Himachal Pradesh High Court

Reserved On: 23.04.2025 vs State Of Himachal Pradesh on 6 May, 2025

2025:HHC:12657

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 143 of 2024 Reserved on: 23.04.2025 Date of Decision: 06th May, 2025

Rinku Tamang ....Appellant Versus State of Himachal Pradesh ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? No.

For the Appellant : M/s Kamal Kant and Kiran Dhiman, Advocates.


 For    the      Respondent :           Mr. Lokender Kutlehria, Additional
 /State                                 Advocate General


Rakesh Kainthla, Judge

The present appeal is directed against the judgment of

conviction and order of sentence dated 18.03.2024 passed by learned

Special Judge, Sundernagar, District Mandi, H.P. (learned Trial Court)

vide which the appellant (accused before learned Trial Court) was

convicted of the commission of an offence punishable under Section 21

of Narcotic Drugs and Psychotropic Substances Act (in

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

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short 'NDPS Act') and was sentenced to undergo rigorous

imprisonment for four years, pay a fine of ₹40,000/- and, in

default of payment of the fine, to undergo further rigorous

imprisonment for four months. (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 for the

commission of an offence punishable under Section 21 of the NDPS

Act. It was asserted that HC Sarang Sharma (PW-12), HC Samad

(PW-9), and Constable Sandeep Rana were on patrolling duty at

Salappar Bridge on 13.04.2023. An entry No.6 (Ext.P13/PW7) was

recorded regarding their departure. A bus bearing registration No.

CH01-GA-9975 came from Bilaspur toward Mandi at 1:00 a.m. The

police stopped the bus for inspection. The driver of the bus revealed

his name as Anil Kumar (PW-10), and the conductor identified

himself as Jagsir Singh. The police checked the passengers of the

bus in their presence. The accused occupied seat No. 9 and had a

backpack with him. The police questioned the accused about the

backpack, which frightened him. The police became suspicious and

enquired about the name of the accused in the presence of the

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driver, conductor, and HC Samad (PW-9). The accused identified

himself as Rinku Tamang. The police gave their personal search to

the accused, and nothing incriminating was found in their

possession. A memo (Ext.P15/PW9) was prepared. The police

checked the backpack (Ext.MO2) and found one PAN Card

(Ext.MO3), a T-shirt (Ext.MO4), and jeans (Ext. MO5) in the larger

pocket of the backpack. A transparent polythene packet (Ext.MO6)

tied with a knot was discovered in the pocket of the jeans. The

police examined the polythene packet and found heroin inside. The

police weighed the heroin and found its weight to be 14 (fourteen)

grams. The polythene was tied in the same manner, in which it was

recovered. The PAN Card, the T-shirt, and jeans were also placed in

the backpack in the same manner as they were recovered. The

backpack was placed in a cloth parcel (Ex.MO1), and the parcel was

sealed with six seals of impression '04 BTR'. The NCB-1 form

(Ext.P5/PW2) was filled in triplicate. The seal impression '04 BTR'

was applied to the form. A sample seal (Ext. P16/P-9) was placed on

the cloth parcel, and the seal was handed over to Anil Kumar (PW-

10) after its use. The NCB-1 form, cloth parcel, sample seal, and bus

ticket were seized vide memo (Ext.P17/PW9). Rukka

(Ext.P47/PW12) was prepared and sent to the Police Station,

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Sundernagar, District Mandi, H.P., where an F.I.R. (Ext.P3/PW-2)

was registered. SI Ramesh Kumar (PW-11) investigated the case. He

arrived on the scene at 6:00 a.m. HC Sarang Sharma (PW-12)

handed over Rukka, the memo of search, the NCB-1 form, the

seizure memo, the cloth parcel, the sample seal, the bus ticket, and

the accused to SI Ramesh Kumar (PW-11) vide memo (Ext.P-

28/PW11). SI Ramesh Kumar (PW-11) prepared the spot map

(Ext.P29/PW11). He recorded the statements of witnesses according

to their version. He arrested the accused vide memo (Ext.P31/PW11).

He produced the case file, the accused, and the case property before

SHO Bharat Bhushan (PW-6), who resealed the parcel with three

seals of seal impression CQ. Seal impression (Ext.P9/PW6) was

placed on a separate piece of cloth. Columns 9 to 11 of the NCB-1

form (Ext.P5/PW2) were filled by SHO Bharat Bhushan (PW-6).

Seal impression was also applied to the NCB-1 form. He handed

over the cloth parcel, NCB-1 form, and sample seal to MHC

Narotam Ram (PW-2), who made an entry in the Malkhana

He handed over the case property to Ramesh Kumar (PW-11) for

conducting the proceedings under Section 52-A of the NDPS Act.

Ramesh Kumar (PW-11) filed an application (Ext.P12/PW6) for

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certification of inventory (Ext.P11/PW6) before learned Additional

Chief Judicial Magistrate, Sunderngar, District Mandi, H.P. The

contraband was weighed, resulting in a total weight of 15.1 grams. It

was placed back in the same parcel from which it was taken. The

cloth parcel was sealed with nine seal impressions of seal 'A'. A

sample seal 'A' (Ext.P32/PW11) was taken on a separate piece of

cloth. Photographs (Ext.P33/PW11 to Ext.P36/PW11) of the

proceedings were taken. The learned Additional Chief Judicial

Magistrate, Sundernagar, District Mandi, H.P., issued a certificate

(Ext.P37/PW11) and passed an order (Ext.P38/PW11). The case

property was deposited with HC Narotam Ram (PW-2) on the same

day along with the documents. SI Ramesh Kumar (PW-11) prepared

a Special Report (Ext.P1/PW1) and handed it over to SDPO Dinesh

Kumar (PW-5), who made the endorsement on the Special Report

and forwarded it to his Reader HC Hari Prakash (PW-1). HC Hari

Prakash (PW-1) made an entry in the Special Report Register

(Ext.P2/PW1) and retained the Special Report on record. HC

Narotam Ram (PW-2) handed over the case property to HHC Kesar

Singh (PW-4) on 17.04.2023 vide RC No. 97/2023 (Ext.P7/PW2) with

the direction to carry it to SFSL, Junga. HHC Kesar Singh deposited

all the articles at SFSL, Junga, and handed over the receipt to HC

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Narotam Ram (PW-2) upon his return. The analysis result

(Ext.P14/PW8) was issued, indicating that the exhibit identified as

heroin was a sample of diacetylmorphine. The statements of the

remaining witnesses were recorded according to their version, and

after the investigation was completed, a challan was prepared and

presented before the learned Trial Court.

3. Learned Trial Court charged the accused with the

commission of an offence punishable under Section 21 of the NDPS

Act, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined 15 witnesses to prove its case. HC

Hari Parkash (PW-1) was posted as a Reader to the SDPO to whom

the Special Report was handed over. HC Narotam Ram (PW-2) was

working as an MHC with whom the case property was deposited.

HASI Ashwani Kumar (PW-3) brought the case property and the

result of analysis from SFSL Junga. HHC Kesar Singh (PW-4)

carried the case property to SFSL Junga for analysis. Dinesh Kumar

(PW-5) was working as SDPO to whom the Special Report was

handed over. Bharat Bhushan (PW-6) was working as SHO, who

resealed the case property and signed the F.I.R. HHC Vijay Chand

(PW-7), Constable Hem Raj (PW-13), LHC Teja (PW-14), and

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Constable Pitamber (PW-15) proved the entries in the daily

diary.MHC Vinay Chand (PW-8) was working as MHC to whom the

result of the analysis and the case property were handed over. HC

Samad (PW-9) is the official witness, and Anil Kumar (PW-10) is an

independent witness to the recovery. SI Ramesh Kumar (PW-11)

investigated the case. HC Sarang Sharma (PW-12) effected the

recovery.

5. The accused, in his statement recorded under Section

313 of CrPC., denied the prosecution's case in its entirety. He stated

that he was not travelling in the vehicle. The police obtained his

signatures by torturing him. The police had compelled him to get

his photographs taken. He claimed that he was innocent and that he

was falsely implicated. No defence was sought to be adduced by the

accused.

6. The learned Trial Court held that the testimonies of the

prosecution witnesses corroborated each other and there were no

major contradictions in them. No suggestion was given to the

witnesses that the sample sent to the laboratory had been tampered

with, and the integrity of the case property could not be doubted.

Anil Kumar (PW-10) also supported the prosecution's version. The

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link evidence was duly proved, therefore, the accused was convicted

and sentenced as aforesaid.

7. Feeling aggrieved and dissatisfied with the judgment of

conviction and order of sentence passed by the learned Trial Court,

the accused has filed the present appeal asserting that the learned

Trial Court erred in convicting the sentencing the accused.

Independent witnesses did not support the prosecution's version.

The seizure memo was not proven. The signatures of the witnesses

were obtained at the Police Station. Police officials admitted that a

nail-cutter and a gas lighter were not recovered at the time of

recovery, but they were found in the laboratory. This made the

integrity of the case property doubtful. It was not proved that the

accused was travelling in the bus. The total weight of the heroin

was found to be 15.1 grams during the proceedings under Section

52-A of the NDPS Act, whereas it was found to be 14 grams on the

spot. The increase in the case property made the prosecution's case

suspect. Therefore, it was prayed that the present appeal be allowed

and the judgment of conviction and order of sentence be quashed.

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8. I have heard M/s Kamal Kant and Kiran Dhiman, learned

counsel for the appellant/accused, and Mr. Lokender Kutlehria,

learned Additional Advocate General for the respondent/State.

9. Mr. Kamal Kant, learned counsel for the

appellant/accused, submitted that there are various contradictions

in the testimonies of the prosecution witnesses. Learned Trial Court

erred in relying upon these testimonies to convict and sentence the

accused. The integrity of the case property was not established.

Nail-cutter and a gas lighter were found in the laboratory, for

which no explanation has been provided. The learned Trial Court

did not consider these aspects. Hence, he prayed that the present

appeal be allowed and the judgment of conviction and order of

sentence passed by the learned Trial Court be set aside.

10. Mr. Lokender Kutlehira, learned Additional Advocate

General for the respondent/State, submitted that contradictions in

the testimonies of the prosecution witnesses are minor, which were

bound to come with time. Nail-cutter and a gas lighter could have

been inadvertently put inside the bag during the inventory

proceedings; nothing much can be made out of the same.

Therefore, he prayed that the present appeal be dismissed.

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11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. Anil Kumar (PW-10) stated that police checked the

luggage of the passengers. They called him and told him that they

wanted to check the bag of a boy who was sitting on the bus.

Conductor Jagsir Singh was also present on the bus. The police gave

their search to the accused, and nothing incriminating was found in

their possession. The police searched the bag and found one PAN

Card, a T-shirt and Jeans in one pocket, and one polythene packet,

which was opened and was found to contain the narcotic substance.

It was weighed and its weight was found to be 14 grams. All the

articles were put in the same manner in which they were recovered.

The backpack was put in a cloth parcel, and the parcel was sealed.

The seal was handed over to Jagsir Singh after its use. He identified

his signatures on various documents. He stated in his cross-

examination that his statement was typed in his presence. The

police had not seized the Registration Certificate, documents and

route permit of the bus from him. The Police were in uniform. He

corrected to say that he was not sure whether the police officials

were in uniform or not. However, they disclosed their identity to

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him. The police called him inside the bus after five minutes. He

denied that police said a bag was recovered from the accused. The

accused had not taken his personal search but perhaps he had taken

the personal search of the police officials. The police were doing

the routine checking of the luggage. He was outside the bus, but

was looking inside the bus from the window glass. The police asked

the passengers to be witnesses, but they declined. The police had

not personally searched the accused. The recovered substance was

checked with a kit which looked like a laboratory kit. The bus

remained on the spot from 1:00 AM till 7:00-8:00 a.m.The

passengers were sent in different buses. The first document was

written at 2:00 a.m. The police officials boarded the vehicle from

the front and the rear. One police official left the spot at 3:00-4:00

a.m. He signed the documents after going through them. He did

not know the name of the police official who had written the words

on the parcel. He denied that he was deposing falsely, and no

recovery was effected from the accused.

13. It is apparent from the examination of this witness that

he has supported the prosecution's case in material particulars. He

categorically deposed about the search of the backpack, and the

recovery of the various articles including the polythene packing

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containing heroin. Therefore, the submission that the

prosecution's case became doubtful because Anil Kumar (PW-10)

has not supported it is not acceptable.

14. HC Samad (PW-9) and HC Sarang Sharma (PW-12) also

supported the prosecution's case.

15. It was submitted that the Drug Detection Kit was not

mentioned in the entry (Ext.P13/PW7), and it is highly doubtful that

police had a Drug Detection Kit with them. This submission is not

acceptable. HC Sarang Sharma (PW-12) specifically stated in his

cross-examination that the Drug Detection Kit was in the I.O. kit

and was not issued in the name of any police official. The entry in

the daily diary specifically mentions that the I.O. kit was with the

police officials. Since the Drug Detection Kit was part of the I.O. kit,

therefore, it was not separately required to be mentioned. Further,

Anil Kumar (PW-10) specifically stated that the recovered

substance was tested with some kit, which looked like a laboratory

kit. Therefore, the availability of the Drug Detection Kit on the spot

is duly established, and the prosecution's case cannot be doubted

because the Drug Detection Kit was not mentioned in the daily diary

entry.

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16. HC Sarang Sharma (PW-12) stated in his cross-

examination that the particulars on the parcel were written by HC

Samad (PW-9) on the spot, and he had only attested the parcel on

the spot. HC Samad (PW-9) stated in his cross-examination that

the contents of the parcel in portion B to B were written by the

Investigating Officer on the spot. It was submitted that this is a

major contradiction in the statements of the police officials. This

submission is not acceptable because it is a minor contradiction

regarding the detail. Further, the contradiction is apparent and not

real because portion B to B was not shown to the Investigating

Officer to elicit his opinion whether these were written by him as

stated by HC Samad or not. HC Sarang Sharma (PW-12) deposed

about writing the contents on the parcel, and it is also possible that

besides the contents of the parcel, some portion was also written by

the Investigating Officer. Unless the Investigating Officer is asked

about the same, it cannot be said that the statement of HC Samad

(PW-9) that the contents of the parcel in portion B to B were

written by the Investigating Officer is incorrect.

17. It was submitted that HC Samad (PW-9) deposed that

photographs were taken by him, whereas HC Sarang Sharma

(PW12) stated that he had taken the photographs. This is another

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contradiction. This submission is not acceptable because this is a

minor contradiction which is bound to come with time. Further, HC

Sarang Sharma (PW-12) stated that he had issued a certificate

under Section 65-B of the Indian Evidence Act in respect of the

photography conducted on the spot, which bears his signature in a

red circle 'A'. HC Samad (PW-9) stated that had had clicked the

photographs with the mobile phone of HC Sarang Sharma (PW-12).

The certificate (Ext.P48/PW12) mentions that photography was

conducted by HC Samad (PW-9) with the mobile phone of HC

Sarang Sharma (PW-12). The camera of the mobile phone was

functioning properly, and no tampering was made with the

photographs. The certificate clearly mentions that photographs

were taken by HC Samad (PW-9), and the statement of HC Sarang

Sharma cannot be read to mean that he had taken the photographs.

He was deposing about the issuance of the certificate issued by him.

Therefore, this submission will not help the accused.

18. Learned Trial Court rightly held that there were no

major contradictions in the testimonies of police officials to make

them doubtful and the testimonies of the police officials cannot be

rejected simply because they happened to be police officials. The

presumption under Section 114 of the Indian Evidence Act regarding

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the regularity of the official acts applied to the acts of the police

officials as well. Therefore, the learned Trial Court had rightly

relied upon the testimonies of police officials.

19 The case property was produced before the learned

Additional Chief Judicial Magistrate, Sundernagar, District Mandi,

H.P., who passed an order (Ext.P38/PW11). It was mentioned in

para-6 of the order that the parcel was opened and it had a

backpack containing a PAN Card, a T-shirt, jeans, a lighter and a

transparent polythene tied on the top. The weight of the

contraband was found to be 15.1 grams as against 14 grams. All the

articles were put in the backpack and the backpack was put in a

parcel.

20. The parcel was sent to SFSL, and the result of the

analysis (Ext.P14/PW8) was issued. It was mentioned in column

No.10 that on opening the sealed cloth parcel, the exhibit stated as

heroin, in the form of yellowish brown coloured irregular shape

hygroscopic masses in transparent knotted poly packet in right

pocket of blue coloured denim pants, was found in grey coloured

synthetic zip bag alongwith the blue coloured T-shirt, PAN card of

Rinku Tamang, yellow coloured lighter and nail-cutter.

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21. Seizure memo (Ext.P17/PW9) does not mention lighter

and nail-cutter but only mentions PAN card, T-shirt,jeans and

polythene pouch containing heroin. No witness provided any

explanation regarding the presence of a lighter and nail-cutter in

the parcel.

22. HC Samad (PW-9), Anil Kumar (PW-10) and HC Sarang

Sharma (PW-12) did not state about the recovery of the gas lighter

and nail-cutter from the accused. Anil Kumar (PW-10) stated in his

cross-examination that he did not remember whether any nail-

cutter and lighter were found in the bag. SI Ramesh Kumar (PW-11)

stated in his cross-examination that he had not put any gas lighter

or nail-cutter in the sealed parcel. HC Narotam Ram (PW-2) stated

that the Investigating Officer had not told him about the recovery of

the gas lighter and nail cutter. Dy.SP Bharat Bhushan (PW-6)

stated in his cross-examination that he had not put any gas-lighter

and nail cutter in the parcel. He had not added anything to the

contraband. Thus, the prosecution witnesses are silent as to how

the gas lighter and nail-cutter were found in the parcel.

23. It has been stated in Analysis of Evidence (Second edition,

Terence Anderson, David Schum, and William Twining,Cambridge

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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 wevidence. 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 increase with the number of hands a tangible item passes through. Blood samples may be mislabeled or even substituted for one 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." (Emphasis supplied)

24. It was held by the Division Bench of this Court in Sansar

Chand Vs. State of Himachal Pradesh 2023:HHC:10188-DB, that the

prosecution has to prove the integrity of the case property.It was

observed as under:

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15. In State of Rajasthan vs. Daulat Ram, AIR 1980 (SC) 1314, the Hon'ble Supreme Court held that when a sample changed several hands, the entire chain needs to be established with utmost clarity.

16. In Valsala vs. State of Kerala, 1993 Supp. 3 SCC 665, it was held by the Hon'ble Supreme Court that the prosecution was required to establish that during the entire period, when samples were lying with the prosecution, it were lying with whom and whether it were in safe custody. The Officer in-Charge was required to be examined. The safe custody of samples for the entire duration was required to be established.

17. In State of Gujarat vs. Ismail U Haji Patel, 2003 (12) SCC 291 emphasized that in a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to when they had been dispatched or received in the laboratory is a matter of great importance and a noncompliance thereof could also result in the trial being vitiated. It shall be apt to reproduce the relevant observations as contained in paras 5 and 6 of the judgment, which read as under:-

"5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court, after analysing the evidence on record, came to hold that the identity of the articles sent for analysis was not established, and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala, the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper and the samples sent to the Chemical Analyst related to the seized articles form.

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6. Further, there was nothing brought on record to show as to under whose directionthe samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgment of the High Court does not warrant any interference in our hands and the appeal is dismissed".

18 In State of Rajasthan vs. Gurmail Singh, 2005 (3) SCC 59, the Hon'ble Supreme Court found the link evidence adduced on behalf of the prosecution to be unsatisfactory and, on the basis of such evidence, was pleased to uphold the acquittal.

19 The issue of safe custody of contraband goods assumes significant and seminal importance has been appropriately dealt with in State of Rajasthan vs. Tara Singh, 2011 (11) SCC 559, where the Hon'ble Supreme Court succinctly observed as under:-

"6. We must emphasize that in a prosecution to the Act, the question as to how and where the samples had been stored or as to when they had despatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised which cast a doubt on the prosecution's story. We,

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accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged."

20 In State of Uttar Pradesh vs. Hansraj alias Hansu (2018) 18 SCC 355, it was held by the Hon'ble Supreme Court that there is delay in producing the samples of the contraband substance in the court and when the evidence is that the same were kept in the police station, the prosecution has to adduce evidence to show that as to how and in what condition, samples were preserved at the police station.

21 In Vijay Pandey vs. State of U.P., 2019 (SC) 3569, the Hon'ble Supreme Court held that mere production of a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and the one tested have to be correlated. It shall be apt to reproduce relevant observations as contained in paras 8 and 9 of the judgment, which read as under:-

"8. The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from a failure to produce the seized sample itself. In the circumstances, the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The samples seized and those tested have to be correlated. The observations in Vijay Jain vs. State of Madhya Pradesh, (2013) 14 SCC 527, as follows, are considered relevant:

"10. On the other hand, on a reading of this Court's judgment in Jitendra's case, we find that this Court has taken a view that in the trial for an offence under the NDPS

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Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in the case of Ashok (supra), this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its nonproduction and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant."

9. In Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, it was observed:

"12. Last but not least, the alleged narcotic powder seized from the possession of the accused, including the appellant, was never produced before the trial court as a material exhibit, and once again, there is no explanation for its nonproduction. There is, thus, no evidence to connect the forensic report with the

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substance that was seized from the possession of the appellant or the other accused."

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

property before the reliance can be placed upon the prosecution's

case. In the present case, the integrity of the case property has

become suspect because of the presence of a gas lighter and a nail

cutter in the parcel in the laboratory. Therefore, it is not possible to

rely upon the report of analysis that the parcel contained heroin.

26. Learned Trial Court held that the defence version

regarding the tampering with the case property could not be relied

upon because no such suggestion was given to the witnesses

regarding the tampering. Reliance was placed upon State of H.P. Vs.

Pardeep Kumar, etc. S.L.P.(Crl.) Nos 7105-7106 of 2015, decided on

16.02.2018:2018 INSC 16. This was a misreading of the judgment

because the Hon'ble Supreme Court had found that the sample

analysed by the Chemical Analyst was not tampered but only the

case property was torn due to be bulky condition and nails in the

stool on which it was kept.

27. In the present case, the nail-cutter and lighter were

found by the Chemical Analyst himself, for which no explanation

was provided. This by itself is sufficient to show that the integrity of

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the case property was doubtful and did not require any suggestion.

Hence, the prosecution's case was liable to be rejected due to the

presence of these articles and no suggestions were required to be

given in the present case.

28. Therefore, the learned Trial Court erred in convicting

and sentencing the accused and the judgment of conviction and

order of sentence are not sustainable. Hence, the present appeal is

allowed and the judgment of conviction and order of sentence

passed by the learned Trial Court are ordered to be set aside and the

accused is acquitted of the commission of the charged offence. The

accused be released, forthwith from custody, if not required in any

other case. The fine amount, if deposited, be refunded after the

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.

29. 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 appellant/accused is directed to furnish

his personal bond in the sum of ₹25,000/- with one surety in the

like amount to the satisfaction of the learned Registrar (Judicial) of

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this Court/learned Trial Court, within a period of 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 appellant/accused, on receipt of notice thereof,

shall appear before the Hon'ble Supreme Court.

30. The record of the learned Trial Court be returned with a

copy of this judgment for the information of the learned Trial

Court.

31. Appeal stands disposed of along with pending

miscellaneous application(s), if any.

(Rakesh Kainthla) Judge

06th May, 2025.

(ravinder)

DN: C=IN, O=HIGH COURT OF HIMACHAL

KARAN PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e22 5878f23c9ea27b281046985b3b1fe0b75,

SINGH PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec93937 5291962d0d90d094876bd59591426c0b1ce6 51f01f, CN=KARAN SINGH GULERIA

GULERIA Reason: I am the author of this document Location:

Date: 2025-05-06 14:18:48