Himachal Pradesh High Court

Reserved On 23.10.2024 vs State Of Himachal Pradesh on 5 November, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

2024:HHC:10670-DB

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 367 of 2007 Reserved on 23.10.2024 Date of Decision: 05.11. 2024

Sanjay Kumar @ Sanju ....Appellant Versus

State of Himachal Pradesh ....Respondent Coram Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? Yes.

For the Appellant : Mr. Vinay Thakur, Advocate.


 For the        Respondent/ :              Mr Pawan Kumar Nadda, Deputy
 State                                     Advocate General.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

and order dated 17.05.2007 passed by learned Special Judge,

Shimla (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 of Narcotic Drugs and

Psychotropic Substances Act,1985 (in short 'NDPS Act') and

sentenced to undergo rigorous imprisonment for 15 years, pay a

____________

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

2024:HHC:10670-DB fine of ₹1,50,000/-and in default of payment of the fine, to

undergo further rigorous imprisonment for two years. (The parties

shall hereinafter be referred to in the same manner as they were

arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan against the accused

before the learned Trial Court for the commission of an offence

punishable under Section 20 of the NDPS Act. It was asserted that

S.I. Sher Singh (PW-10), and Constable Rajesh Kumar (PW-2)

were present near Gumma in the official vehicle bearing

registration No. HP07A-0258, which was being driven by HC

Lokinder Singh (PW-3). Entry No. 13 dated 18.10.2006

(Ext.PW7/A) was recorded regarding their departure. A vehicle

bearing registration No. HP51B-0317 came towards the police

party from Fadesepul at about 4:00 a.m. The police signalled the

driver to stop it. The driver stopped the vehicle and revealed his

name as Sanjay Kanwar (the accused). He revealed that he was

going to Vikasnagar to sell cabbage. The cabbage was found

loaded in the rear of the vehicle. The police found a plastic bag

beneath the driver's seat. The police checked the bag and found

2024:HHC:10670-DB charas inside a polythene packet. The police weighed the charas

on the spot and found its weight to be three (3) Kg. The accused

could not give any satisfactory answer regarding the

transportation of Charas. The police obtained two samples of

twenty-five (25) grams each on the spot for chemical analysis.

Each sample was put in a separate cloth parcel and the remaining

2 kgs and 950 grams of charas was put in the polythene bag from

which it was recovered. The polythene bag was sealed in a

different parcel. Each sample parcel was sealed with three seal

impressions of seal "B" and the bulk parcel was sealed with five

seal impressions of seal "B". The NCB-I form (Ext. PW-1/D) was

filled on the spot in triplicate. A seal impression was taken on the

NCB-I form. Charas, the vehicle bearing registration No. HP51B-

0317 and its key were seized vide memo (Ext.PW-1/C). The police

arrested the accused and prepared the arrest memo (Ext.PW-1/E).

SI Sher Singh (PW-10) prepared the Rukka(Ext.PW-3/A) and sent

it to the Police Station through Constable Lokinder Singh (PW-3)

where F.I.R. (Ext.PW-9/A) was registered. SI Sher Singh (PW-10)

conducted the investigation and prepared the site plan

(Ext.PW-10/A). He prepared the memo of identification of the

charas(Ext.PW1/A). He brought the accused and the case property

2024:HHC:10670-DB to the Police Station and handed over the case property to MHC

Narbir Singh (PW-9). MHC Narbir Singh deposited the case

property in Malkhana and made an entry in the register (Ext.PW-

9/C). Cabbage was given to Pratap(PW-6) on Sapurdari vide

memo (Ext.PW-6/A). Suresh Kumar (PW-5) produced the

registration certificate (Ext.PW-5/A)of the vehicle, which was

seized vide memo (Ext.PW-6/A). SI Sher Singh prepared a Special

Report (Ext.PW-2/A) and sent it to SDPO Chopal through

Constable Rajesh Kumar (PW-2). He handed over the special

report to H.C. Nand Lal (PW-8), Reader to SDPO, Chopal on

21.10.2006, who further submitted the report to Dy.SP,

Chopal.MHC Narbir Singh (PW-9) sent the samples alongwith the

NCB-I Form and sample seal to CFSL, Chandigarh vide RC

No.25/06 dated 20.10.2006 (Ext. PW-9/D) through Constable

Sharif Uddin (PW-1). He deposited the case property at

the Central Forensic Science Laboratory (CFSL), Chandigarh and

handed over the receipt to MHC Narbir Singh (PW-9) on his

return. The result of Chemical Analysis (Ext. PZ) was issued in

which it was mentioned that the sample was of the charas and

indicated the presence of cannabinoids including

tetrahydrocannabinol and cystolithic hair. The statements of

2024:HHC:10670-DB the 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.

3. The learned Trial Court charged the accused with the

commission of an offence punishable under Section 20 of the

NDPS Act to which the accused pleaded not guilty and claimed to

be tried.

4. The prosecution examined 10 witnesses to prove its

case. Sharif Uddin (PW-1), Rajesh Kumar (PW-2), and HC

Lokinder Singh (PW-3) are the witnesses to the recovery.

Surinder Singh (PW-4) is the witness to the recovery of

the registration certificate. Suresh Kumar (PW-5) is the owner of

the vehicle, who produced the registration certificate of the

vehicle.Pratap (PW-6), proved that eighteen bags of cabbage were

loaded in the vehicle. HC Mohinder Singh (PW-7) proved the entry

in the daily diary. HC Nand Lal (PW-8) is the Reader to Dy.SP,

Chopal, to whom the special report was handed over. MHC Narbir

Singh (PW-9) was working as MHC with whom the case property

was deposited. SI Sher Singh (PW-10) headed the police party and

effected the recovery.

2024:HHC:10670-DB

5. The accused in his statement recorded under Section

313 of Cr.P.C. admitted that the police intercepted the vehicle

bearing registration No. HP51B-0317 and found eighteen bags of

cabbage loaded in it. He admitted that he was arrested by the

police. He denied the rest of the prosecution case. He stated that

Pratap Singh and Pawan Kumar were travelling in the vehicle as

the owners of the goods. He was falsely implicated to save Pratap

Singh and Pawan Kumar. However, no defence was sought to be

adduced.

6. The learned Trial Court held that the defence taken by

the accused that Pratap Singh and Pawan Kumar were travelling

with him was not established. Minor contradictions in the

testimonies of the prosecution witnesses were not sufficient to

discard them. The discrepancy in the weight of the sample was

possible due to the different scales used on the spot and in the

laboratory. The testimonies of prosecution witnesses were

consistent and there was no reason to disbelieve them. Hence, the

accused was convicted and sentenced as aforesaid.

7. Being aggrieved from the judgement and order passed

by the learned Trial Court, the accused filed the present appeal

2024:HHC:10670-DB asserting that the learned Trial Court failed to properly appreciate

the material on record. The police failed to trace the person from

whom the contraband was obtained by the accused. The plea taken

by the accused that he was made a scapegoat and real culprits

were not apprehended was wrongly rejected.The testimonies of

prosecution witnesses were not reliable. It is highly improbable

that the owner of the cabbage was not travelling in the vehicle.

The investigation was not fair; therefore, it was prayed that the

present appeal be allowed and the judgment and order passed by

the learned Trial Court be set aside.

8. An application (Cr.MP No. 473 of 2012) was filed before

this Court during the pendency of the proceedings for sending the

bulk parcel for analysis. This application was allowed vide order

dated 07.08.2012. A report of analysis was received. Subsequently,

another application (Cr.MP No. 244 of 2013) was filed to examine

ASI Kalyan Singh and MHC Kartar Singh but this application was

disallowed by the Court.

9. This Court held vide judgment dated 05.07.2013 that

the sample and bulk parcel did not match the weight of

the contraband seized by the police. There was a huge difference

2024:HHC:10670-DB in the weight. The substance could not be said to be charas.

Hence, the accused was acquitted of the commission of an offence

punishable under Section 20 of the NDPS Act.

10. The matter was carried in an appeal to the Hon'ble

Supreme. The Hon'ble Supreme Court set aside the judgment

passed by this Court and remanded the matter to this Court for

consideration afresh in view of the judgment of in Hira Singh

&Anr. Vs Union of India & Anr. (2020) SCC Online SC 382.

11. We have heard Mr Vinay Thakur, learned counsel for

the appellant/accused andMr Pawan Kumar Nadda, learned

Additional Advocate General for respondent-state.

12. Mr Vinay Thakur, learned counsel for the

appellant/accused submitted that the learned Trial Court had

failed to properly appreciate the evidence led before it. The

contradictions in the statements of the witnesses were major and

the learned Trial Court erred in holding that they were minor

discrepancies, which were bound to come with time. There was

a huge difference in the weight of the case property analysed in

the laboratory and stated to have been recovered from the spot.

Hence, the report of the analysis is not connected to the case

2024:HHC:10670-DB property stated to have been recovered on the spot. Therefore, he

prayed that the present appeal be allowed and the judgment and

order passed by the learned Trial Court be set aside.

13. Mr. Pawan Kumar Nadda, learned Additional Advocate

General for respondent/State supported the judgment and order

passed by the learned Trial Court and submitted that the learned

Trial Court had rightly held that the discrepancies in the

testimonies of prosecution witnesses were minor and bound to

come with time. The charas was weighed on the spot with the

conventional scale whereas it was weighed in the laboratory with

the help of an electric scale. The difference in the weight is not

sufficient to discard the prosecution case. Hence, he prayed that

the present appeal be dismissed.

14. We have given considerable thought to the

submissions made at the bar and have gone through the records

carefully.

15. It is an admitted case of the prosecution that the

police had not associated any independent witness;therefore, it

has become necessary to examine the testimonies of the

prosecution witnesses with due care and caution. When the

2024:HHC:10670-DB testimonies of the prosecution witnesses are seen carefully, the

following contradictions emerge:

i. Sharif Uddin (PW-1) stated in his cross- examination that Nakka was set up at a distance of 3 KMs from Fadesepul whereas Constable Rajesh Kumar (PW-2) stated in his cross-examination that Nakka was set up at a distance of 12-13 KMs from Fadesepul.

ii. Sharif Uddin (PW-1) stated in his cross- examination that the front part of the vehicle was checked by the police first and thereafter the rear part was checked. Constable Rajesh Kumar (PW-2) stated that both the parts of the vehicle were inspected simultaneously. Head Constable Lokender Singh (PW-3) stated that the back portion of the vehicle was checked first.

iii. Sharif Uddin (PW-1) stated that the gunny bag in which the polythene envelope was found was not taken into possession. Rukka(Ext.PW-3/A) and the seizure memo (Ext.PW-1/C) mention that one plastic bag and not a gunny bag was recovered from the vehicle.

iv. Sharif Uddin (PW-1) stated that the bag was visible from the outside. Constable Rajesh Kumar (PW-2) stated that he had seen the bag. Lokender Singh (PW-3) stated that the bag was seen first by the SHO.

2024:HHC:10670-DB v. Sharif Uddin (PW-1) admitted that two plastic bags containing charas were shown to him in the Court. Constable Rajesh Kumar (PW-2) stated that there was only one polythene bag containing Charas. He admitted that Ext.P-1 shown to him contained three polythene bags. HC Lokinder Singh (PW-3) stated that there was only one polythene bag inside the Katta. Rukka(Ext.PW-3/A) and the seizure memo (Ext.PW-1/C) mention that the plastic bag had one polythene bag inside it.

vi. Sharif Uddin (PW-1) stated in his cross- examination that it took about two hours to carry out the investigation on the spot. Rajesh Kumar (PW-2) stated that the investigation was completed on the spot in 30-45 minutes. HC Lokinder Singh stated that it took about one hour to carry out the investigation.

16. It was laid down by the Hon'ble Supreme Court in

Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC

OnLine SC 756 that the evidence of the prosecution must be tested

for its inherent consistency: consistency with the account of other

witnesses and consistency with undisputed facts. It was observed:

"21. .... Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making

2024:HHC:10670-DB any other evidence, including the medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

17. It was held in David Piper Vs. Mark Hales 2013 EWHC B1

(QB)that the Court has to see whether the statement of the

witness is consistent or not. It was observed: -

34. The guidance about how courts approach this is given in the extra-judicial writing of the late Lord Bingham of Cornhill approved by the courts is apposite. In "The Judge as Juror: The Judicial Determination of Factual Issues" published in "The Business of Judging", Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985 p 1-27, he wrote:

". . . Faced with a conflict of evidence on an issue substantially affecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties' lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable?

The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may

2024:HHC:10670-DB throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree. The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403at p

431. In this, he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full:

''Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses,

2024:HHC:10670-DB especially those who are emotional, and who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue . . .. more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following,

2024:HHC:10670-DB although their relative importance will vary widely from case to case:

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness's evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness.

The first three of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness's evidence conflicts with what is clearly shown to have occurred or is internally self- contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable, and not dishonest, but the nature of the case may effectively rule out that possibility.

The fourth test is perhaps more arguable. . . ."

35. The following guidance of Lord Goff in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at 215-6 is also helpful.

"And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas

2024:HHC:10670-DB S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1, when he said at p. 57: -

"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth." [emphases added].

That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence."

In that context, he was impressed by a witness described in the following terms.

"Although like the other main witnesses, his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable."

That is so important, and so infrequently done."

36. This approach to fact-finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as

2024:HHC:10670-DB Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 610, in paragraphs 11, 12 & 14:

11. By the end of the judgment, it is clear that what impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

12. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made by giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-

mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.

14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can

2024:HHC:10670-DB then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.

37. Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties' lawyers long after the events also distort the accurate picture even though they are meant to assist the court."

18. In the present case, the statements of the prosecution

witnesses are not consistent. The discrepancies in the statements

of the prosecution witness relate to the place of the Nakka:

whether it was 3 KM away or 12 KM away from Fadesepul, the

place from where the search commenced: whether the front

portion was searched first and/or the rear portion was searched

first, the nature of the bag from which the charas was recovered:

whether it was a gunny bag or a plastic bag,the number of

polythene bags inside the bag: whether they were one, two or

three and regarding the sighting of the bag: whether it was seen

2024:HHC:10670-DB by all, Constable Rajesh Kumar (PW-2) or the Investigating

Officer S.I. Sher Singh (PW-10). These inconsistencies are

intricately connected to the recovery because if the place of

the incident is not fixed with certainty, the identity of the bag

from which the recovery was effected is doubtful, the person who

saw the article is not certain and the number of the bags found in

the bag from which the recovery is effected is inconsistent, the

recovery of the charas itself becomes doubtful.

19. The learned Trial Court erred in holding that these

discrepancies were minor and bound to come with time. As per

the prosecution case, the recovery was effected on 19.10.2006.

Statements of witnesses were recorded from 07.05.2007 to

09.05.2007. Thus, there was not much time difference between

the recovery and the statements and the learned Trial Court erred

in discarding the discrepancies as having crept in due to lapse of

time.

20. As per the prosecution case, two samples of twenty-

five grams were taken out and the remaining 2.950 kg of charas

was put in the bulk parcel. This Court passed an order for the

analysis of bulk parcels and the report of the analysis was

2024:HHC:10670-DB received. It shows that the total weight of the bulk parcel was

1.376 grams and the net weight of the exhibit was 1.298 kg. The

weight of the sample parcel was 20 grams and the net weight of

the exhibit was 13.352 grams. The weight of the second sample

parcel was 24 grams and the net weight of the exhibit was 10.861

grams. Therefore, there was a huge difference between the

quantity stated to have been recovered and the quantity analysed

on the spot, the quantity of the exhibit was reduced by almost

half. There is no explanation for this huge difference in weight.

21. It has been stated inAnalysis of Evidence (Second edition

Terence Anderson, David Schum, and William Twining Cambridge

University Press) that before the reliance can be placed on the

tangible evidence, the link evidence has to be led to establish that

there was no tampering with the same. It has been stated on page

64:

"There are three major sources of ancillary evidence that may call into question the authenticity of tangible evidence. The first involves evidence that has been deliberately contrived to mislead others such as a forged document. Errors in recording, transmitting, or processing evidence are the second source. Tangible evidence may pass through many hands before it is offered at trial. The opportunities for processing or handling errors of various kinds

2024:HHC:10670-DB increase with the number of hands a tangible item passes through. Blood samples may be mislabeled or even substituted one for another. That is the reason for the requirement that there should be evidence establishing the chain of custody from the time the evidence was discovered (the bloody glove) or generated (an entry into a business record) until the time the evidence is presented at trial. If we do not know all of the links in a chain of custody, we cannot vouch for the authenticity of a tangible item. Finally, the witness whose testimony is offered to establish the authenticity of an item may be mistaken or untruthful."

22. Thus, it is essential to prove the integrity of the case

property.

23. It was laid down by this Court in Iacopo Lombardi vs

State of Himachal Pradesh 2002(2) Shim.LC 431, that the

prosecution has to establish the link evidence from taking

the sample till its analysis by the chemical examiner.Where the

sample of 25 grams was drawn on the spot and the weight of the

same in the laboratory was found to be 17 grams, link evidence is

missing. It was observed:-

"24. It may also be noticed here that the samples which were initially drawn as per the prosecution version weighed 25 gms. Each. However, the sample which was delivered in the Laboratory and was analysed weighed only 17.892 gms. Had the investigating agency sent to the Laboratory the sample of 25 gms., allegedly separated and sealed on

2024:HHC:10670-DB the spot, the weight of such sample could not be reduced to 17 and odd grams. This reduction of about 7 grams in the weight of the sample is also indicative of the fact that the sample had been tampered with."

24. It was held in Satnarayan vs State of H.P. 2009 (3) Shim.

LC 57 HP, where two samples of twenty grams were taken but the

Chemical Examiner found its weight 30.8116 grams, this huge

increase was sufficient to cast doubt regarding the prosecution

case. It was observed:

"10. Abovestated position apart, it is also doubtful if the report of the Chemical Examiner Ex. PW-10/D pertains to the sample of the stuff allegedly recovered from the appellant. According to the prosecution, two samples, each weighing 20 grams, had been separated. The sample, which was sent to the Chemical Examiner, contained 30.8116 grams of Charas. That means there was a substantial increase in the weight of the sample Charas. The increase was to the order of 54 per cent, approximately. Such a huge variation is not possible due to climatic reasons or the condition of the place, like dampness etc., where the samples might have been stored or on account of there being slight variation, while weighing the stuff or on account of some error in the weighing scale."

25. In the present case also, there is a huge difference not

only in the bulk but in the samples as well and it is difficult to

connect the substance analysed to the substance recovered on the

spot. Learned Trial Court erred in holding that there was only a

2024:HHC:10670-DB minor difference, which is attributable to the different scales used

on the spot and in the laboratory.

26. Thus, the statements of the prosecution witnesses

were discrepant and the discrepancies assume significance

because of the non-association of an independent person. There

was a huge difference in the weight of the substance stated to

have been recovered on the spot and the substance analysed in the

laboratory and the stuff analysed in the laboratory could not be