[Cites 6, Cited by 0]
Punjab-Haryana High Court
Ram Niwas vs State Of Punjab on 28 April, 2026
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRA-S No.150-SB of 2005
Reserved on: 20.04.2026
Pronounced on: 28.04.2026
Uploaded on: 29.04.2026
Whether only operative part of the judgment is
Pronounced or the full judgment is pronounced: operative part/full judgment
Ram Niwas
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MS. JUSTICE MANDEEP PANNU
Argued by:- Ms. Prachi Gupta, Advocate
for the appellant.
Mr. Sahil Chowdhary, AAG, Punjab.
*****
MANDEEP PANNU, J.
1. The present appeal has been filed against the judgment/order
dated 15.12.2004 passed by learned Judge, Special Court, Patiala in S.C.
No.68-T of 27.09.2004/29.08.2002, arising out of FIR No.59 dated
01.06.2002, under Section 18 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, registered at Police Station Julkan, whereby learned
Special Court held the appellant guilty for the offence punishable under
Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985
and sentenced him to undergo rigorous imprisonment for a period of seven
years, along with a fine of Rs. 10,000/-, and in default of payment of fine,
to further undergo rigorous imprisonment for a period of one year.
authenticity of this order/judgment
2. Briefly stated, the case of the prosecution is that on
01.06.2002, the accused-appellant Ram Niwas was intercepted by a police
party headed by Inspector Shamsher Singh of CIA Staff, Patiala, near the
canal bridge of Village Mehon while he was coming from the side of
Village Kishanpura on a metalled road towards Village Mehon, carrying a
small bag in his right hand. The police party was present there in
connection with checking of suspected persons and was joined by
independent witness Karam Singh. On seeing the police party, the accused
allegedly attempted to turn back but was apprehended on suspicion.
Inspector Shamsher Singh suspected that the bag carried by the accused
contained contraband and apprised him of his right to be searched before a
Magistrate or a Gazetted Officer. The accused opted to be searched in the
presence of a Gazetted Officer, whereupon DSP Satbir Singh Atwal (City-
II), Patiala was called to the spot through a wireless message. After
reaching the spot, the DSP disclosed his identity and again offered the
accused the option of being searched before a Magistrate, but the accused
expressed confidence in the DSP, whereafter his consent statement was
recorded. On the directions of the DSP, the bag carried by the accused was
searched and was found to contain opium wrapped in glazed paper. Two
samples of 10 grams each were separated and converted into parcels, while
the remaining opium on weighment was found to be 2 kilograms, which
was also converted into a separate parcel after being placed in a box. All
the three parcels were sealed with the seal bearing impression "SS" of the
Investigating Officer as well as the seal of the DSP. Specimen seal chit was
authenticity of this order/judgment
prepared and the seal after use was entrusted to independent witness Karam
Singh, while the DSP retained his own seal. Upon personal search of the
accused, currency notes amounting to Rs.90/- were recovered and taken
into possession vide memo. Memo of grounds of arrest was prepared and
ruqa was sent on the basis of which the FIR was registered. Thereafter, on
return to the police station, the case property was deposited with the MHC
in intact condition. On the next day, the case property was produced by ASI
Jaipal Singh before the Ilaqa Magistrate and thereafter re-deposited with
the MHC. The sample parcel was later sent in intact condition to the office
of FSL, Punjab, Chandigarh, and after receipt of the FSL report and
completion of investigation, the challan was presented against the accused.
3. After presentation of the challan and compliance with the
provisions of Section 207 Cr.P.C., the trial Court found a prima-facie case
and framed charges against the accused under Section 18(c) of the NDPS
Act, 1985, to which he pleaded not guilty and claimed trial. In order to
substantiate its case, the prosecution examined PW1 HC Gurmeet Singh,
Moharrir Head Constable of the Malkhana; PW2 Constable Jaswant Singh,
who took the sample parcel to the office of FSL; PW3 ASI Jaipal Singh,
witness to the recovery memo and who produced the case property before
the Ilaqa Magistrate; and PW4 Inspector Shamsher Singh, the Investigating
Officer of the case. Thereafter, the prosecution closed its evidence after
tendering the report of the FSL in evidence. The incriminating
circumstances appearing against the accused were then put to him in his
statement recorded under Section 313 Cr.P.C., wherein he denied the
authenticity of this order/judgment
allegations and pleaded false implication, claiming that he had already been
taken into custody prior to 01.06.2002 and that the present case had,
subsequently, been planted upon him. In defence evidence, the accused
examined DW1 C. Budh Gir, who produced the DDR register, and DW2
Ramesh, who was examined to support the plea that the accused had been
taken from his house. After hearing learned counsel for the parties and
appreciating the evidence available on record, learned trial Court held that
the story put-forth by the prosecution fully inspired confidence.
Consequently, the accused was held guilty for commission of the offence
punishable under Section 18(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, and was accordingly convicted and sentenced as
stated hereinabove.
4. Feeling aggrieved by the aforesaid judgment of conviction and
order of sentence, the present appeal has been preferred by the appellant.
5. Learned counsel for the appellant has vehemently argued that
the very first circumstance which dents the prosecution case and renders
the recovery proceedings doubtful is with regard to the consent memo
Ex.PD. It has been contended that the said memo was, in fact, not a consent
memo but a dissent memo. Learned counsel submits that in the heading of
the memo, the word written in Punjabi was originally
"ਅਸਿਹਮਤੀ"(dissent), however, later on white correction fluid appears to
have been applied on the first letter of the word so as to convert it into
"ਸਿਹਮਤੀ"(consent). Not only this, even in the body of the memo at two
places, correction fluid has been used to alter the contents so as to depict
authenticity of this order/judgment
that the accused had reposed confidence in the Gazetted Officer. According
to learned counsel, this clearly shows that when the offer was initially made
to the accused-appellant that he could get his search conducted in the
presence of a Magistrate or a Gazetted Officer, the accused did not repose
confidence in the DSP and his dissent statement was recorded and memo
was accordingly prepared. However, subsequently, in order to overcome
the legal consequences flowing therefrom, the same was converted into a
consent memo. It has been argued that the said document is available on
record as Ex.PD, and such interpolation in a vital document strikes at the
root of the prosecution case. Learned counsel further submits that this
material discrepancy has been lightly brushed aside by learned trial Court
by merely observing that the ink remover fluid had been applied at two
places in Ex.PD only for rectifying a clerical mistake and for no other
purpose and, therefore, no benefit could be derived by the defence
therefrom. According to learned counsel, the said observation is wholly
erroneous. It is argued that compliance of Section 50 of the NDPS Act is a
valuable safeguard available to an accused and the consent/dissent memo
assumes immense significance in order to establish whether the accused
had voluntarily waived his right of search before a Magistrate. Any
interpolation in such a crucial document creates serious doubt regarding the
fairness and authenticity of the recovery proceedings.
6. Per contra, learned State counsel has argued that the correction
in the memo is merely clerical in nature. It has been submitted that
admittedly white correction fluid was applied on the first letter of the word
authenticity of this order/judgment
"ਅਸਿਹਮਤੀ"in Punjabi script and at one place in the body of the document,
however, the same was done only to rectify an inadvertent clerical mistake.
It has further been argued that learned trial Court has rightly observed that
no undue advantage can be granted to the accused on account of such
minor correction, particularly when the prosecution witnesses have
consistently deposed that the accused had reposed confidence in the
Gazetted Officer and consented to the search being conducted in the
presence of DSP Satbir Singh Atwal.
7. This Court has thoughtfully considered the rival submissions
and finds considerable force in the contention raised on behalf of the
appellant. The memo in question is not an ordinary procedural document
but a crucial piece of evidence intended to demonstrate due compliance of
the mandatory safeguards embodied under Section 50 of the NDPS Act.
The right of an accused to be searched before a Magistrate or a Gazetted
Officer is a substantive safeguard meant to ensure transparency and
fairness in the search proceedings. Therefore, the document recording the
response of the accused must inspire complete confidence and should be
free from any suspicion or interpolation.
8. In the present case, it is not disputed that white correction
fluid was applied on the first letter of the relevant Punjabi word in the
heading of the memo and also at two places in the body of the document.
The prosecution has failed to furnish any convincing explanation as to why
such corrections were required in a document of such significance. Had it
been a simple clerical mistake, the natural course would have been to
authenticity of this order/judgment
record a fresh memo or at least obtain signatures of the accused and
witnesses acknowledging such correction. No such precaution was taken.
The unexplained alteration creates a legitimate apprehension that the
original document may not have reflected the actual intention of the
accused.
9. The prosecution was required to establish beyond reasonable
doubt that the accused had consciously waived his valuable right under
Section 50 of the NDPS Act. However, once the very document recording
such waiver becomes doubtful due to visible alterations, the benefit of such
doubt must necessarily go to the accused. Learned trial Court, in the
opinion of this Court, erred in treating the said discrepancy as insignificant.
The alteration in the consent memo goes to the root of the prosecution story
and materially affects the credibility of the alleged recovery proceedings.
Consequently, this Court is of the considered view that the prosecution has
failed to prove strict and unimpeachable compliance of the mandatory
procedural safeguards, thereby rendering the recovery proceedings
doubtful.
10. It is next contended by learned counsel for the appellant that
the discrepancies in the prosecution case are not confined only to the
consent memo, rather similar irregularities are apparent in Ex.PF, i.e the
memo pertaining to the personal search of the accused, which further
demolishes the prosecution version. Learned counsel submits that the said
document contains visible cuttings, overwriting and alterations, which
clearly indicate that the documents were not prepared at the spot during the
authenticity of this order/judgment
alleged recovery proceedings and were subsequently manipulated merely to
complete the paperwork. It has been argued that at point 'B' on Ex.PF,
where the name/signatures of the accused were allegedly required, the
writing appears to have been struck off and no signatures of the accused are
available at the said point. Thereafter, at point 'D', signatures purportedly
of the accused appear, though at the same place the words "CIA Patiala"
have been mentioned. Further, at point 'E', the words "CIA Patiala" appear
to have been written in a different ink, thereby creating further doubt
regarding the genuineness of the document. Learned counsel submits that
such repeated alterations and interpolations in official documents reveal
that the alleged proceedings were not conducted in the manner projected by
the prosecution and that the documents were prepared subsequently while
sitting in the police station.
11. Per contra, learned State counsel has argued that although the
Investigating Officer, during his cross-examination, admitted the existence
of such cuttings and corrections in Ex.PF, the same were merely clerical
mistakes and do not strike at the root of the prosecution case. It has been
contended that minor discrepancies of this nature are bound to occur during
preparation of documents at the spot and cannot be made a ground to
discard an otherwise reliable prosecution case.
12. This Court has considered the rival submissions and finds
merit in the argument raised on behalf of the appellant. A perusal of Ex.PF
clearly reflects multiple unexplained cuttings and alterations. At point 'B',
where the name/signatures of the accused were expected, the writing has
authenticity of this order/judgment
been visibly struck off and no satisfactory explanation has been furnished
by the prosecution as to why such cutting was required. Likewise, at point
'D', signatures of the accused appear at a place which creates ambiguity
with regard to the actual execution of the document. Further, the words
"CIA Patiala" appearing at point 'E' are evidently written in a different ink,
which lends credence to the defence argument that additions were made
subsequently.
13. These discrepancies cannot be brushed aside as mere clerical
mistakes, particularly when similar alterations had already been noticed by
this Court in the consent memo. The repeated occurrence of cuttings,
overwriting and use of different ink in material documents creates a serious
dent in the prosecution story. In cases arising under the NDPS Act, where
stringent punishments are prescribed, the prosecution is expected to
establish complete fairness and transparency in the procedural safeguards
adopted during recovery proceedings. The documentary evidence must be
unimpeachable and free from suspicion.
14. In the present case, the cumulative effect of the alterations in
Ex.PF clearly raises a legitimate doubt regarding the authenticity of the
proceedings allegedly conducted at the spot. The possibility that the
documents were prepared later merely to complete formalities cannot be
ruled out. The prosecution has failed to furnish any convincing explanation
for these material irregularities. This Court is, therefore, of the considered
opinion that learned trial Court committed an error in treating these
discrepancies as insignificant. Rather, these irregularities materially affect
authenticity of this order/judgment
the credibility of the prosecution case and further strengthen the defence
plea that the alleged recovery proceedings were not conducted in the
manner asserted by the prosecution.
15. It has been further contended by learned counsel for the
appellant that there are additional serious infirmities in the prosecution case
which further render the alleged recovery doubtful. Learned counsel
submits that after the alleged recovery, the case property was never
produced before the Station House Officer (SHO) for affixing his seal or
for ensuring safe custody in accordance with the established procedure. It
has been argued that such a safeguard is intended to rule out the possibility
of tampering with the case property and to maintain the sanctity of the
chain of custody. Learned counsel further contends that although the
prosecution has alleged that the search was conducted in the presence of
DSP Satbir Singh Atwal, who was the Gazetted Officer called at the spot,
the said DSP was not examined by the prosecution during trial. Likewise,
Karam Singh, the alleged independent witness joined at the time of
recovery proceedings, was also withheld from the witness box without any
plausible explanation. According to learned counsel, non-examination of
these material witnesses creates a serious dent in the prosecution case,
particularly when the entire recovery proceedings have already become
doubtful on account of the material alterations in the documentary record.
16. Per contra, learned State counsel has argued that mere non-
production of the case property before the SHO would not by itself vitiate
the prosecution case, particularly when the prosecution has otherwise led
authenticity of this order/judgment
evidence regarding deposit of the case property with the MHC and dispatch
of the sample parcel to the Forensic Science Laboratory in intact condition.
It has further been contended that non-examination of the independent
witness and the Gazetted Officer is also not necessarily fatal in every case,
as conviction can be sustained on the testimony of official witnesses if their
statements are otherwise found to be trustworthy and reliable. Learned
State counsel submits that no adverse inference should be drawn merely
because every witness associated during investigation was not examined by
the prosecution.
17. This Court finds that the legal proposition canvassed by
learned State counsel cannot be disputed. It is indeed settled that non-
examination of an independent witness or even a Gazetted Officer would
not invariably prove fatal to the prosecution case if the testimonies of the
recovery witnesses and the Investigating Officer otherwise inspire
confidence and the prosecution succeeds in proving an unbroken chain of
custody of the contraband. Similarly, every lapse regarding handling of
case property may not, by itself, be sufficient to discard the prosecution
case if the evidence on record otherwise remains unimpeachable.
18. However, the facts of the present case stand on an entirely
different footing. As already noticed hereinabove, this Court has found
serious and unexplained alterations in the consent memo as well as the
personal search memo. The repeated cuttings, overwriting, use of
correction fluid and writing in different ink in material documents have
already rendered the prosecution version highly doubtful and have created
authenticity of this order/judgment
a legitimate apprehension that the documents were prepared subsequently
merely to complete procedural formalities. It has been held by the
Co-ordinate Bench of this Court in Rajwinder Singh @ Happy vs. State of
Haryana, CRA-S No.564 of 2021 decided on 03.08.2021 that over-writing
in notice and consent memo under Section 50 NDPS Act creates doubt
about the authenticity and credibility of the prosecution's case and the
accused is entitled to benefit of doubt.
19. Once such doubt has arisen regarding the genuineness of the
proceedings allegedly conducted at the spot, the non-examination of the
DSP, who was the most material witness to prove the legality of the search
proceedings, assumes great significance. His testimony was essential to
dispel the doubts surrounding the alleged consent proceedings and to
establish that the accused had voluntarily reposed confidence in him.
Likewise, the non-examination of independent witness Karam Singh
further deprives the prosecution case of independent corroboration.
20. Moreover, the prosecution has also failed to satisfactorily
establish the safe custody of the case property, as the same was admittedly
not produced before the SHO. In a case under the NDPS Act, where severe
punishment is prescribed and strict procedural compliance is expected, the
prosecution is required to establish an unbroken and reliable chain of
custody of the recovered contraband. The failure to do so, when read in
conjunction with the aforementioned suspicious circumstances, further
weakens the prosecution case and raises a genuine possibility of tampering.
21. Thus, the cumulative effect of the suspicious alterations in
authenticity of this order/judgment
material documents, non-examination of the Gazetted Officer and
independent witness, and failure to establish proper custody of the case
property creates serious doubt regarding the fairness and genuineness of the
alleged recovery proceedings. It is a settled principle of criminal
jurisprudence that where two views are possible, the one favourable to the
accused must be adopted. The prosecution has failed to prove its case
beyond reasonable doubt.
22. Consequently, the present appeal is allowed. The judgment of
conviction and order of sentence dated 15.12.2004 passed by learned trial
Court are hereby set aside. The appellant-accused Ram Niwas is acquitted
of the charges framed against him by extending the benefit of doubt. He be
released forthwith, if not required in any other case.
23. All pending applications, if any, also stand disposed of.
(MANDEEP PANNU)
28.04.2026 JUDGE
neetu
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
authenticity of this order/judgment
