Hem Bhadur Vs State

Appellant has preferred this appeal against judgment dated 19.03.2013 passed by Special Judge, Kullu, in Sessions Trial No.25 of 2011 (RBT No.98 of 2012) , titled as State vs. Hem Bhadur alias Hem Raj , in case FIR No.36 of 2011 dated 24.02.2011, registered at Police Station Kullu, District Kullu, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ‘ NDPS Act ’), whereby the appellant has been convicted for having been found in possession of two kilograms of

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

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charas on 24.02.2011 at 9:00 a.m. at a place known as Cheel Mour, near Sarsari, and has been sentenced under Section 20 of the NDPS Act to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to further undergo imprisonment for six months.

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A Division Bench of this High Court, vide judgment dated

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05.07.2013 passed in the present appeal (Criminal Appeal No.139 of 2013), had acquitted the appellant on the basis of the judgment passed by the Division Bench of this Court in Sunil Kumar versus State of H.P. , reported in Latest HLJ 2010 (HP) 207 .

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The State had assailed the aforesaid judgment dated 05.07.2013 before Apex Court by filing Criminal Appeal No.1089 of 2016 , titled as State of H.P. versus Hem Bhadur alias Hem Raj , which has been allowed by the Apex Court vide order dated 09.02.2022, and the order of acquittal passed by the Division Bench of this Court has been set aside, on the basis of the judgment delivered by the Apex Court in Hira Singh and Another versus Union of India and Another , reported in (2020) SCCOnline SC 382 : (2020) 20 SCC 272 : (2022) 1 SCC (Cri.) 733, and the matter has been remanded to this Court for deciding the appeal afresh.

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The prosecution case is that on 24.02.2011, the police party headed by PW-7 ASI Mohan Lal, consisting of Constable Tarsem Chand/Tarsem Singh (PW-6), Constable Sher Singh (not examined being given up), Home Guard Dalip Singh (not cited as a witness) and Driver LHC Baldev Singh (PW-5), in official vehicle bearing registration No.HP-34A-9986, along with ammunition, search light, wireless set etc., left the Police Station at about 3:50 a.m. for laying a naka at Cheel Mour at Sarsari. In this regard, GD Entry No.6(A) (Ex. PW-1/A) was recorded by Inspector Sher Singh, SHO (PW-4), on 24.02.2011 at 3:50 a.m.

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After reaching at Cheel Mour, the police party laid a naka and started checking vehicles. At about 7:00 a.m., a person was noticed by the police party coming from Sarsari side along with a bag in his right hand, but on noticing the police party and vehicle, he immediately turned around and tried to flee towards the Sarsari side. However, after 8-10 steps, he was overpowered by ASI Mohan Lal (PW-7) and other police officials. The said person threw his bag on the road. On account of his suspicious behaviour, his identity was inquired into and he disclosed his identity as the appellant, but he could not give any satisfactory explanation for throwing his bag on the road, which created doubt, and he was asked to give search of his bag.

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Thereafter, the appellant himself opened the chain of the bag, wherein another bag was found. On opening the said bag, a black-coloured substance, like a chocolate, was found in a transparent polythene bag, and some contraband was in the shape of sticks. On the basis of experience and smell, the police party identified the substance as charas.

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Recovered charas was weighed on an electronic weighing machine and it was found to be two kilograms. The charas was again wrapped in the same transparent polythene and was put in the same red bag. The bag was taken into possession and seized by enclosing it in a cloth parcel, which was sealed with seal impression ‘H’ four times vide seizure memo Ex.PW-6/B. Form NCBI (Ex. PW-1/C) was filled in triplicate and seal impressions were also taken on the NCB form. Sample seal was taken on a separate piece of cloth. After use of the seal, the same was handed over to PW-6 Tarsem Chand.

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PW-7 ASI Mohan Lal (Investigating Officer) prepared the Rukka (Ex. PW-4/A) at 9:00 a.m. and handed over the same to PW5 Baldev Singh, who took the rukka to Police Station Sadar, Kullu. On reaching Police Station Kullu, SHO Sher Singh (PW-4) registered the FIR (Ex. PW-4/B) at 10:20 a.m. and made endorsement (Ex.PW4/C) thereon regarding registration of FIR No.36 of 2011. Thereafter,

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PW-5 Baldev Singh came back and reached the spot at 12:20 p.m. and handed over the case file to PW-7 ASI Mohan Lal.

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Site Map (Ex. PW-7/A) was prepared by the Investigating Officer (PW-7) on the spot.

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During investigation, on finding commission of offence under Section 20 of the NDPS Act, the appellant was arrested by PW-7 ASI Mohan Lal at 10:40 a.m. vide arrest memo (Ex. PW-6/D) and information regarding his arrest was given to his wife on her mobile phone.

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At the time of arrest, Jamatalashi memo (Ex. PW-6/D) of the appellant was prepared in the presence of Constable Sher Singh and Constable Tarsem Chand (PW-6).

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After completing the proceedings on the spot, the police party returned to the Police Station at 3:20 p.m. and the case property was handed over by PW-7 ASI Mohan Lal to SHO Sher Singh (PW-4), who resealed the contraband with seal impression ‘S’ and handed over the case property to MHC HC Ram Kishan (PW1). Regarding resealing, a GD entry (Ex.PW1/B) was also recorded by PW-4.

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PW-2 Constable Vishwa Nath took the case property to

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the State FSL through Road Certificate No.59 of 2011 dated

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25.02.2011 (Ex. PW-1/E). After receiving the FSL report (Ex. P/A), PW-4 Sher Singh prepared the challan and presented the same before the Court.

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After finding, prima facie, material against the appellant, the Trial Court framed charge against him under Section 20(b)(ii)(C) of the NDPS Act on 17.11.2011.

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For pleading not guilty, the appellant was subjected to trial.

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The prosecution examined seven witnesses to prove its case, whereas after recording statement under Section 313 Cr.P.C., the appellant did not lead any evidence in defence. On completion of trial, the appellant was convicted by the Trial Court as recorded supra .

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Learned counsel for the appellant has contended that

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there has been non-compliance with the provisions of Section 50 of the NDPS Act and, therefore, the appellant is entitled to acquittal as the mandatory requirements of Section 50 were not complied with. It has been alleged by prosecution that the alleged contraband was recovered from the bag carried by the appellant and not from his person and, therefore, in view of the judgment of the Apex Court in

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Ranjan Kumar Chadha versus State of Himachal Pradesh ,

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reported in AIR 2023 SC 5164 , in the facts and circumstances of the present case as alleged recovery was effected from a bag carried by the appellant and not from his person, the provisions of Section 50 of the NDPS Act are not attracted, and therefore, any alleged noncompliance thereof cannot be said to be fatal to the prosecution case.

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Admittedly, during search and seizure, no independent witness was associated. Undoubtedly, conviction can also be based on the statements of official witnesses only, in case their deposition is found reliable, cogent and convincing. However, in the absence of associating independent witnesses, veracity of statements of official witnesses is to be evaluated with care and caution, particularly in cases under the NDPS Act, where punishment is stringent and question of personal liberty of the accused is involved.

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As per GD Entry No.6(A) (Ex. PW-1/A), five police officials, including driver PW-5 LHC Baldev Singh, left the Police Station. PW-5 was driving the official vehicle. In his deposition before the Court, he has mentioned, in the opening lines, that he, along with Home Guard Dalip Singh (not examined) and PW-7 ASI Mohan Lal, was on patrolling duty at Cheel Mour. He has not endorsed the presence of PW-6 Tarsem Chand and Constable Sher Singh (not examined) on the spot, whereas PW-6 Constable Tarsem Chand

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and PW-7 ASI Mohan Lal have stated that all five of them were present on the spot.

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In his cross-examination, PW-5 Baldev Singh has admitted that there is a big village with a big market, namely Sarsari, at a distance of one kilometre from Cheel Mour, and there was some another village on the connected road at a distance of 100 metres towards Bhunter side and there was also a tea shop on the side of the road. He has also admitted that for visiting Chharor Nallah to Sarsari, it will take 2-3 minutes in a vehicle. He has further stated that no police official was sent to call any independent witness.

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PW-6 Constable Tarsem Chand has stated that it was incorrect that there were shops and residential houses at Chharor Nallah. Contrary to the statement of PW-5, he has stated that it is incorrect that distance between the Chharor Nallah and Sarsari village could be covered within 2-3 minutes in a vehicle. However, he has also stated that no person was deputed to bring independent witnesses before directing the accused to lift the bag from the road.

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PW-7 ASI Mohan Lal has also stated that no police official was deputed to bring independent witnesses. He has stated that it is incorrect that Sarsari village could be reached within 2-3

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minutes from the spot, but with further explanation that distance could be covered within about five minutes.

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From the aforesaid depositions, it can be inferred that Sarsari village was at a distance of about 3-5 minutes in a vehicle from the spot with large population and a big market. It was 7:00 a.m. when the appellant was allegedly apprehended. The police party had an official vehicle as well as a driver with them, but no effort was made to associate any independent witness despite the fact that on account of throwing the bag on the road while running on seeing the police party, suspicion had already arisen that the appellant was carrying contraband in the bag.

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Joining and associating independent witnesses may not be possible in all cases, but here is a case where it was neither midnight nor a secluded place having no habitation nearby. Rather, it is a case where a person was apprehended at 7:00 a.m. and a big village was situated at a distance of merely 3-5 minutes by vehicle. Despite that, no effort was made to associate any independent witness. This fact, coupled with the contradictions and discrepancies in the prosecution case, as discussed hereinafter, assumes significance and becomes fatal to the prosecution story.

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The rukka was sent through PW-5 Baldev Singh to the Police Station for registration of the FIR. He was the driver of the official vehicle and the official vehicle was available with the police party. Despite that, as per the prosecution story, PW-5 Baldev Singh left the spot in a private bus for registration of the FIR at the Police Station. When the official vehicle along with its driver was available, there was no occasion for the police party to send the rukka through a bus, particularly when it was being sent through the driver of the official vehicle itself. It is not a case where the official vehicle and its driver were retained at the spot for any emergent situation and the rukka was sent through some other police official. Rather, it is a case where the rukka was sent through the driver of the official vehicle, but without using the official vehicle itself. This circumstance also creates doubt about the truthfulness of the prosecution story.

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The veracity of the prosecution case becomes doubtful for one more reason. According to PW-5 Baldev Singh, after use, the seal was handed over to PW-6 Constable Tarsem Chand. However, Tarsem Chand is completely silent in this regard. Neither has he stated that the seal was handed over to him by the Investigating Officer nor has he produced the same. To the contrary, PW-7 ASI Mohan Lal has stated that after use, the seal was handed over to Constable Sher Singh (not examined). This contradiction with

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respect to the custody of the seal after its use, for other circumstances, assumes significance and creates further doubt about the prosecution case.

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Out of the five members of the police party, only four were cited as witnesses in the list of witnesses presented with the challan. Home Guard Dalip Singh was not cited as a witness at all. Constable Sher Singh was not examined and was given up on 17.03.2012 on the ground that his deposition would be repetitive in nature.

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It is apt to notice that till 17.03.2012, only four witnesses had been examined, whereby PW-1 HC Ram Kishan, being the MHC, proved the deposit of the case property with him and the sending of the recovered contraband to the State FSL through PW2 Constable Vishwanath and received receipt of FSL Report from State FSL. PW-2 Constable Vishwanath deposed regarding taking the contraband from the Police Station to the State FSL. PW-3 Harbans Kumar deposed with respect to receipt of the Special Report by the Additional Superintendent of Police, Kullu. PW-4 SHO Sher Singh deposed regarding receipt of the rukka, registration of the FIR in pursuance thereof and receiving the parcel containing contraband and depositing the same with MHC PW-1.

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None of the spot official witnesses, present at the spot, had been examined till 17.03.2012. Therefore, it remains unexplained as to how and for what reason Constable Sher Singh was given up before examining the other spot witnesses by saying that his deposition would be repetitive, as he was first person to be examined regarding spot. Therefore, this circumstance creates doubt regarding the prosecution story, because before examining other official witnesses of similar nature, how a witness can be stated to be repetitive in nature.

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According to the Investigating Officer (PW-7), the seal after use was handed over to Sher Singh, whereas according to PW5, it was handed over to Tarsem Chand. Tarsem Chand did not produce the seal. Therefore, Sher Singh was a material witness whose examination could have provided greater clarity on this aspect. It appears that either the prosecution story is not in consonance with the true facts or the case has been concocted in the Police Station and the actual truth is something else.

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According to Constable Tarsem Singh/Tarsem Chand (PW-6), the rukka was taken by PW-5 Baldev Singh to the Police Station at 9:30 a.m., whereas according to PW-5 Baldev Singh, he left the spot at 9:00 a.m. Perusal of the rukka depicts that the same was prepared at 9:00 a.m. According to PW-6 Tarsem Singh, the

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police party returned to the Police Station at 1:30 p.m., whereas according to PW-7 ASI Mohan Lal, the police party returned at 3:00 p.m. As per Daily Diary No.26(A) [Ex. PW-1/B], also the police party came back at 3:20 p.m. Though there is a minor discrepancy in the timeline of returning to the Police Station as reflected in the statement of PW-7 and Daily Diary Entry (Ex. PW-1/B), however, there is a considerable difference between 1:30 p.m., the time stated by PW-6, and 3:00 p.m. or 3:20 p.m., as stated by PW-7 and reflected in Ex. PW-1/B respectively.

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According to PW-5 Baldev Singh and PW-6 Tarsem Singh, the proceedings were completed by the Investigating Officer (PW-7) by sitting in the official vehicle. As per the prosecution case, five members constituted the police party. PW-5 Baldev Singh has further stated that at the time of conducting proceedings, he was sitting on the driver’s seat of the vehicle, the ASI Mohan Lal (PW-7) was sitting on the front seat, whereas the remaining police officials and the Home Guard were sitting on the rear seat. If all five members of the police party were sitting in the vehicle, where was the appellant/accused at that time, particularly when he had allegedly been apprehended with contraband and had been shown to have been arrested at 10:45 a.m. and when all official persons were sitting inside the vehicle, custody of the appellant was handed over to

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whom. This fact also creates doubt regarding the truthfulness of the prosecution story.

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There is also discrepancy regarding the route taken by the police party to reach the spot. According to PW-5 Baldev Singh, they went to the spot from the left bank side and 3-4 vehicles met them on the way from Kullu to Cheel Mour, and they shifted to the left bank through Pirdi bridge.

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PW-6 Tarsem Chand, in his cross-examination, has stated that they went to the spot via Bhunter from the right bank side and did not check any vehicle passing by on the way upto Bhunter, with further explanation that no vehicle crossed them at the relevant time as it was morning time.

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PW-7 ASI Mohan Lal, Investigating Officer, in his crossexamination, has stated that it is correct that spot map (Ex. PW-7/A) does not show any curve between the point where the police party was standing and the point where the appellant was apprehended. However, he has stated that there was a curve on the spot. He has further stated that point ‘C’ shown in the spot map, where the police party was standing, is towards the Manikaran side, whereas the point where the accused was noticed is towards the Bhunter side. Thereafter, he volunteered that the spot map might have been

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wrongly prepared in this regard. Therefore, he has admitted that the directions have been wrongly shown in the spot map and further that he did not disclose this fact to anybody at the time of preparation of the challan. This discrepancy unambiguously depicts that the spot map was not prepared on the spot, meaning thereby that the police party was not on the spot as claimed at the relevant point of time and, therefore, the story of apprehending the appellant as stated in the challan becomes doubtful.

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It is also apt to notice that PW-1 HC Ram Kishan (MHC) handed over the parcel of contraband to PW-2 Constable Vishwa Nath on 25.02.2011 vide Road Certificate No.59 of 2011 (Ex. PW1/E). PW-2 Vishwa Nath deposed that he handed over the parcel at the State FSL on 26.02.2011. However, in his cross-examination, he was confronted with the receipt endorsed by the State FSL on Ex. PW-1/F, wherein the concerned official has mentioned the date of receipt of the parcel as 26.03.2011. This discrepancy also creates doubt regarding the linking evidence connecting the contraband with the FSL report and the appellant, particularly when the seal used at the time of search and seizure was produced and the seal used for resealing was not handed over to any third person and the contraband remained somewhere, but nowhere either in the Police Station or at the State FSL, for complete one month.

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The aforesaid contradictions and discrepancies, in isolation, may not be fatal to the prosecution case. However, the cumulative effect thereof definitely raises suspicion regarding the veracity of the prosecution story. In view of these discrepancies and contradictions, the evidence led by the prosecution cannot be said to be cogent, reliable and convincing so as to uphold the conviction of the appellant and the sentence imposed upon him pursuant thereto.

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It is settled law that in case of slightest doubt, benefit is to be extended to the accused and accordingly by extending benefit of doubt, appellant-accused deserves to be acquitted of the Charge framed against him, by setting aside the impugned judgment and order passed by the Trial Court.

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In view of above, we are of the considered opinion that prosecution has miserably failed to prove its case beyond reasonable doubt, whereas the Trial Court has failed to appreciate the material on record in right perspective and accordingly, impugned judgment of conviction and order awarding sentence are set aside and appellant is acquitted of charge framed under NDPS Act and bail bonds furnished by him also stand discharged.

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The fine amount, if deposited, be refunded after the

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expiry of the period of limitation for filing the appeal, in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court.

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The case property will be confiscated to the State strictly in accordance with law after expiry of period of limitation of filing further proceedings before competent Court of law.

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A copy of this judgment along with the record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.

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(Vivek Singh Thakur) Judge

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(Ranjan Sharma) Judge

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14^th July, 2026 (Pardeep)

Hem Bhadur v. State

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Hem Bhadur v. State

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