Yashpal Thakur Vs State of Hp

The present appeal is directed against the judgment of conviction and order of sentence dated 23.08.2024, passed by learned Special Judge (Forests) Shimla, District Shimla, H.P. (learned Trial Court) vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 21 of Narcotic Drugs and Psychotropic

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

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Substances Act (in short ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for four years, pay a fine of ₹ 25,000/- and in default of payment of fine to undergo further simple 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 before the learned Trial Court against the accused for the commission of an offence punishable under Section 21 of the NDPS Act. It was asserted that HHC Lalit Kumar (PW-12), HHC Sunil Kumar, Rahul (PW-9), Constable Bhuvnesh Kumar and Constable Dheeraj (PW-6) had gone towards Sankat Mochan, Tara Devi, Shoghi under the supervision of ASI Ambi Lal on 22.03.2021. They stopped a bus bearing registration No. PB32P-3661 for checking at 4:00 p.m. at Shoghi Naka. The accused was occupying seat No. 19. He threw a plastic wrapper of Lays after seeing the police. The police became suspicious and associated conductor Nitish Kumar (PW-7) and driver Paramjeet. The accused identified himself as Yashpal Thakur. The police checked the wrapper and found a transparent pouch containing a light brown substance and another plastic

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pouch containing seven syringes of 1Ml each. The police checked the substance with the help of a Drug Detection Kit and found it to be Heroin. The police weighed the heroin and found its weight to be 10.50 grams. Heroin and syringes were put in the wrapper in the same manner in which they were recovered. The wrapper was put in a cloth parcel, and the parcel was sealed with eight seal impressions of seal ‘U’. Sample seal (Ext.P-2/PW-7) was put on a separate piece of cloth. NCB-I Form (Ext.P-3/PW-10) was prepared, and the seal impression was put on the Form. The seal was handed over to Nitish Kumar (PW-7) after its use. The parcel was seized vide memo (Ext.P-1/PW-7). Photographs were taken, and the proceedings were video recorded. Rukka (Ext. P-1/PW-10) was prepared and sent to the Police Station through Constable Rahul (PW-9). F.I.R. (Ext.P-7/PW-10) was registered in the Police Station. HC Ashwani Kumar (PW-13) was directed to carry out the investigation. He visited the spot. HC Lalit Kumar (PW-12) handed over the case property, documents and the custody of the accused to HC Ashwani Kumar (PW-13). Inventory (Ext.P-1/PW-12) was prepared. HC Ashwani Kumar prepared the spot (Ext.P-1/PW-13) and recorded the statement of witnesses as per their version. He arrested the accused vide memo (Ext.P-2/PW-

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13). He produced the case file and case property before Lakshman Kumar (PW-10), who re-sealed the parcel with three seal impressions of seal ‘O’. He obtained the sample seal (Ext.P-2/PW10) on a separate piece of cloth. He filled columns No. 9 to 11 of the NCB-I form and put the seal impression on the Form. He issued a re-seal certificate (Ext.P-4/PW-10). He handed over the case property to MHC Vinod Bhagta, who deposited the same in Malkhana. HC Ashwani Kumar (PW-13) filed an application (Ext.P-6/PW-10) in the Court of the learned Additional Chief Judicial Magistrate, Court No.2, Shimla, under Section 52A of the NDPS Act for the certification of inventory. Learned Additional Chief Judicial Magistrate, Court No.2, Shimla issued a certificate (Ext.P-19/PW-13) regarding the correctness of the inventory and passed an order (Ext.P-18/PW-13). Photographs of the inventory proceedings (Ext.P-8/PW-13 to Ext.P-17/PW-13) were taken. The parcel was sealed with the Court seal. Sample seal (Ext.P-7/PW-13) was taken on a separate piece of cloth. Special Report (Ext.P1/PW-1) was handed over to LHC Archna (PW-2), who delivered it to Sushil Kumar, Additional Superintendent of Police (PW-1). Sushil Kumar made an endorsement on the Special Report and handed it over to Constable Sandeep Kumar (PW-3), who made an

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entry at Sl. No. 21 (Ext.P-2/PW-1) and retained the special report on record. Constable Sahil (PW-4) carried the case property, sample seals, and documents for analysis to the State Forensic Science Laboratory (SFSL), Junga, H.P. The result of analysis (Ext.P-21/PW-13) shows that the exhibit stated as heroin is a sample of Diacetyl morphine (Heroin). Statements of the remaining witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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3 . Learned Trial Court charged the accused with the commission of an offence punishable under Section 21 of the NDPS Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution examined 13 witnesses to prove its case. Sushil Kumar Sharma (PW-1) was posted as Additional Superintendent of Police, Shimla, to whom the Special Report was handed over. LHC Archana (PW-2) carried the Special Report to the Additional Superintendent of Police. Constable Sandeep Kumar (PW-3) was posted as a Reader, who made an entry in the Special Report Register. Constable Sahil (PW-4) carried the case property to SFSL, Junga. Constable Raman Deep (PW-5) brought the case

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property and the result of the analysis from the SFSL, Junga. Constable Dheeraj (PW-6) proved the entry in the daily diary. Nitish Kumar (PW-7) and Constable Rahul (PW-9) are the witnesses to the recovery. Raman Deep Singh (PW-8) proved the duty roster. Lakshman Kumar (PW-10) resealed the case property. Constable Hamesh (PW-11) proved the entries in the daily diary. HC Lalit Kumar (PW-12) effected the recovery. HC Ashwani Kumar (PW-13) conducted the investigation.

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The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he had disclosed his name as Yashpal to the police. He denied the rest of the prosecution's case. He stated that he was travelling on the bus. One person came near his seat and conducted his search; however, nothing was recovered during the search. He did not produce any evidence in defence.

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Learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. There was nothing to show that witnesses had any enmity with the accused. The minor contradictions in the statements of the witnesses were not sufficient to discard the prosecution's case. The integrity of the case property was established. Hence, the accused was convicted

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of the commission of an offence punishable under Section 21 of the NDPS Act and was sentenced to undergo rigorous imprisonment for four years, pay a fine of ₹25,000/- and, in default of payment of fine, to undergo simple imprisonment of six months.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing the accused. The accused had no concern with the contraband. Learned Trial Court brushed aside the material contradictions in the statements prosecution of witnesses. There was non-compliance with various provisions of NDPS Act. 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 M/s Manoj and Harsh, learned counsel for the appellant and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.

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Mr. Manoj Pathak, learned counsel for the appellant, submitted that the learned Trial Court erred in convicting and sentencing the accused. Statements of the prosecution witnesses contradicted each other on material particulars. The prosecution

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examined only the conductor and did not examine the driver of the bus. Hence, an adverse inference should be drawn against the prosecution. The integrity of the case property was not established; therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He submitted in the alternative that the learned Trial Court has imposed a disproportionate sentence without any justification. Hence, he prayed in the alternative that the sentence imposed upon the appellant be reduced.

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Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State, submitted that the learned Trial Court had rightly held that minor contradictions are insufficient to discard the prosecution case. The incident occurred on 22.03.2021, and the witnesses made the statements in the year 2024. The contradictions were bound to come with time due to the failure of memory and could not have been used to discard the prosecution's case. Heroin is affecting the young generation adversely, and the learned Trial Court had rightly taken a strict view in the matter. Therefore, he prayed that the present appeal be dismissed.

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

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12. Nitish Kumar (PW-7) stated that he and Paramjeet driver, were coming from Jalandhar to Shimla in a bus bearing registration No. PB32P-3661. The police stopped the bus at Shoghi Barrier. The police started searching the luggage of the passengers. When they reached near seat No. 19, a passenger threw something near his feet. The police picked it up and found it to be a wrapper of Lays chips. A brown substance wrapped in a plastic pouch and two syringes were found inside the packet. The police said that the substance was heroin. The police weighed the heroin and found its weight to be 10.50 grams. The police sealed the contraband along with the packet in a parcel and seized the parcel. He identified his signatures on the memo. He admitted in his cross-examination that long-distance buses do not stop at the transit. One person was wearing a uniform, and the remaining were in civil dress. He could not tell the number of police officials present outside the bus. He admitted that he had told the police that one police official boarded the bus from the front door and another police official boarded from the rear door. 20-22 passengers were present in the bus. There were two female passengers in the bus, but no female

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constable was inside the bus. He volunteered to say that the lady constables were standing outside. The police did not give their search to any person. He admitted that he had mentioned s even syringe s in his statement recorded under Section 161 Cr.P.C. He could not produce the seal before the Court. The photographs were taken on the spot. Proceedings continued for five hours. He denied that no recovery was effected.

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13. This witness has supported the prosecution's case. There is nothing in his cross-examination to show that he has enmity with the accused or any motive to falsely depose against the accused. It was submitted that there were major contradictions in his statement. He has stated to the police in his statement recorded under Section 161 Cr.P.C. that one police official boarded the front door of the bus and one police official boarded from the rear door, whereas he stated in the Court that two police officials boarded the bus from the front door and two officials boarded the bus from the rear door. Further, he stated before the Court that two syringes were recovered, whereas he had stated before the police that seven syringes were recovered. These contradictions are not sufficient to discard the testimony of this witness. It was rightly pointed out that the incident had taken place on 22.03.2021,

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whereas this witness was making his statement on 10.01.2024 after the lapse of about three years. Therefore, contradictions were bound to come with time due to failure of memory. It was laid down by the Hon’ble Supreme Court in Goverdhan v. State of Chhattisgarh (2025) SCC Online SC 69 that the discrepancies are not sufficient to discard the prosecution case unless they are material. It was

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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 thereof should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K.

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Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105] . In para 10 of the Report, this Court observed: (SCC pp. 514-15)

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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 matters not touching the core of the case, a hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer, not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention and reproduction differ with individuals.’

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

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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 nondiscrepant. 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 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.’

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

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

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“ 155. Impeaching the credit of a witness .—The credit of a witness may be impeached in the following ways by the

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adverse party, or, with the consent of the court, by the party who calls him—

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(1)-(2) ***

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

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

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

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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:

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“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

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painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:

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

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

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(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.

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(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.

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(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.

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(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

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span. A witness is liable to get confused or mixed up when interrogated later on.

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(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by the counsel and, out of nervousness, mix up facts, get confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him—perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.”

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

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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]

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‘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 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….’”

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14. The number of people who boarded the bus and the number of syringes recovered are the matters of detail which do not affect the core of the prosecution case. Hence, his testimony cannot be discarded due to these two contradictions.

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It was submitted that the driver of the bus was not examined, and an adverse inference should be drawn against the prosecution. This submission cannot be accepted. The record shows that Pramjeet was given up as being repetitive. It was held in Hukam Singh v. State of Rajasthan, (2000) 7 SCC 490: 2000 SCC (Cri) 1416: 2000 SCC OnLine SC 1311 that the Public Prosecutor is not

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obliged to examine all the witnesses and e can give the respective witnesses. It was observed at page 495:

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“ 13. When the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution”. It is clear from the said section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.

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14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that anyone among that category would not support the prosecution

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version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor fairly. He can interview the witness beforehand to enable him to know well in advance the stand that particular person would be adopting when examined as a witness in court.

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

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

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

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

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v. State of Haryana, (2005) 10 SCC 196 , that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the

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testimony of the witnesses appears to be truthful, the non-

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examination of other witnesses will not make the testimony doubtful. It was observed: -

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“ [10] It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye witnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained. ”

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This position was reiterated in Rohtash vs. State of

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Haryana 2013 (14) SCC 434, and it was held that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed:

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A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses, is whether the prosecution is bound to examine all the listed/cited witnesses. This Court,

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in Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954 SC 31 , has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.

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

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In Masalti v. the State of U.P., AIR 1965 SC 202 , this Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr. P.C.

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(See also: Bir Singh & Ors. vs. State of U.P., (1977 (4) SCC 420 )

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In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328 , this Court reiterated a similar view and held that if the eyewitness(s) is deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case,

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regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.

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In Raghubir Singh v. State of U.P., AIR 1971 SC 2156 , this Court held as under:

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

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In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC 2914 , this Court reiterated a similar view and further observed:

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

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In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991 SC 1346 , this Court held:

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"10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence, and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. Nonetheless, if

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either of the parties withholds any evidence which could be produced and which, if produced, would be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.

¶114

.. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or another proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."

¶115

In Banti @ Guddu v. State of M.P. AIR 2004 SC 261 , this Court held:

¶116

"12. In trials before a Court of Session, the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973, enjoins him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused.......If that version is not in support of the prosecution's case, it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for the prosecution.

¶117

When the case reaches the stage envisaged in Section 231 of the Code, the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to

¶118

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produce evidence "in support of the prosecution" and not in derogation of the prosecution's case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the presences cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects.......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.

¶120

It is open to the defence to cite him and examine him as a defence witness."

¶121

The said issue was also considered by this Court in R. Shaji (supra) , and the Court, after placing reliance upon its judgments in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , and Kishan Chand v. State of Haryana JT 2013 (1) SC 222 , held as under:

¶122

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

¶123

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one attesting witness, it has been held that the number of witnesses produced over and above this does not carry any weight."

¶125

Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution, and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness if it is so warranted in the interests of justice. The evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.

¶126

This position was reiterated in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150 , wherein it was observed at page 224: -

¶127

Non-examination of the witness

¶128

34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution, along with the adequacy of the materials, sufficient enough to proceed with the trial and

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convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.

¶131

35. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369: 1976 SCC (Cri) 646] : (SCC pp. 37778, para 13)

¶132

“ 13 . Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the “pakodewalla”, hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution's case rests entirely on the prosecution, and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness, even on minor points, would undoubtedly lead to rejection of the prosecution's case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, before an adverse inference against the

¶133

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prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters . In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted, a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country, there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore, nobody wants to be a witness in a murder or any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes.” (emphasis supplied)

¶135

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

¶136

“ 19 . In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent,

¶137

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credible, trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eyewitness if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC 614], Kunju v. State of T.N. [Kunju v. State of T.N., (2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana [Kishan Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807] .)”

¶139

Thus, no adverse inference can be drawn against the prosecution for not examining Paramjeet Singh.

¶140

Constable Rahul (PW-9) also supported the prosecution case in his examination in chief, which is not being reproduced to avoid prolixity and repetition. He stated in his cross-examination that the police party reached Shoghi at 11:00 a.m. They checked 40-50 vehicles till 4:00 p.m. The bus came from Jalandhar to Shimla. No female constable was with them in the raiding party. The proceedings continued till 5:30 p.m., and he left the spot

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thereafter with rukka. He developed the photographs with the help of his laptop. He could not recall the registration number of the bus. He denied that he was not present on the spot, and no recovery was effected in his presence.

¶143

HC Lalit Kumar (PW-12) also supported the prosecution case. He stated in his cross-examination that they went from the office to the spot in two private vehicles. They reached the spot at about 11:00 a.m. They had checked 40-50 vehicles on the spot. The bus came from Jalandhar to Shimla. There were 20-22 passengers in the bus. He did not check the luggage of female passengers because no lady constable was part of the team on that day. He and Sunil Kumar saw the accused while throwing the packet. The packet was taken out of the right pocket. He did not personally check the persons. He had no suspicion that the accused might be carrying some contraband in his clothes. He had a weighing machine, needle, thread, wax, candle, white cloth, some papers and forms, etc. Another Investigating Officer visited the spot with Constable Rahul. He remained on the spot till 10:00 p.m. He admitted that there is a Police Post at the Shoghi barrier, and other police officials also remain in that post. He denied that the accused had not thrown anything, and he was falsely implicated.

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¶145

There is nothing in his cross-examination which suggests that he made a false statement. Nothing was suggested to him that he had any motive to falsely implicate the accused; therefore, there is no reason to disbelieve his testimony.

¶146

It was submitted that there are contradictions in the statements of the prosecution witnesses regarding the presence of the lady constable. Constable Rahul (PW-9) and HC Lalit Kumar (PW-12) stated that there was no lady constable in the raiding party, whereas Nitish Kumar (PW-7) stated that lady constable was present outside the bus. This contradiction is apparent and not real because these witnesses deposed about the raiding party. HC Lalit Kumar specifically stated that there is a police barrier at Shoghi; therefore, the lady constable could be present being part of the police barrier Shoghi and the statements are reconcilable.

¶147

The prosecution witnesses corroborated the statements of each other. There is nothing in their testimonies to doubt them. 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

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recorded by the learned Trial Court unless there is some illegality in it. It was observed: -

¶150

“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.

¶151

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:

¶152

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

¶153

29. …………………………………..

¶154

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

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the point, stated [ Quoting from Watt v. Thomas, [1947] 1 All ER 582 , pp. 583 H-584 A.]: (IA p. 255)

¶157

“…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.”

¶158

25. Nothing was shown in the cross-examination of the

¶159

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.

¶160

26. Learned Trial Court had held that the testimonies of the

¶161

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

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Cri.L.J.4254 that the testimonies of the police officials cannot be

¶164

discarded on the ground that they belong to the police force. It was

¶165

observed:

¶166

“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.”

¶167

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

¶168

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

¶169

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

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

¶172

2023 SCC OnLine SC 986, wherein it was observed:

¶173

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

¶174

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: —

¶175

“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.

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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.”

¶178

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

¶179

“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.”

¶180

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.

¶181

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

¶182

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by the High Court vide the impugned judgment, cannot be faulted with.”

¶184

Therefore, the learned Trial Court had rightly relied upon the statements of prosecution witnesses.

¶185

The case property was sent to SFSL, Junga and result of the analysis Ext.P-21/PW-13 shows that exhibit stated as heroin is a sample of Diacetyl morphine (Heroin). It also mentions that the parcel was bearing eight seal of ‘U’, three seals of ‘O’ and two seals of Civil Nazir Court Shimla’. The seals were found intact and tallied with specimen seals sent by the forwarding authority and seal impressions U and O impressed on the forms NCB-1. This report establishes the integrity of the case property. It was held in Baljit Sharma vs. State of H.P 2007 HLJ 707, that where the report of analysis shows that the seals were intact, the case of prosecution that the case property remained intact is to be accepted as correct.

¶186

It was observed:

¶187

“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.”

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

¶190

“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.”

¶191

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

¶192

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

¶193

“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

¶194

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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.

¶196

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.

¶197

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

¶198

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

¶199

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

¶200

held: -

¶201

“10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, the link evidence was incomplete. In this regard, it is to be

¶202

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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.

¶204

Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete .” (Emphasis supplied)

¶205

34. Therefore, the submission that the integrity of the case

¶206

property has not been established cannot be accepted.

¶207

The result of the analysis shows that exhibit stated as heroin a sample of Diacetyl morphine (heroin). Since the integrity

¶208

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of the case property from the time of recovery till the analysis has been proved; therefore, it has been proved on record that the appellant was found in possession of 10.014 grams of heroin. The analysis report shows that total weight of exhibit with poly packet 10.540 grams and actual weight of exhibit of 10.014 grams. Therefore, the learned Trial Court had rightly convicted the accused of the commission of offence punishable under Section 21(b) of the NDPS Act.

¶210

The learned Trial Court sentenced the accused to undergo rigorous imprisonment for four years, pay a fine of ₹25,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months. The Central Government has notified the commercial quantity of ‘heroin’ as 250 gms, which means that a person possessing 250 gms of ‘heroin’ can be sentenced to 10 years’ 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:

¶211

10. This Court has, time and again, stated that the principle of proportionality should guide the sentencing process.

¶212

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¶213

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

¶214

“ 15 . … the law should adopt the corrective machinery or deterrence based on a factual matrix. By deft modulation, the sentencing process is 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)

¶215

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)

¶216

“ 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)

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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

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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.

¶220

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

¶221

“ 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 .”

¶222

(emphasis supplied)

¶223

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

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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.

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Learned Trial Court held that the drug and substance abuse is a serious problem, which adversely affect the social fabric of the country and needs to be viewed as a psycho social medical problem. The legislature has considered all these factors while providing a punishment of 10 years to a person in possession of 250 grams of heroin.

¶227

Learned Trial Court did not assign any reason to deviate from the principle of proportionality and applying the principle of proportionality, the sentence of four years is not justified. Learned Trial Court pronounced the order on 23.08.2024. It was noticed that the accused/remained in judicial custody for 388 days. The order shows that he was in custody on the date of pronouncement of the judgment, therefore, he has already undergone about one year’s imprisonment since the pronouncement of the order, which is more than sufficient after applying the principle of proportionality . Therefore, he is ordered to undergo sentence for

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the period already undergone by him, t0 pay a fine of ₹10,000/-, and in default of payment of fine, to further undergo imprisonment for three months for the commission of an offence punishable under Section 21(b) of the ‘N.D& P.S Act’.

¶230

39. In view of the above, the present appeal is partly allowed and the appellant/accused is sentenced to undergo imprisonment for the period already undergone by him, to pay a fine of ₹10,000/and in default of payment of fine to further undergo simple imprisonment for three months for the commission of an offence punishable under Section 21(b) of NDPS Act. Subject to this modification, the rest of the judgment passed by the learned Trial Court is upheld.

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40. The modified warrant be prepared accordingly.

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41. Records of the learned Trial Court be sent back

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forthwith, along with a copy of this judgment

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( Rakesh Kainthla) Judge

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26^th August, 2025

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( ravinder )

Yashpal Thakur v. State of Hp

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Yashpal Thakur v. State of Hp

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