Himachal Pradesh High Court
Reserved On: 22.3.2025 vs State Of H.P on 5 May, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 7 of 2011
Reserved on: 22.3.2025
Date of Decision: 05.5.2025
Bali Ram ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Appellant : Mr. Arsh Chauhan, Advocate.
For the Respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgement
of conviction and order of sentence dated 17th January 2011 passed
by learned Sessions 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 the Narcotic Drugs and Psychotropic Substances Act
(NDPS Act) and was sentenced to undergo rigourous
improvement for one year, pay a fine of ₹5,000 and in default of
payment of fine to undergo further simple imprisonment for
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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three months for the commission of the aforesaid offence. (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 charge sheet against the
accused for the commission of an offence punishable under
Section 20 of the NDPS Act. It was asserted that ASI Shiv Kumar
(PW 15) received a secret information on 6 th March 2009 at about
4:30 PM that a person residing in Raghav Cottage, Sanjauli was
dealing in Charas and in case of search of his house, a huge
quantity of charas could be recovered. ASI Shiv Kumar entered an
entry number 11 (Ex. PW-10/A), and sent it to Addl.
Superintendent of Police Shri Anand Kumar Dhiman through
Constable Nikku Ram (PW2). ASI Shiv Kumar, HC Ramlal (PW1),
HHC Ramesh Chand (PW3), Constable Suresh Kumar (PW14), and
Lady Constable Saraswati proceeded towards Raghav Cottage.
They met Narayan Singh Baghania (PW4), Anuj Kuthiala (PW5),
and Chaman Sharma near the children's Park at Sanjauli. The
police associated them, and all of them went to Raghav Cottage.
ASI Shiv Kumar prepared an intimation regarding the reasons for
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not obtaining the search warrants for the house of the accused
and sent it to the Additional Superintendent of Police, Shimla,
through HHC Ramesh Chand (PW3). The police found the accused
present in his house. He identified himself as Bali Ram. The
Police disclosed the information received by them to the accused.
ASI Shiv Kumar expressed his intention to search the house of
the accused. He gave his personal search and the search of the
accompanying persons to the accused. Nothing incriminating
was found in their possession. A memo (Ex. PW4/B) was
prepared, which was signed by Chaman Sharma, Anuj Kuthiala,
Narayan Singh Baghania and the accused. ASI Shivkumar,
Chaman Sharma, Anuj Kuthiala and Narayan Singh went inside
the house of the accused. ASI Shiv Kumar searched the house and
found a polythene packet containing Charas in the form of sticks
underneath the pillow on the double bed of the accused. He
prepared a memo of identification (Ex. PW4/C). He weighed the
Charas and found its weight to be 370 grams. He separated two
samples of 20 grams, each, put the samples in two different cloth
parcels, and sealed them with four impressions of seal M each.
He put the remaining Charas in a separate cloth parcel, and
sealed the parcel with six seal impressions of seal M. ASI Shiv
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Kumar obtained sample seal M on a separate piece of cloth
(Ex.P3). He filled the NCB-1 form (Ex. PW-7/D) in triplicate and
put the seal impression on the form. ASI Shiv Kumar handed over
the seal to witness Narayan Singh after the use and prepared a
memo (Ex. PW4/D) regarding handing over the seal. He seized
the Charas vide seizure memo (Ex. PW4/A). He prepared a rukka
(Ex. PW7/A) and sent it to the police station, where an FIR
(Ex.PW-7/B) was registered. ASI Shiv Kumar conducted the
investigation. He prepared the spot map (Ex. PW4/F) and
recorded the statements of witnesses as per their version. He
arrested the accused and prepared a memo of arrest (Ex.PW-4/E).
He produced the accused and the case property before Chaman
Lal Bhatia (PW7), who resealed the parcels with seal T. He
obtained the specimen seal impression on a separate piece of
cloth (Ex. P4) and handed over the case property, sample seal,
and documents to HC Shiv Kumar (PW8). HC Shiv Kumar made
an entry in the Malkhana register at Serial Number 16
(Ex.PW8/A). He handed over the sample parcel, NCB-1 form in
triplicate, seizure memo, copy of FIR, and sample seal to Rattan
Lal (PW-9) with the direction to carry them to FSL Junga vide RC
No. 49/2009 (Ex. PW8/B). HC Rattan Lal deposited all the articles
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at FSL Junga and handed over the receipt to HC Shiv Kumar on his
return. SI Shiv Kumar prepared a special report (Ex. PW-10/B)
and handed it over to HHC Ramesh Chand with a direction to take
it to Additional Superintendent of Police Shri Anand Kumar
Dhiman. HHC Ramesh Chand handed over the special report to
the Additional Superintendent of Police. Additional
Superintendent of Police made his endorsement on the special
report and handed it over to his Reader, HC Hemendra Singh. A
result of chemical analysis (Ex. PW15/G) was issued, in which it
was mentioned that the entire mass of the exhibit was an extract
of cannabis and a sample of Charas. The statements of the
remaining witnesses were recorded as per their version, and after
the completion of the investigation, the chargesheet was
prepared and filed before the 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 17 witnesses to prove its
case. HC Ram Lal (PW1) and Constable Suresh Kumar (PW14) are
the official witnesses to the recovery. Narayan Singh (PW4) and
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Anuj Kuthiala (PW5) are the independent witnesses to the
recovery who did not support the prosecution's case. Constable
Nikku Ram (PW 2) and HHC Ramesh Chand (PW3) carried the
information to the Additional Superintendent of Police. Babu
Ram (PW6) is the owner of the house. SI Chaman Lal Bhatia
(PW7) signed the FIR and resealed the case property. HC Shiv
Kumar (PW8) was working as MHC with whom the case property
was deposited. Constable Rattan Lal (PW9) carried the case
property to FSL Junga. Head constable Haminder Singh (PW10)
was working as a Reader to the Additional Superintendent of
Police to whom the information and special report were handed
over. Inspector Kundan Singh (PW 11) prepared the challan.
Ganga Ram (PW 12) provided the details of the tenants residing in
the building. Constable Puran Chand (PW13) proved the entries in
the daily diary. Head Constable, Kuldeep Kumar (PW 17, wrongly
mentioned), was working as an MHC who sent the remaining
parcels to FSL Junga. Lady Constable Promila Devi (PW 18
wrongly mentioned) carried the remaining parcels to FSL Junga.
5. The accused, in his statement recorded under section
313 of Cr.PC, denied the prosecution's case in its entirety. He
stated that he was arrested by the police without any basis. He
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was innocent, and he was falsely implicated. He did not lead any
defence evidence.
6. The learned Trial Court held that the testimonies of
police officials corroborated each other. There was nothing in
their cross-examination to show that they were making false
statements. The mere fact that independent witnesses did not
support the prosecution's case was not sufficient to discard the
prosecution's case. The accused was proved to be in possession of
the house from where the recovery was made. The substance was
sent to FSL Junga, where it was found to be charas. The integrity
of the case property was proved. Hence, the accused was
convicted and sentenced as aforesaid.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused has filed the present appeal,
asserting that the learned Trial Court erred in convicting and
sentencing the accused. There were major contradictions in the
testimonies of the police officials. Police witnesses stated that
the independent witnesses met them near Children's Park,
Sanjauli, whereas the independent witnesses stated that they
were called to the spot. Even the description of the building was
mentioned differently. No independent witness from the locality
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was associated, which made the whole prosecution case suspect.
The entire investigation was conducted in the police station. The
police officials remained outside the room from which the
recovery was made, and they could not have been witnesses to
the actual recovery. The seal was not produced before the court.
No document showing that the accused was the tenant in the
building was produced. 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. I have heard Mr Arsh Chauhan, learned counsel for
the appellant/accused, and Mr Lokender Kutlehria, learned
Additional Advocate General for the respondent/State.
9. Mr. Arsh Chauhan, learned counsel for the
appellant/accused, submitted that the learned Trial Court erred
in convicting and sentencing the accused. There were major
contradictions in the testimonies of police officials. The
independent witnesses did not support the prosecution's case.
The integrity of the case property was not established. There was
non-compliance with Section 52A of the NDPS Act. Hence, 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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10. Mr. Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that there is no error
in the judgment and order passed by the learned Trial Court. It
was rightly held that all the witnesses could not have entered the
room. The official witnesses were standing outside and could
have witnessed the recovery of the charas from outside the room.
The fact that independent witnesses did not support the
prosecution's case is not sufficient to discard it. Therefore, he
prayed that the present appeal be dismissed.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. Narayan Singh (PW4) did not support the
prosecution's case. He was permitted to be cross-examined by
the learned Public Prosecutor. He denied in his cross-
examination that ASI Shiv Kumar approached him near the
Children's Park, Sanjauli. He denied that his search and search of
Shiv Kumar, Anuj and Chaman Sharma was conducted outside
the room. He denied that he, ASI Shiva Kumar and Anuj Kuthiala
entered the room. He denied that SI Shiv Kumar searched the
room and recovered a polythene packet containing the black
substance. He denied that ASI Shiv Kumar identified the
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substance as Charas. He denied that the weight of charas was
found to be 370 grams. He denied the previous statement
recorded by the police.
13. It is apparent from his examination that he has not
supported the prosecution's case, and no advantage can be
derived from his testimony by the prosecution.
14. Anuj Kuthiala (PW5) also did not support the
prosecution's case. He was also permitted to be cross-examined
by the learned Public Prosecutor. He denied in his cross-
examination that ASI Shiv Kumar associated him, Narayan Singh
and Chaman Sharma with a raiding party. He denied that all of
them went to the room of the accused, where the accused was
present. He denied that Shiv Kumar searched the room of the
accused and found a polythene packet containing charas in it. He
denied that the weight of the charas was formed to be 370 grams.
He denied that samples were taken out on the spot. He denied his
previous statement recorded by the police.
15. This witness has also not supported the prosecution's
case, and the prosecution cannot derive any advantage from his
testimony.
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16. The learned Trial Court had rightly held that the mere
fact that independent witnesses had not supported the
prosecution's case was not sufficient to discard it. However, the
testimonies of police officials are to be seen with due care and
caution in these circumstances.
17. It was specifically mentioned in the rukka that only
ASI Shiv Kumar and independent witnesses had gone inside the
room. HC Ram Lal and Constable Suresh Kumar specifically
stated in their examination- in- chief that they remained outside
the room. Therefore, they cannot be the witness to the actual
recovery stated to have been made inside the room. HC Ram Lal
(PW1) stated in his cross-examination that he did not enter the
room, and he could not tell about the goods and articles kept by
the accused inside the room or the spot from where the Charas
was found during the search. ASI Shiv Kumar disclosed that
charas was found beneath the pillow of the bed of accused.
Similarly, Constable Suresh Kumar (PW 14) stated in his cross-
examination that he did not enter the room and could not tell
about the goods and articles kept by the accused inside the room.
He volunteered to say that he was watching the proceedings from
outside. This part of his testimony that he was watching the
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proceedings from outside is not supported by any person and
cannot be relied upon.
18. The learned Trial Court held that the size of the room
was not big enough to accommodate all the officials. Hence, the
fact that the police official remained outside the room will not be
sufficient to cast doubt upon the prosecution's case. This finding
is without any basis. No person has deposed that the size of the
room was small and that all the police officials could not enter it.
ASI Shiv Kumar opted to keep the police officials outside the
room, and the prosecution cannot take advantage of their
testimonies when the independent witnesses have not supported
the prosecution's case.
19. Learned Trial Court held that the testimonies of the
police officials cannot be doubted. There can be no dispute with
this proposition of law. However, in the present case, the police
officials never witnessed the search and recovery. Therefore,
their testimonies cannot be used to conclude that any recovery
was made from the room of the accused.
20. Therefore, the prosecution is left with the testimony
of ASI Shiv Kumar to prove its case. His testimony is to be seen
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with due care and caution, considering that two independent
witnesses have not supported the prosecution case.
21. ASI Shiv Kumar (PW 15) stated that he received the
information and reduced it to writing (Ex.PW10/A). A copy of this
information was sent to Additional Superintendent of Police
through Constable Nikku Ram (PW2). When he reached the spot,
he prepared an intimation regarding the reason for not obtaining
the search warrant for the room of the accused, which was sent
through HHC Ramesh Chand to the Additional Superintendent of
Police, Shimla. His testimony shows that he had prepared two
informations-one before proceeding to the spot and one at the
spot. However, the prosecution has only proved one written
document (Ex. PW-10/A). HHC Ramesh Chand stated that he had
carried one piece of information to the Additional Superintendent
of Police from the spot, which was returned to him on the ground
that the Additional Superintendent of Police had already received
the information through Constable Nikku Ram. He returned both
copies of the information to ASI Shiv Kumar. Therefore, the
information was with ASI Shiv Kumar, and he has not assigned
any reason for not producing it on record. Additional
Superintendent of Police was also not examined to prove that
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HHC Ramesh Chand had carried any information to him, which
he had declined to receive. His Reader, Head Constable Haminder
Singh (PW10), did not say anything about the receipt of
information through HHC Ramesh Chand. He only deposed that
information was received through Constable Nikku Ram, and
HHC Ramesh Chand had brought a special report on 7 th March
2009. Ram Lal (PW1) who was stated to be present with the police
party has also not stated that any grounds were written before
entering the house or they were sent through HHC Ramesh
Chand. Hence, the testimony of ASI Shiv Kumar regarding
sending the information from the spot through HHC Ramesh
Chand has not been corroborated.
22. Ram Lal (PW1) stated in his cross-examination that
the accused was occupying three room set. Babu Ram (PW6), the
houseowner, admitted after he was permitted to be cross-
examined that he had rented out a single room set to the accused.
Thus, the identity of the house where the accused was stated to
be residing has also not been established.
23. Constable Nikku Ram (PW2) stated that the
information handed over to him was not put in any envelope
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whereas ASI Shiv Kumar (PW15) stated that the information was
handed over to Constable Nikku Ram in an envelope.
24. HHC Ramesh (PW3) stated in his cross-examination
that he met ASI Shiv Kumar in the police post Sanjauli, whereas
ASI Shiv Kumar (PW15) stated that HHC Ramesh was with him
when he reached police post Sanjauli at 8:45 pm.
25. 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 their credibility, which should not be adversely
prejudged, making 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."
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26. 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 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
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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 403 at 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 too much discussion of it
with others? Witnesses, 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 the motive is one
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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, 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. . . ."
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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 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."
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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
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
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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."
27. In the present case, the testimony of ASI Shiv Kumar
does not pass the test of consistency, and it is difficult to rely
upon his testimony, especially when independent witnesses have
not supported the prosecution's case, and the other police
officials never entered the room.
28. Hence, the evidence by the prosecution was not
sufficient to prove the prosecution's case that the accused was
found in possession of a polythene packet containing charas. The
accused is entitled to the benefit of doubt, which is extended to
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him, and it is held that the prosecution has not proved its case
beyond a reasonable doubt.
29. Once it is held that the prosecution's case regarding
the recovery is not satisfactory, the subsequent steps like
depositing of the case property with the MHC or sending it to the
FSL, for analysis will not help the prosecution because the case
property analysed in the laboratory cannot be connected to the
accused.
30. In view of the above, the prosecution has failed to
prove its case beyond a reasonable doubt, and the accused is
entitled to the benefit of doubt, which is extended to him.
Consequently, the judgment and order passed by the learned
Trial Court are ordered to be set aside, and the accused is
acquitted of the charged offence. The fine, if deposited be
refunded to the accused after the expiry of the period of
limitation, 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 of India.
31. In view of the provisions of Section 437-A of the Code
of Criminal Procedure [Section 481 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is
2025:HHC:12441
directed to furnish personal bond in the sum of ₹25,000/- with
one surety in the like amount to the satisfaction of the learned
Registrar (Judicial) of this Court/learned Trial Court, within four
weeks, which shall be effective for six months with stipulation
that in the event of Special Leave Petition being filed against this
judgment, or on grant of the leave, the respondent/accused, on
receipt of notice thereof, shall appear before the Hon'ble
Supreme Court.
32. A copy of this judgment, along with the records of the
learned Trial Court, be sent back forthwith. Pending
miscellaneous application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla)
Judge
5th May, 2025
(Chander)
