Gian Chand Vs State of Hp

The present appeal is directed against the judgment of conviction dated 25.09.2023 and order of sentence dated 26.09.2023 passed by learned Special Judge, Sundernagar, District Mandi, HP (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted of commission of an offence punishable under Section 20 of

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

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Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for five years, pay a fine of ₹ 50,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months for the commission of aforesaid offence. (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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2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that SI/SHO Bheem Sen (PW11), HC-Vinod Kumar, HHC-Deepak Raj (PW3), HHC-Khem Raj (PW4), Constable-Suresh Kumar (PW10) were going towards Naulakha in their official vehicle bearing registration No.HP-31-B-0190, via Dhanotu on 23.01.2016. When they reached near Sananghat at about 5:00 PM, they saw the accused, carrying a backpack on his right shoulder, coming towards the Sundernagar Bus Stand. He returned after seeing the police vehicle and started walking briskly. SI/SHO Bheem Sen became suspicious that the accused might be carrying some stolen articles. He asked the driver to stop the vehicle and

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apprehended the accused. The place was lonely and deserted, and no independent witness was available; hence, HHC Deepak Raj and Constable Suresh Kumar were associated as witnesses. The accused revealed his name as Gian Chand on inquiry. The police checked the backpack and found a packet wrapped with a cellotape concealed between the clothes. The police checked the packet and found charas in it. The charas was weighed and its weight was found to be 340 grams. The charas was put in the packet. The packet was wrapped with cello tape in the same manner in which it was recovered. Cello tape was put in a cloth parcel, and the parcel was sealed with six impressions of seal ‘T’. The parcel was marked as ‘A1’. The backpack contained one t- shirt and one towel. These were put in the backpack. The backpack was put in a cloth parcel and the parcel was sealed with eight impressions of the seal ‘T’. The parcel was marked as ‘A2’. The NCB-1 form (Ext. P9/PW8) was filled in triplicate. The seal impression was put on the NCB-I form. Specimen seal impression (Ex. P3/PW3) was taken on a separate piece of cloth, and the seal was handed over to HHC-Deepak Raj after its use. The photographs of the proceedings (Ex. P11/PW11 to Ex.P16/PW11) were taken. The parcels (A-1 and A-2), NCB-I form and sample

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seal were seized vide memo (Ex. P4/PW3). Ruqa (Ex.P17/PW11) was prepared, and it was sent to the police station, where FIR (Ex.P10/PW10) was registered. SI/SHO Bheem Sen conducted the investigation. He prepared the spot map (Ex.P18/PW11) as per the spot position and recorded the statement of witnesses, as per their version. He handed over the case property to MHC-Gopal Singh (PW8), who made an entry at Sr. No.142 (Ex.PW9/PW8) in the Malkhana Register and kept the case property at Malkhana. He handed over the cloth parcel, sealed with six seals of seal impression ‘T’, NCB-I Form in triplicate, sample seal ‘T’, copy of FIR and seizure memo to HHC/Hardev Singh (PW7) with a direction to carry them to FSL, Junga vide RC No.7/16 (Ex.P8/PW7). HHC-Hardev Singh deposited the case property in the FSL Junga and handed over the receipt to MHC-Gopal Singh on his return. Bheem Sen (PW11) prepared the special report (Ex.P1/PW1) and handed it over to Constable-Samad Akhtar on 24.01.2016 with a direction to hand it over to Sub-Divisional Police Officer (SDPO), Sundernagar. He handed over the Special Report (Ex. P1/PW1) to Kulbhushan Verma (PW2) on 24.01.2016, at 6:00 PM. Kulbhushan Verma made the endorsement on the special report and handed it over to his Reader-Sant Ram (PW1),

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on the next day. Sant Ram made an entry in the Special Report Register (EX.P2/PW1) and retained the special report on record. The result of the analysis (Ex. P19/PW11) was issued, stating that the exhibit was an extract of cannabis and a sample of charas. The statements of witnesses were recorded, as per their version and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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

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The prosecution examined 11 witnesses to prove its case. HASI-Sant Ram (PW1) was posted as Assistant Reader to Kulbhushan Verma (PW2), SDPO Sundernagar, to whom the Special Report was handed over. Deepak Raj (PW3), Khem Raj (PW4) and Suresh Kumar (PW10) are the witnesses to the recovery. Constable Sudeep Jamwal (PW5) proved the entry in the daily diary. HC-Samad Akhtar (PW6) carried the special report to SDPO Sundernagar. HASI-Hardev Singh (PW7) carried the case property to FSL Junga. Gopal Singh (PW8) was working as MHC,

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with whom the case property was deposited. ASI Satya Prakash (PW9) proved the FIR. Bheem Sen (PW11) conducted the investigation.

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The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution’s case in its entirety. He claimed that he was innocent; however, he did not lead any defence evidence.

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The learned Trial Court held that the testimonies of the Police Officials corroborated each other. There was no material contradiction in the testimonies of police officials. The minor contradictions in the statements were not sufficient to discard the prosecution's case, since the witnesses were examined after a lapse of 6 years from the date of the incident. The recovery was effected from the backpack, and there was no requirement to comply with the provisions of Section 50 of the NDPS Act. The accused failed to provide any reason why the police should have falsely implicated him. The integrity of the case property was established. It was confirmed to be charas after the analysis; therefore, the accused was convicted and sentenced as aforesaid.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed the present appeal, asserting that the learned Trial Court erred in appreciating the evidence. The Investigating Officer failed to comply with the requirements of Sections 41, 42, 43 and 50 of the NDPS Act. Deepak Raj (PW3) specifically stated that the Investigating Officer did not make any effort to call the independent person. This was corroborated by HC-Khem Raj (PW4) and by Bheem Sen (PW11). The witnesses stated that the Charas was recovered in the shape of a ball, whereas the report of analysis shows that the charas was in the shape of balls. The statements of prosecution witnesses contradicted each other regarding the preparation of the documents. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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I have heard Mr. Sunil Kumar Banyal, learned counsel for the appellant and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State.

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Mr. Sunil Kumar Banyal, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in

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convicting and sentencing the accused. There were various contradictions in the statements of the prosecution witnesses, which were ignored by the learned Trial Court. No effort was made to join any independent person, which makes the prosecution’s case highly suspect. The charas was stated to be in the form of a ball, whereas the report of analysis shows that the balls were analysed. Therefore, the case property is not connected to the appellant. The prosecution failed to comply with the requirements of Sections 42 and 50 of the NDPS Act, which are mandatory. The case property was not resealed, and there is a violation of Section 55 of the NDPS Act. The police did not make any effort to join the independent witnesses, which made the recovery doubtful; therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He relied upon the judgment of this Court in the State of HP Vs. Prem Bahadur Rawat, 2024:HHC:5946, in support of his submission.

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Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the incident occurred in the year 2016, and the witnesses deposed before the Court in the year 2022. Thus, there was a gap of nearly 6 years

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between the incident and the examination of the witnesses. The minor contradictions are bound to come in the statements due to the lapse of time. The statements of prosecution witnesses should not be discarded simply because they are police officials. It was a case of chance recovery, and it was not possible to associate independent witnesses. Learned Trial Court had rightly appreciated the evidence; therefore, he prayed that the present appeal be dismissed.

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

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HASI-Deepak Raj (PW3) admitted in his crossexamination that the Investigating Officer did not make any effort to call an independent witness, nor was any police official sent in search of independent witnesses. Similarly, HHC-Khem Raj (PW4) stated in his cross-examination that the Investigating Officer did not send any police official in search of independent witnesses. Suresh Kumar (PW10) stated in his cross-examination that he was not aware whether the Investigating Officer had sent any police official in search of an independent witness. Bheem Sen (PW11) admitted in his cross-examination that he had not

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sent any police official in search of the independent witnesses. It was submitted that failure to join independent witnesses is fatal, and the prosecution's case is to be discarded due to the failure to join independent witnesses. This submission is not acceptable. The statements of the prosecution witnesses show that the police party proceeded in the vehicle when they noticed the accused carrying the backpack on his shoulder. He returned after seeing the police and started walking briskly. This led to the suspicion; hence, it was a case of chance recovery.

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The term chance recovery was explained by the Hon’ble Supreme Court in State of H.P. v. Sunil Kumar, (2014) 4 SCC 780: (2014) 2 SCC (Cri) 449: 2014 SCC OnLine SC 205, and it was held that chance recovery means a recovery made by chance or by accident or unexpectedly. When the police were not looking for the drugs nor expected to find the drugs, any recovery is a chance recovery. A positive suspicion of the police official is not sufficient to show that it was not a case of chance recovery. It was observed at page 784:

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“13. The expression “chance recovery” has not been defined anywhere, and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State [(1998) 8 SCC 655:

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1999 SCC (Cri) 79], this Court considered a chance recovery as one when a police officer “stumbles on” narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat [(2004) 13 SCC 608: (2006) 1 SCC (Cri) 508], the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a “chance recovery”.

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14. Applying this to the facts of the present appeal, it is clear that the police officers were looking for passengers who were travelling ticketless and nothing more. They accidentally or unexpectedly came across drugs carried by a passenger. This can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody.

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15. It is not possible to accept the view of the High Court that since the police officers conducted a random search and had a “positive suspicion” that Sunil Kumar was carrying contraband, the recovery of charas from his person was not a chance recovery. The recovery of contraband may not have been unexpected, but the recovery of charas certainly was unexpected, notwithstanding the submission that drugs are easily available in the Chamba area. The police officers had no reason to believe that Sunil Kumar was carrying any drugs, and indeed that is also not the case set up in this appeal. It was plainly a chance or accidental, or unexpected recovery of charas—Sunil Kumar could well have been carrying any other contraband, such as smuggled gold, stolen property or an illegal firearm or even some other drug.

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In the present case, the police had no prior information about the transportation of charas by the accused.

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They became suspicious of the conduct of the accused, and the present case will fall within the meaning of chance recovery.

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It was laid down by the Hon'ble Supreme Court in Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the

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police party is under no obligation to join independent witnesses while going on patrolling duty, and the association of any person after effecting the recovery would be meaningless. It was observed:

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

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In similar circumstances, it was laid down by this

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

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

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“(A)appellant was intercepted, and a search of his bag was conducted on suspicion, when he turned back and tried to flee, on seeing the police. Police officials did not have any

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prior information, nor did they have any reason to believe that he was carrying any contraband. They overpowered him when he tried to run away and suspected that he might be carrying some contraband in his bag. Therefore, the bag was searched, and Charas was recovered. After the recovery of Charas, there was hardly any need to associate any person from the nearby village because there remained nothing to be witnessed .

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

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

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

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“(C) Need for independent witnesses

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

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This position was reiterated in Rizwan Khan v. State of

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

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

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

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

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examine any independent witness would not necessarily lead to a conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved merely on account of their official status.

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

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

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Similar is the judgment of this Court in Balwinder

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

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held:-

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

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

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This position was reiterated in Kallu Khan v. State of

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

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was held at page 204: -

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

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A similar view was taken in Kehar Singh v. State of H.P.,

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2024 SCC OnLine HP 2825, wherein it was observed:

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

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

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

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

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

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Xxxx

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

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

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It was submitted that police did not comply with the requirement of Section 42 of the NDPS Act, which is fatal to the prosecution’s case. This submission is not acceptable. The accused was walking on the open road with the backpack, and Section 42 of the NDPS Act does not apply to an open place but only to a closed place. It was laid down by the Hon’ble Supreme Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal 2018 (9) SCC 708, that Section 42 of the NDPS Act does not apply to the search made of a person walking in an open space. It was observed: -

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“12. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only

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

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

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It was submitted that the prosecution had not

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complied with the requirement of Section 50 of the NDPS Act, which vitiated the prosecution's case. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Ranjan Kumar Chadda Vs. State of H.P., 2023 SCC Online SC 1262, that even if the personal search of the accused is conducted, but no recovery is effected during the personal search, there is no requirement to comply with the provisions of Section 50 of the NDPS Act, when the recovery was effected from the bag. In the present case, the recovery was effected from the backpack and

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not from the personal search. Therefore, even if the personal search of the accused was conducted, that is not sufficient to attract the provisions of Section 50 of the NDPS Act.

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Deepak Raj (PW3), Khem Raj (PW4), Suresh Kumar (PW10) and Bheem Sen (PW11) supported the prosecution’s case in their examination-in-chief. Nothing was suggested to these witnesses that they had any enmity with the accused.

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It was submitted that there are various contradictions in the statement of the police officials, which made the prosecution's case doubtful. The following contradictions were highlighted:

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I. Deepak Raj (PW3) stated in his cross-examination that they proceeded from the Police Station at 4:40 PM and reached Naresh Chowk within 5-10 minutes. HHC-Suresh Kumar (PW10), on the other hand, stated in his cross-examination that they reached Dhanotu bridge at about 4:15 PM and Sananghat at 4:40 PM.

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II. Deepak Raj stated in his cross-examination that the accused was apprised of his legal right to be searched before a Gazetted Officer or a Magistrate. His personal search was also conducted on the spot, and

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the consent memo was witnessed by him and Sh. Suresh Kumar. Suresh Kumar (PW10) stated in his cross-examination that the personal search of the accused was not conducted on the spot.

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III. HASI-Deepak Raj (PW3) stated in his crossexamination that the documents were prepared on the bonnet of the vehicle. Suresh Kumar (PW10) stated that the documents were prepared by the Investigating Officer while sitting on the parapet.

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The learned Trial Court had rightly pointed out that the incident had taken place on 23.01.2016 and the witnesses made the statements in the year 2022, after the lapse of more than 6 years from the incident. Therefore, the contradictions were bound to come in the statements of the prosecution witnesses due to the failure of memory with time, and mere contradictions are not sufficient to make the prosecution's case doubtful. It was laid down by the Hon’ble Supreme Court in Goverdhan Vs. 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 account of eyewitnesses.

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

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“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 therefore 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. 51415)

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‘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 as to render it unworthy of belief. Minor discrepancies on trivial

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

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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)

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‘24. When an eyewitness is examined at length, it is quite possible for him to make some discrepancies. No true witness can escape from 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 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

¶122

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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.’

¶124

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

¶125

‘25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting 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:

¶126

“ 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—

¶127

(1)-(2) ***

¶128

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

¶129

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

¶130

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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.

¶132

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] ).”

¶133

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

¶134

“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:

¶135

(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.

¶136

(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,

¶137

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therefore, cannot be expected to be attuned to absorb the details.

¶139

(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.

¶140

(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.

¶141

(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.

¶142

(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.

¶143

(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

¶144

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¶145

sort of psychological defence mechanism activated on the spur of the moment.”

¶146

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

¶147

“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 being 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 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]

¶148

‘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, embroideries 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

¶149

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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….’”

¶151

Hence, the testimonies of the witnesses have to be

¶152

examined to determine whether the contradictions are real or apparent, material or minor.

¶153

The contradiction regarding the time is not material because no person remembers the time by looking at the watch. This position was laid down in Bharwada Bhoginbhai (Supra) . Since different people have different perceptions of time, therefore, any discrepancy in the time cannot be used to discard the prosecution's case.

¶154

The contradiction regarding apprising the accused of his legal right to search is also not material because no recovery was effected from the personal search of the accused in the present case; therefore, this contradiction cannot be used to discard the prosecution's case.

¶155

The contradiction regarding the place where the documents were prepared is also not significant, keeping in view the time elapsed between the incident and the date of deposition. Further, the accused never claimed that the documents were not

¶156

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prepared on the spot, and these were prepared in the police station. He simply denied the prosecution's case; hence, the contradiction regarding the place of preparing the documents will not make the prosecution's case doubtful.

¶158

HHC-Khem Raj stated that the Investigating Officer prepared the documents in natural daylight till he remained on the spot. Bheem Sen (PW11) stated in his cross-examination that they remained on the spot for 2 hours and 15 minutes, and the documents were prepared in the daylight. It was submitted that the sun sets early in January, and it was not possible to prepare the documents in the daylight at about 7:00 PM. This submission is not acceptable. The witnesses consistently stated that the documents were prepared in natural daylight. The estimation of time given by the witnesses for remaining on the spot can be different, as noticed in Bharwada Bhoginbhai (supra), and will not make their statements doubtful. Further, there is no positive evidence as to when the sun had set on the date of the incident, and it is difficult to discard the positive statements of the police officials on the ground that the sun sets early in winter.

¶159

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¶160

The learned Trial Court found the testimonies of the prosecution witnesses credible. It was laid down by the Hon’ble 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: -

¶161

“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 about 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.

¶162

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:

¶163

“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 forget 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

¶164

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of evidence is erroneous, contrary to wellestablished principles of law or unreasonable.

¶166

29. …………………………………..

¶167

3 0. In Sara Veeraswami v. Talluri Narayya [(1947-48) 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)

¶168

“… 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.”

¶169

Nothing was shown in the cross-examination of the prosecution’s witnesses to shake their credibility, and the finding of the learned Trial Court regarding the credibility of the witnesses is to be accepted as correct.

¶170

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Learned Trial Court had held that the testimonies of

¶172

the police officials cannot be discarded simply because they happened to be police officials. 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:

¶173

“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 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 case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force.”

¶174

Similar is the judgment in Karamjit Singh versus State, AIR 2003 S.C. 3011, wherein it was held:

¶175

“The testimony of police personnel should be treated in the same manner as the testimony of any other witness,

¶176

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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)

¶178

This position was reiterated in Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, wherein it was observed:

¶179

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

¶180

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

¶181

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that a witness from the police Department of Police should be viewed with distrust. This is also based on the principle that the quality of the evidence weighs over the quantity of evidence.

¶183

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: —

¶184

“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.”

¶185

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

¶186

“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.”

¶187

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.

¶188

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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.”

¶190

It was submitted that the case property was not produced before the learned Magistrate, which is violative of the mandatory provisions of Section 52A of the NDPS Act. This submission is not acceptable. It was laid down in Sandeep Kumar Vs State of H.P., 2022 Law Suits (HP) 149 , that the provisions of Section 52-A of the NDPS Act is not mandatory and its noncompliance is not fatal to the prosecution case. It was observed: -

¶191

“24. It has also been strenuously argued on behalf of the appellants that the investigating agency had failed to comply with the provisions of Section 52-A of the NDPS Act and thus cast a shadow of doubt on its story. The contention raised on behalf of the appellants is that the rules framed for investigations under the NDPS Act are mandatory and have to be strictly followed. Neither the required sample was taken on the spot, nor were the samples preserved by complying with Section 52-A of the Act. It has been argued that compliance with Section 52-A of the Act is mandatory…..

¶192

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¶193

xxxxxx

¶194

The precedent relied upon on behalf of the appellants, however, did not lay down the law that non-compliance with Section 52-A of the Act is fatal to the prosecution's case under the NDPS Act. On the other hand, in State of Punjab vs. Makhan Chand, 2004 (3) SCC 453 , the Hon'ble Supreme Court, while dealing with the question of the effect of non-compliance of Section 52-A, has held as under: -

¶195

This contention, too, has no substance for two reasons. Firstly, Section 52A, as the marginal note indicates, deals with the "disposal of seized narcotic drugs and psychotropic substances". Under Subsection (1), the Central Government, by notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in Sub-sections (2) & (3). If the procedure prescribed in Sub-sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by Subsection (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Subsection (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for the search of an accused but only deals with the disposal of seized narcotic drugs and psychotropic substances.

¶196

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Secondly, when the very same standing orders came up for consideration in Khet Singh v. Union of India, 2002 (4) SCC 380 , this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-Charge of the investigation. It was also held that they were not inexorable rules, as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention.”

¶198

Therefore, the prosecution’s case cannot be discarded

¶199

due to the non-compliance with the provisions of Section 52A of the NDPS Act.

¶200

It was submitted that the case property was not resealed, and this violated the mandatory provisions of Section 55 of the NDPS Act. This submission is not acceptable. The recovery was made by SHO Bheem Sen, and if he thought that, being an SHO, he was not supposed to comply with the requirement of Section 55 of the NDPS Act, he cannot be faulted. It was laid down by this Court in Prem Bahadur Vs State of H.P., 2009 (1) Shim. L.C. 65 , that the provisions of Sections 52 and 55 of the NDPS Act are not mandatory and directory. When the Investigating Officer was the SHO and he had not resealed the case property, believing that, since he was the SHO and there was no such requirement, it was not sufficient to acquit the accused. It was observed:-

¶201

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¶202

“12. From a perusal of the aforesaid two judgments, it is apparent that the provisions of Sections 52 and 55 are not mandatory but only directory. If there is substantial compliance with the same, the accused cannot be acquitted. If there are sufficient reasons for noncompliance with the Sections, then also the accused cannot claim the benefit of acquittal under these provisions. At best, the Court may have to scrutinise the prosecution evidence with greater care and caution.

¶203

In the present case, the recovery of the Charas has been proved beyond a reasonable doubt. We cannot lose sight of the fact that the investigating officer, PW6, was also the SHO of the Police Station, Manali. He presumed that he was the charge of the police station and, therefore, the provisions of Sections 52 and 55 were not applicable to him. At best, it can be presumed that when he was the investigating officer, some other police officer must be deemed to be in charge of the police station. At best, we can presume that MHC Khem Chand (PW 2) was the in-charge of the police station. However, even if we presume that MHC Khem Chand (PW 2) was the in-charge of the police station, then the mere non-compliance of Sections 52 and 55 by not putting the seal on the sample would not by itself be a ground to acquit the accused.”

¶204

Therefore, the prosecution cannot be doubted because

¶205

the case property was not re-sealed by SHO Bhim Sen (PW11).

¶206

It was submitted that the seal was not produced before 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

¶207

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¶208

73: 2002 Cri LJ 4600 that there is no requirement to produce the seal before the Court. It was observed at page 4614:

¶209

“62. It is a fact that the seals used for sealing and resealing 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 non-production of the seal, this Court held as under:

¶210

“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 nonproduction of the seal at the trial, any doubt is raised about the safe custody of the case property or not.”

¶211

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.”

¶212

It was laid down by the Hon'ble Supreme Court in Varinder Kumar Versus State of H.P. 2019 (3) SCALE 50 that failure

¶213

to produce the seal in the Court is not fatal. It was observed:-

¶214

“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

¶215

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¶216

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 were 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.”

¶217

It was specifically held in Varinder Kumar (supra) that

¶218

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.

¶219

In the present case, a seal impression was obtained on the NCB-I form. The sample seal was also produced before the learned Trial Court. The learned Trial Court had the NCB-I Form and the sample seal to compare the seal impression on the parcel. The learned Trial Court noticed while examining HASI-Deepak Raj (PW3) that the case property was bearing six seals of seal impression ‘T’ and the seals were intact. Another parcel has eight impressions of the seal ‘T’, and the seals were intact. Thus, the learned Trial Court satisfied itself regarding the correctness of the

¶220

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¶221

seal impression, and the failure to produce the seal cannot be held to be material.

¶222

It was submitted that the prosecution witnesses stated that the charas was in the form of a ball, whereas balls were found during the analysis; hence, the case property was not connected to the accused. This submission is not acceptable. It was mentioned in the Ruqa that charas was in the form of balls (Golenuma). The photograph (Ex. P16/PW11) also shows the small balls. The seizure memo also mentions balls (Golenuma). Therefore, the mere use of the word ball shape in the learned Trial Court does not mean that there was only one ball and not multiple balls.

¶223

The report of the analysis shows that the case property consisted of one sealed cloth parcel marked as “A1” bearing six impressions of seal ‘T’. The seals were found intact and were tallied with the specimen seal sent by the forwarding authority and seal impression incorporated on the NCB-I Form. This report establishes the integrity of the case property. It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, where the report of analysis shows that the seals were intact, the case of the prosecution that

¶224

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¶225

the case property remained intact is to be accepted as correct. It was observed:

¶226

“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.”

¶227

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

¶228

“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.”

¶229

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

¶230

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

¶231

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¶232

intact, which would rule out the possibility of tampering. It was observed:

¶233

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

¶234

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

¶235

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

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

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

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“10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence, was incomplete. In this regard, it is to be noticed that Yogi Raj, SHO, handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.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.

¶240

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

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chain of evidence was complete .” (Emphasis supplied) 51. Therefore, the integrity of the case property is duly established in the present case.

¶243

The compliance of Section 57 of the NDPS Act was also duly proved. SI-Bheem Sen (PW11) stated that he prepared the special report and handed it over to Samad Akhtar on 24.01.2016 with a direction to carry it to SDPO, Sundernagar. Samad Akhtar (PW6) stated that Bheem Sen handed over the special report to him on 24.01.2016, and he handed it over to the SDPO at 6:00 pm. Kulbhushan Verma (PW2) stated that Constable Samad Akhtar handed over the special report to him on 24.01.2016 at 6:00 pm. There is nothing in their cross-examination to show that they were making false statements; hence, it was proved that the special report was handed over to SDPO, Sundernagar, within 72 hours of the recovery.

¶244

Therefore, the learned Trial Court had rightly held that the prosecution case was proved beyond a reasonable doubt for the commission of an offence punishable under Section 20 of the NDPS Act and had rightly convicted the accused of the commission of an offence punishable under Section 20 of the NDPS Act.

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Learned Trial Court sentenced the accused to undergo rigorous imprisonment for five years and to pay a fine of ₹50,000/-, and in default of payment of fine to further undergo rigorous imprisonment for six months. A perusal of the notification issued by the Central Government shows that 100 grams of charas is a small quantity, whereas 1 kg of charas is the commercial quantity. It means that a person possessing 1 kg of charas can be sentenced to 10 years of imprisonment. It was laid down by the Hon’ble Supreme Court in Uggarsain v. State of Haryana , (2023) 8 SCC 109: 2023 SCC OnLine SC 755 that the Courts have to apply the principle of proportionality while imposing sentence. It was observed at page 113:

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10. This Court has, time and again, stated that the principle of proportionality should guide the sentencing process. In Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat [Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 : (2009) 3 SCC (Cri) 368 : (2009) 8 SCR 719] it was held that the sentence should “ deter the criminal from achieving the avowed object to (sic break the) law, ” and the endeavour should be to impose an “ appropriate sentence .” The Court also held that imposing “ meagre sentences ” merely on account of lapse of time would be counterproductive. Likewise, in Jameel v. State of U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712] while advocating that sentencing should be fact dependent exercises, the Court also emphasised that : ( Jameel case [Jameel v. State of U.P.,

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(2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712 ], SCC p. 535, para 15)

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“ 15 . … the law should adopt the corrective machinery or deterrence based on a factual matrix. By deft modulation, the sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration .” (emphasis supplied)

¶251

11. Again, in Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 : (2012) 8 SCR 189] the Court stressed that : (SCC p. 744, para 33)

¶252

“ 33 . … It is the duty of the court to see that an appropriate sentence is imposed, regard being had to the commission of the crime and its impact on the social order ” (emphasis supplied)

¶253

and that sentencing includes “ adequate punishment ”. In B.G. Goswami v. Delhi Admn. [B.G. Goswami v. Delhi Admn., (1974) 3 SCC 85: 1973 SCC (Cri) 796 : (1974) 1 SCR 222] , the Court considered the issue of punishment and observed that punishment is designed to protect society by deterring potential offenders as well as prevent the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentences.

¶254

12. In Sham Sunder v. Puran [Sham Sunder v. Puran, (1990) 4 SCC 731: 1991 SCC (Cri) 38: 1990 Supp (1) SCR 662] , the appellant-accused was convicted under Section 304 Part I IPC. The appellate court reduced the sentence to the term of imprisonment already undergone, i.e. six months.

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However, it enhanced the fine. This Court ruled that the sentence awarded was inadequate. Proceeding further, it opined that: (SCC p. 737, para 8)

¶257

“ 8 . … The court, in fixing the punishment for any particular crime, should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of the opinion that to meet the ends of justice, the sentence has to be enhanced .” (emphasis supplied)

¶258

This Court enhanced the sentence to one of rigorous imprisonment for a period of five years. This Court has emphasised, in that sentencing depends on the facts, and the adequacy is determined by factors such as “ the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected ” [ Ravada Sasikala v. State of A.P. [Ravada Sasikala v. State of A.P., (2017) 4 SCC 546 : (2017) 2 SCC (Cri) 436 : (2017) 2 SCR 379] ]. Other decisions, like: State of M.P. v. Bablu [State of M.P. v. Bablu, (2014) 9 SCC 281 : (2014) 6 SCC (Cri) 1 : (2014) 9 SCR 467]; Hazara Singh v. Raj Kumar [Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 : (2014) 1 SCC (Cri) 159 : (2013) 5 SCR 979] and State of Punjab v. Saurabh Bakshi [State of Punjab v. Saurabh Bakshi, (2015) 5 SCC 182 : (2015) 2 SCC (Cri) 751 : (2015) 3 SCR 590] too, have stressed on the significance and importance of imposing appropriate, “adequate” or “proportionate” punishments.

¶259

The learned Trial Court held that the impact of charas is severe on society, but the Central Government has already taken care of it while prescribing the quantity. The Legislature also considered the same while providing a range of sentences up

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to 10 years. Therefore, there is no reason to deviate from the provision of principle of proportionality. If this principle is applied to the present case, the accused possessing 340 grams of charas would be liable to punishment for three years and four months and pay a fine of ₹ 34,000/-. Hence, the sentence imposed by the learned Trial Court is excessive, which is liable to be interfered with.

¶262

In view of the above, the present appeal is partly allowed and the appellant/accused is sentenced to undergo rigorous imprisonment for three years and four months and to pay a fine of ₹34,000/- and in default of payment of fine, to further undergo rigorous imprisonment for four months for the commission of offence punishable under Section 20(B)(ii)(b) of ND&PS Act. Subject to this modification, the rest of the sentence awarded by the learned Trial Court is upheld.

¶263

In view of the above, the present appeal is partly allowed, and the sentence imposed by the learned Trial Court is modified as noted above. The modified warrants be prepared accordingly.

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