Raju Vs State of Hp

The present appeal is directed against the judgment of conviction dated 23.11.2023 and order of sentence dated 02.12.2023 passed by learned Special Judge, Mandi, District Mandi, 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 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for five years, pay a

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

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fine of ₹ 50,000/- 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 against the accused for the commission of an offence punishable under Section 20(b)(ii)(B) of the NDPS Act. It was asserted that ASI Hem Raj (PW13), HC Jagdish, HC Yashpal, HHC Anant Ram (PW4), HHC Sanjay Kumar (PW14) and Constable Ram Dass (PW3) were present at Saula near link road Saroba at about 02:00 pm on 02.10.2016 for traffic checking. An entry No. 8 (PW-3/A) was recorded regarding their departure. They were checking the vehicles coming from Kullu. They had stopped 14-15 vehicles for checking. The police saw the accused running towards the Saloha road. HC Jagdish Chand, HHC Sanjay Kumar, Constable Ram Dass and ASI Hem Raj ran after the accused. They apprehended him at a distance of 60-70 meters towards Saroha road. ASI Hem Raj asked the accused why he was running. However, the accused could not give any satisfactory answer, and he appeared to be frightened. The police party became

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suspicious that the accused was carrying some contraband. A vehicle bearing registration No. HP-01M-0839 stopped in the meantime after seeing the police. The driver identified himself as Bhup Singh (PW2), and the other person identified himself as Chet Ram (PW1). The police requested them to become witnesses, and they agreed. Bhup Singh (PW2), Chet Ram(PW1) and HHC Sanjay Kumar (PW14) were associated as witnesses. The accused identified himself as Raju S/o Piyar Singh. The police party gave their personal search to the accused. No incriminating substance was found in thier possession. Memo (Ex-PW1/B) was prepared to this effect. The police checked the carry bag being carried by the accused and found a T-shirt (Ex-P4). Transparent polythene having black spheres was found inside the T Shirt. ASI Hem Raj (PW13) checked the spheres and found them to be charas. He weighed the charas and found its weight to be 810 grams. Charas was put in the polythene. The polythene was put in the T-shirt, and the T-shirt was put in the carry bag in the same manner in which it was recovered. The carry bag was put in a cloth parcel, and the parcel was sealed with six impressions of seal “A”. A specimen of seal “A” (Ex-PW1/C) was obtained on a piece of cloth. Columns No. 1 to 8 of NCB-I form in triplicate were filled. The seal impression

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was put on the form, and the seal, after use, was handed over to witness Chet Ram. The parcel, NCB-1 form, and sample seal were seized vide memo (Ex-PW1/A). HHC Ram Das (PW3) clicked the photographs (Ex-PW3/B1 to Ex-PW3/B13). ASI Hem Raj prepared the Rukka (PW8/A) and sent it to the Police Station through Constable Ram Dass (PW3). Constable Ram Dass (PW3) handed over the rukka to SHO, Police Station Sadar and got the FIR (Ex-PW8/B) registered in the Police Station. ASI Achhar Singh (PW12) issued the CCTNS certificate (Ex-PW12/A) regarding registration of FIR. The case file was sent to the spot for further investigation. ASI Achhar Singh (PW12) conducted the investigation. He prepared the site plan (Ex-PW13/A) and recorded the statements of the witnesses as per their versions. He arrested the accused vide memo (Ex-PW13/D). ASI Achhar Singh (PW12) produced the case property, accused, and the case file before Inspector/SHO Chet Singh Bhangalia (PW11), who resealed the parcel with seal impression “H”. He obtained the sample seal (Ex-PW11/A) on a separate piece of cloth, and the NCB-1 form (Ex-PW6/A). He issued the resealing certificate (Ex-PW11/B). He handed over the case property to HHC Dalip Singh (PW6), who made an entry in the Malkhana register at serial No. 1450

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(Ex-PW6/C) and deposited the case property in the Malkhana. The case property was produced before the learned Judicial Magistrate First Class, Court No.4, on 03.10.2016. He passed an order (Ex-PW11/D) and issued a certificate (Ex-PW11/E) regarding the correctness of the inventory. He resealed the parcel with 05 seals of “JMFC-4”. Sample seal (Ex-PW11/F) was taken on a separate piece of cloth. The parcel and sample seal were handed over to the police officials after the inventory proceedings. HHC Dalip Singh (PW6) handed over the parcel, documents, sample seals and NCB-1 in triplicate to HHC Anant Ram (PW4) with a direction to carry them to the State Forensic Science Laboratory (SFSL), Junga, vide RC No.293/16 (Ex-PW6/D). HHC Anant Ram (PW4) deposited the case property in SFSL Junga and handed over the receipt to Malkhana Muharrir on his return. ASI Hem Raj (PW13) handed over the special report (Ex.PW9/A), Superintendent of Police to Additional Superintendent of Police, Kulbhushan Verma (PW10) on 03.10.2016. Additional Superintendent of Police, Kulbhushan Verma (PW10), made an endorsement on the Special report and handed it over to his Reader, HC Tilak (PW9), who made an entry at serial No.66 in the Special Report Register (Ex.PW9/B). HHC Shriram (PW5) brought the case property and the result of analysis

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from SFSL Junga and handed them over to Malkhana Moharrir. The result of the analysis (Ex-PW11/C) shows that the exhibit was an extract of cannabis and the sample of charas, which contained 28.83% w/w resin. The statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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

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The prosecution examined 14 witnesses to prove its case. Chet Ram (PW1) and Bhup Singh (PW2) are the independent witnesses who have not supported the prosecution’s case. HHC Ram Dass (PW3) and HHC Sanjay Kumar (PW14) are the official witnesses to the recovery. HHC Anant Ram (PW4) carried the case property to SFSL Junga. Shriram (PW5) brought the case property from SFSL Junga to the police station. HHC Dalip Singh (PW6) was working as Malkhana Moharrir with whom the case property was deposited. ASI Suresh Kumar (PW7) proved the entry in the Daily Diary regarding the departure. SI Ramesh Chand (PW8) signed the

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FIR. HC Tilak (PW9) was working as a Reader to whom the Special Report was handed over. Kulbhushan Verma (PW10) was working as Additional Superintendent of Police Chet Singh Bhangalia (PW11) was working as SHO, who resealed the case property. ASI Achhar Singh (PW12) was working as an MHC who proved the FIR and various entries. Hem Raj (PW13) 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 stated that he was sitting inside the bus and was coming from Kullu. He was going to Jogindernagar with apple boxes. The police brought a bag and asked him whether the bag belonged to him. The police filed a false case against him. He left the apple box with the police. The witnesses deposed against him falsely. He did not produce any evidence in defence.

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Learned Trial Court held that the testimonies of the police officials corroborated each other. The mere fact that independent witnesses have not supported the prosecution’s case is not significant because they admitted their signatures on the seizure memo. No reason was elicited in the cross-examination to doubt the statements of the prosecution witnesses. Minor

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contradictions in the statements were not sufficient to discard them because of the time elapsed between the date of the incident and the date of deposition. The suggestions made by the prosecution witnesses in the cross-examination materially admitted the prosecution case. The testimonies of police officials cannot be ignored because they happen to be police officials. The integrity of the case property was duly proved; therefore, the accused was convicted and sentenced as aforesaid.

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Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court failed to properly appreciate the evidence led before it. The statements were full of contradictions, inconsistencies, exaggeration and embellishment. The prosecution witnesses did not support the prosecution’s case. The link evidence was missing. The seal used to seal the case property was not produced before the learned Trial Court. The defence taken by the accused that he was falsely implicated could not be ignored. The relevant questions were not put to the accused while recording his statement under Section 313 of Cr.PC.; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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

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Mr. Anil Kumar, learned counsel for the appellant/accused, submitted that the accused is innocent and he was falsely implicated based on suspicion. Independent witnesses did not support the prosecution’s case. There were various contradictions in the statements of official witnesses, which made them highly doubtful. The integrity of the case property was not established. The seal used for sealing the case property was not produced. The sentence imposed by the learned Trial Court is excessive and disproportionate; therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State, submitted that the learned Trial Court has properly appreciated the evidence led before it. The accused admitted much of the prosecution’s case in the crossexamination of the witnesses by putting various suggestions to them. Learned Trial Court had rightly held that minor

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contradictions were bound to come with time and could not have been used for discarding the prosecution case. The accused was found in possession of 810 grams of charas, and the sentence of 05 years imposed by the learned Trial Court is inadequate; hence, he prayed that the present appeal be dismissed.

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

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Chet Ram (PW1) did not support the prosecution's case. He stated that the police did not recover anything from the possession of the accused. He was permitted to be cross-examined. He admitted his signature on the seizure memo (Ex-PW1/A). He denied that the police recovered 810 grams of charas from the accused. He denied the previous statement recorded by the police.

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Bhup Singh (PW2) is another independent witness. He also did not support the prosecution’s case. He was also permitted to be cross-examined. He denied that the police had stopped the accused and conducted his search. He denied that the police recovered 810 grams of charas from the possession of the accused. He admitted his signature on the seizure memo (Ex-PW1/A). He denied the previous statement recorded by the police.

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It was submitted that the independent witnesses have not supported the prosecution case, and this is sufficient to discard the same. This submission is not acceptable. Learned Trial Court had rightly held that these witnesses had admitted their signatures on the seizure memo, and the mere fact that they had not supported the prosecution case was not sufficient to doubt the prosecution case. It was laid down by the Hon’ble Supreme Court in Hanif Khan v. Central Bureau of Narcotics, (2020) 16 SCC 709 : 2019 SCC OnLine SC 1810 that where the hostile witnesses admitted their signatures on the seizure memo, the prosecution case cannot be doubted. It was observed at page 712:

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“11. The fact that the independent witnesses may have turned hostile is also not very relevant, so long as they have admitted their signatures on the seizure memo. The seizure memo is also signed by the accused. There has been compliance with Section 50 of the NDPS Act also, as the appellant was duly informed of his legal rights….”

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It is apparent from the cross-examination of Chet

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Ram(PW14) and Bhup Singh(PW2) that they have denied the previous statements recorded by the police. These statements were duly proved by Hem Raj (PW13), who categorically stated that he had recorded the statements of Chet Ram (Ex.PW13/B) and Bhup Singh (Ex.PW13/C) on the spot as per their version. This was not

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even suggested to be incorrect. Thus, the witnesses are shown to have made two inconsistent statements, one before the police and another before the Court, and their credit has been shaken under Section 155(3) of the Indian Evidence Act. It was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. However, when he is confronted with some portions of the previous statement, his credibility is shaken to that extent, and the rest of the statement can be relied upon. It was observed:

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

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16. This Court has also laid down in Ian Stilman versus. State

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2002(2) Shim. L.C. 16 that where a witness has been crossexamined by the prosecution with the leave of the Court, his statement cannot be relied upon. It was observed:

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

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

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It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri. L.J. 4254, that the prosecution's version cannot be discarded because the independent witnesses did not support it. It was observed:

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“Though the independent witnesses, PW-1 Rajiv Kumar and PW-2 Hira Lal, were declared hostile and were crossexamined, however, the law in respect of appreciating the testimonies of such witnesses is well settled. Hon'ble Apex Court in Sudru versus State of Chhattisgarh, (2019) 8 SCC 333 , relying upon Bhajju versus State of M.P., 2010 4 SCC 327 , has again reiterated the well-settled principle that evidence of a hostile witness can be relied upon by the prosecution

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version. Merely because a witness has turned hostile, the same does not render his evidence or testimony inadmissible in a trial, and such a conviction can be based upon such testimony, if it is corroborated by other reliable evidence.

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In a case titled Raja and Others versus State of Karnataka (2016) 10 SCC 506 , the Apex Court observed that the evidence of a hostile witness cannot be altogether discarded, and as such, it is open for the Court to rely on the dependable part of such evidence which stands duly corroborated by other reliable evidence on record.

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In a case titled Selvaraj @ Chinnapaiyan versus State represented by Inspector of Police, (2015) 2 SCC 662 , the Apex Court has observed that in a situation/case, wherein the witness deposes falsely in his/her cross-examination, that itself is not sufficient to outrightly discard his/her testimony in examination-in-chief. The Court held that a conviction can be recorded believing the testimony of such a witness given in examination-in-chief; however, such evidence is required to be examined with great caution.

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In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh, (2011) 5 SCC 123 , it has been held as under: -

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"The seizure witness turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to the NDPS Act.”

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Therefore, the accused cannot be acquitted simply

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because the independent witnesses have turned hostile.

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HHC Ram Dass (PW3), HHC Sanjay Kumar (PW14) and Hem Raj (PW13) supported the prosecution case in its entirety. They consistently stated that the police party was checking the vehicle when they saw the accused running away towards Saroha

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Road and caught him on suspicion. They deposed about the search of the carry bag being carried out by the accused in the presence of the occupants of the vehicle bearing No. HP-01M-0839. They deposed about the recovery of a T-shirt and a pouch having 810 grams of charas. Their testimonies corroborate each other, and nothing was suggested to them to show that they had any motive to depose falsely against the accused.

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It was submitted that there are various contradictions in the statements of the prosecution witnesses, which made the prosecution case highly suspect. Learned Trial Court had rightly noticed that the incident had taken place on 02.10.2016, whereas the statements of HHC Ram Dass (PW3), Hem Raj (PW13), and HHC Sanjay Kumar (PW14) were recorded on 01.05.2019, 05.09.2023, and 26.09.2023, respectively. Therefore, the contradictions were bound to come with time, and these cannot be used for discarding the prosecution case. 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 sufcient to discard the prosecution fi 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

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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. 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

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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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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

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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 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:

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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 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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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

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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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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 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

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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 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:

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“13. … The court, while appreciating the evidence, must not attach undue importance to minor

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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]

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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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21. It was submitted that the vehicle bearing registration No. HP-01M-0839 is not visible in any of the photographs, and the presence of independent witnesses on the spot is not established. This submission will not help the accused. Chet Ram (PW1) admitted that he was stopped at Nakka Sawla and the documents of his vehicle were checked. Similarly, Bhup Singh (PW2) admitted his signature on the memo, which shows his presence on the spot. Therefore, the presence of the independent witnesses on the spot was admitted by them, and the fact that the vehicle is not visible in any of the photographs will not make the prosecution’s case suspect.

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22. It was submitted that the photographs do not show the spot position correctly. This submission will also not help the accused. It was suggested to Chet Ram (PW1) that the police had taken the photographs by asking him to make poses. Similarly, it was suggested to Bhup Singh (PW2) that the police took him in their vehicle to the spot where the photographs were taken after giving them directions. Thus, the suggestions show that taking the photographs on the spot was not disputed in the crossexamination. It was laid down by the Hon’ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365: 2023

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SCC OnLine SC 355 that the suggestion put to the witness can be taken into consideration while determining the innocence or guilt of the accused. It was observed at page 382: -

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“34. According to the learned counsel, such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.

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35. In Tarun Bora v. State of Assam [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568] , a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365IPC read with Sections 3(1) and 3(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.

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36. In Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568] , this Court, while considering the evidence on record, took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, concluded that the presence of the accused was admitted. We quote with profit the following observations made by this Court in paras 15, 16 and 17, respectively, as under : ( Tarun Bora case [Tarun Bora v. State of Assam, (2002) 7 SCC 39: 2002 SCC (Cri) 1568 ], SCC pp. 43-44)

¶122

“ 15 . The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night, he was carried away blindfolded on a bicycle to a different place, and when his eyes were unfolded, he could see his younger brother Kumud Kakati (PW 2) and his wife Smt Prema Kakati (PW 3). The place was Duliapather, which is about 6-7 km away from his Village, Sakrahi. The witness identified the appellant, Tarun Bora, and stated that it is

¶123

P a g e | 24 ( 2025:HHC:26706 )

¶124

he who took him in an Ambassador car from the residence of Nandeswar Bora on the date of the incident. 16 . In cross-examination, the witness stated as under: ‘Accused Tarun Bora did not blind my eyes, nor did he assault me.’

¶125

17 . This part of the cross-examination is suggestive of the presence of the accused Tarun Bora in the whole episode. This will suggest the presence of the accused, Tarun Bora, as admitted. The only denial is that the accused did not participate in blindfolding the eyes of the witness, nor assaulted him.”

¶126

37. In Rakesh Kumar v. State of Haryana [Rakesh Kumar v. State of Haryana, (1987) 2 SCC 34: 1987 SCC (Cri) 256] , this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34IPC. While reappreciating the evidence on record, this Court noticed that in the cross-examination of PW 4 Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court, taking into consideration the nature of the suggestion put by the defence and the reply, concluded that the presence of the accused, namely, Dharam Vir, was established on the spot at the time of the occurrence. We quote the following observations made by this Court in paras 8 and 9, respectively, as under (SCC p. 36)

¶127

“ 8 . PW 3, Bhagat Singh, stated in his examination-inchief that he had identified the accused at the time of the occurrence. But curiously enough, he was not crossexamined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.

¶128

9 . In his cross-examination, PW 4 Sube Singh stated that the accused, Dharam Vir, was wearing a shirt of white

¶129

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¶130

shirt. It was suggested to him on behalf of the accused that Dharam Vir was wearing a cream-coloured shirt of cream colour. In answer to that suggestion, PW 4 said it is not correct that Dharam Vir, the accused, was wearing a shirt of a cream colour and not a white colour at that time.’ The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir on the spot at the time of occurrence.”

¶131

38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the crossexamination, if found to be incriminating in nature in any manner, would definitely bind the accused, and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

¶132

39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except for the concession on a point of law. As a legal proposition, we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner.”

¶133

23. Thus, the suggestions made to the prosecution witnesses can be used to appreciate the prosecution evidence and learned Trial Court had rightly held that the suggestions admitted much of the prosecution case.

¶134

24. The accused stated in his statement recorded under Section 313 of the Cr.PC that he was coming from Kullu and was going towards Jogindernagar when police brought a bag and asked

¶135

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¶136

him whether the bag belonged to him. It was not suggested to any witness why the police should have picked him up out of the many passengers present in the bus. Nothing was suggested to the police ofcials in their cross-examination as to why they would depose fi falsely against the accused; therefore, the only explanation provided by the police ofcials that they were making a correct fi statement has to be accepted as correct.

¶137

25. Learned Trial Court had rightly pointed out that the testimonies of police ofcials cannot be discarded because they fi happen to be police ofcials. The presumption that an of fi cial act is fi It done regularly applies to the acts done by police ofcials as well. fi 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 ofcials cannot be fi discarded on the ground that they belong to the police force. It was observed:

¶138

“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

¶139

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¶140

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.”

¶141

Similar is the judgment in Karamjit Singh versus State

¶142

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

¶143

“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)

¶144

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

¶145

2023 SCC OnLine SC 986, wherein it was observed:

¶146

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

¶147

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

¶148

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¶149

2013 SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large shows their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him, but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that the quality of the evidence outweighs the quantity of evidence.

¶150

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: —

¶151

“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.”

¶152

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

¶153

“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

¶154

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¶155

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.”

¶156

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.

¶157

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.”

¶158

28. 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 fndings regarding the credibility of i the witnesses recorded by the learned Trial Court unless there is some illegality in it. It was observed: -

¶159

“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

¶160

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¶161

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 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.

¶164

29. …………………………………..

¶165

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)

¶166

“… 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

¶167

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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

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

¶170

30. 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 73: 2002 Cri LJ 4600 that there is no requirement to produce the seal before the Court. It was observed at page 4614:

¶171

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

¶172

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¶173

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

¶174

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.”

¶175

31. It was laid down by the Hon'ble Supreme Court in Varinder Kumar Versus State of H.P. 2019 (3) SCALE 50 that failure to produce the seal in the Court is not fatal. It was observed:-

¶176

“6. We have considered the respective submissions. PW10 is stated to have received secret information at 2.45 P.M. on 31.03.1995. He immediately reduced it into writing and sent the same to PW8, Shri Jaipal Singh, Dy. S.P., C.I.D., Shimla. At 3.05 P.M., PW7, Head Constable Surender Kumar, stopped PW5, Naresh Kumar and another independent witness, Jeevan Kumar, travelling together, whereafter the appellant was apprehended at 3.30 P.M. with two Gunny Bags on his Scooter, which contained varying quantities of ‘charas’. PW8, Shri Jaipal Singh, Dy.S.P., C.I.D., Shimla, who had arrived by then, gave notice to the appellant and obtained his consent for carrying out the search. Two samples of 25 gms. Each were taken from the two Gunny Bags and sealed with the seals ‘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

¶177

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¶178

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.”

¶179

32. It was specifcally held in i Varinder Kumar (supra) that

¶180

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.

¶181

33. In the present case, the seal impression was obtained on the NCB-I form. The sample seals (Ex-PW1/C and Ex-PW11/F) were also produced before the Court. When the case property was produced before the Court on 02.01.2018, the parcel was found sealed with 06 impressions with seal “A”. 06 impressions of seal “H” and 05 seal impressions of SFSL and all the seals were found to be intact. The Court had the seal impression to compare the seal and had satisfed itself about the correctness of the seal i impression; therefore, the failure to produce the seal was not material and could not have been used to discard the prosecution case.

¶182

34. Hem Raj (PW13) admitted in his cross-examination that 16 seals were broken and were not intact. However, this admission will not make the integrity of the case property suspect. The case

¶183

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¶184

( 2025:HHC:26706 )

¶185

property was produced during the examination of Chet Ram (PW1) and was opened and shown to him; therefore, the seals were bound to be broken in the process of opening the parcel. Hence, the fact that the seals were broken during the examination of Hem Raj (PW13) does not show any tampering with the case property.

¶186

35. The parcel was produced before Chet Ram (PW11), who resealed the same. It was produced before the learned Magistrate who certifed the integrity of the case property and issued a i certifcate. The parcel was taken to SFSL, Junga, for analysis. The i report of analysis (Ex-PW11/C) reads that the parcel was bearing 06 seals of seal impression “H” and 05 seals of seal JMIC-4, Mandi. The seals were found intact and were tallied with the specimen seals sent by the forwarding authority and the seal impression impressed on the form NCB-I. 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. 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

¶188

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was no tampering with the seal, and the seal impressions were separately taken and sent to the expert also.”

¶190

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

¶191

“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.”

¶192

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

¶193

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 seals were found to be intact, which would rule out the possibility of tampering. It was observed:

¶194

“The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk, and accordingly, the same were seized after taking samples therefrom, which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put on the samples were in any manner tampered with before it was examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to

¶195

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¶196

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.

¶197

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.

¶198

The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with. 38. 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 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

¶202

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¶203

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

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

¶206

property has not been established cannot be accepted.

¶207

40. The report of analysis shows that the exhibit was an extract of cannabis and the sample of charas, which contained 28.83% W/w resin. Since the integrity of the case property was established, therefore, it was duly proved that the substance recovered from the accused was charas, and the learned Trial Court had rightly held him guilty of the commission of an of f ence punishable under Section 20(b)(ii)(B) of the NDPS Act.

¶208

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¶209

41. Learned Trial Court sentenced the accused to undergo

¶210

rigorous imprisonment for 05 years. If the principle of proportionality is applied, a person who possesses 01 kg can be held liable for punishment up to 10 years of imprisonment. Thus, the sentence of 05 years for possessing 810 grams of charas is inadequate. However, no appeal was fled by the State seeking the i enhancement of the sentence, and no interference is required with the sentence imposed by the learned Trial Court.

¶211

42. No other point was urged.

¶212

43. In view of the above, there is no infrmity in the i judgment and order passed by the learned Trial Court; hence, the present appeal fails and the same is dismissed.

¶213

44. A copy of the judgment and the record of the learned Trial Court be sent back forthwith.

¶214

( Rakesh Kainthla)

¶215

Judge

¶216

08^th August 2025

¶217

( Shamsh Tabrez )

Raju v. State of Hp

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Raju v. State of Hp

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