if any.

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accused/respondent are discharged.

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60 Records be sent down.

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(pankaj)

State of Hp v. Manish Kumar

Case brief

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State of Hp v. Manish Kumar

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