CR.A/121/2014 on 15 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 121 of 2014

Reserved on: 29.09.2026

Date of Decision: 15.10.2026

Sanjay Bhardwaj

....Appellant

Versus

State

....Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No For the Appellant : Mr Aman Hansretta, Advocate.

For the Respondents : Mr Pawan Kumar Nadda, Additional Advocate General.

Rakesh Kainthla, Judge.

The present appeal is directed against the judgment of conviction dated 10.04.2014 and order of sentence dated 11.04.2014, passed by learned Special Judge (Additional Sessions Judge), Hamirpur, H.P. (learned Trial Court) vide which the learned Trial Court convicted the accused of the commission of an offence punishable under Section 20 of the NDPS Act and sentenced him to undergo rigorous imprisonment for 5 years, pay a fine of ₹50,000/- and in default of payment of fine, to undergo simple imprisonment for six months. (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 before the learned trial Court against the accused for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that Inspector Sohan Lal (PW-12), HC Jagdish Kumar (PW-4), HHC Kamlesh Kumar (PW-3), Constable Jagat Ram (PW-5), Constable Sumit Kumar and HHG Ashwani Kumar were present near Nagar Parishad parking, Hamirpur on 26.02.2013. They received secret information that Sanjay Bhardwaj, who was running a shop in the name and style of Sanjay Hair Dresser, was selling intoxicating substances to the customers. A huge quantity of narcotic drugs/intoxicating substances could be recovered by searching the shop. The information was credible, and the delay in procuring the warrant would have led to the destruction of the case property; hence, a memo (Ext.PW8/A) was prepared and was sent to Dy.S.P., SV & ACB, Hamirpur, through Constable Jagat Ram. Inspector Sohan Lal joined Ashok

Kumar (PW-1) and Pankaj Sharma (PW-2), and went to the shop, which was open, and the accused was present in it. Inspector Sohan Lal gave an option to the accused to be searched before a Magistrate or Gazetted Officer, but the accused opted to be searched by the police. The accused searched the police officials, and nothing incriminating was found in their possession. Memo (Ext.PW3/B) was prepared. The shop was searched in the presence of the witnesses and the accused. A plastic container bearing the words ‘GIGI Passion Orange Facial Cream’ (Ext. P-2) was found on the shelf. The police opened the container and found black and brown sticks in it. The police smelled and burnt a stick and found it to be charas. An identification memo (Ext.PW12/B) was prepared. HHC Kamlesh Kumar was sent to bring the weighing scale and the weights. Harnam Singh (PW-7) came to the spot with HHC Kamlesh Kumar. The Charas was weighed, and its weight was found to be 330 grams. The Charas was put in the container, and the container was put in a cloth parcel. The parcel was sealed with six impressions of seal ‘J’. NCB-1 form (Ext.PW12/C) was prepared, and seal impression ‘J’ was taken on the form. Sample seal ‘J’ (Ext. PW1/B) was taken on a separate piece of cloth. The parcel, NCB-1 form and sample seal were seized vide memo (Ext. PW1/A). Rukka (Ext.PW12/D) was prepared and was sent to the Police Station, where (FIR Ext.PW14/A) was registered. Inspector Sohan Lal investigated the matter. He prepared the spot map (Ext.PW12/E). He produced the case property, case file and the accused before Balbir Singh (PW-14), who resealed the parcel with 3 seals of seal ‘H’. He obtained the seal impression on the NCB-1 form and on a separate piece of cloth (Ext.PW14/D). He prepared a resealing certificate (Ext.PW14/C). He handed over the case property to H.C. Umeshwar Singh (PW-8), who made an entry in the register of Malkana at Sl. No.1/13 (Ext. PW8/C) and deposited it in Malkana. SI Mohan Lal (PW-13) conducted the further investigation. He produced the case property before the learned Judicial Magistrate First Class, Court No.1, Hamirpur, H.P., for conducting the proceedings under Section 52A along with an application (Ext.PW13/B). The learned Magistrate passed an order (Ext.PW13/C) and returned the case property, which was again deposited in the malkhana. HC Umeshwar Singh handed over the parcel, the copy of FIR, NCB-1 form in triplicate and the seal impression to Constable Rampal (PW-10) with a direction to carry them to FSL Junga, vide RC No. 1/13

(Ext.PW8/D). Constable Ram Pal deposited all the articles in safe custody at FSL Junga and handed over the receipt to MHC on his return. SI Mohan Lal (PW-13) prepared the Special Report (Ext.PW8/E) and handed it over to Dy.S.P., who made the endorsement on the Special Report (Ext. PW-8/E) and handed it over to HC Umeshwar Singh (PW-8), who made an entry at Sl. No.1 of the Special Report Register (Ext.PW-8/B). The result of analysis (Ext. PW14/E) was issued, stating that the exhibit was an extract of cannabis and a sample of charas which contained 25.37% w/w resin in it. The statements of 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. Learned trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined 14 witnesses to prove its case. Ashok Kumar (PW-1) and Pankaj Sharma (PW-2) are the independent witnesses, who have not supported the prosecution case. HHC Kamlesh Kumar (PW-3), HC Jagdish Kumar (PW-4), and Constable Sumit Kumar (PW-6) are the official witnesses to the recovery. Constable Jagat Ram (PW-5) brought the information under Section 42 from the spot. Harnam Singh (PW-7) did not support the prosecution case. HC Umeshwar Singh (PW-8) was working as MHC, with whom the case property was deposited. Raj Krishan (PW-9) was the Executive Officer, who proved the allotment of the shop. Constable Ram Pal (PW-10) carried the case property to FSL. Rangil Kumar (PW-11) was the original allottee, who had rented the shop to the accused. Inspector Sohan Lal (PW-12) effected the recovery and carried out the initial investigation. SI Mohan Lal (PW-13) investigated the matter. Balbir Singh (PW-14) resealed the parcel.

5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.OC.), admitted that he is running a shop in MC Shopping Complex, Hamirpur, which was originally allotted to Rangil Kumar, who had rented it to the accused. He denied the rest of the prosecution case. He claimed that he was innocent and the police officials had deposed falsely against him. He did not produce any evidence in his defence.

6. Learned trial Court held that the testimonies of police officials corroborated each other. The mere fact that independent witnesses had not supported the prosecution case was not sufficient to discard it. The recovery was effected from a plastic container kept in the shop, and the requirement of Section 50 of the NDPS Act did not apply to the present case. The statements of police officials did not show that they had any motive to depose against the accused. The accused also admitted that he was running a shop in MC Complex. The integrity of the case property was duly established. The substance was found to be Charas after the analysis; hence, the learned trial Court convicted and sentenced the accused as mentioned above.

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 appreciating the material on record. The official witnesses contradicted each other on material aspects, which made the prosecution case highly doubtful. The independent witnesses had not supported the prosecution version, and this was sufficient to make the prosecution case doubtful. The learned trial Court erred in rejecting the testimonies of the official witnesses. Harnam Singh (PW-7), from whom the weight and scale were brought, had not supported the prosecution version, which falsifies the prosecution case that the substance was weighed on the spot. 4- 5 persons were working in the shop of the accused, and there was no evidence that the accused was in conscious and exclusive possession of the Charas. Hence, 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 Aman Hansretta, learned counsel for the appellant and Mr Pawan Kumar Nadda, learned Additional Advocate General, for the respondent/State.

9. Mr Aman Hansretta, learned counsel for the appellant, submitted that the independent witnesses have not supported the prosecution versions. The learned trial Court had rightly held that the testimonies of hostile witnesses cannot be effaced from record but erred in reading the statements of hostile witnesses against the accused. The testimonies of hostile witnesses made the prosecution case highly doubtful. There were major contradictions in the statements of official witnesses, which made the prosecution case highly suspect. There was non-compliance with Sections 42 and 50 of the NDPS Act, which are mandatory. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned trial Court be set aside.

10. Mr Pawan Kumar, Nadda, learned Additional Advocate General, for the respondent/State submitted that the testimonies of official witnesses cannot be discarded because they are police officials. The statements of prosecution witnesses did not contain anything in their cross-examination to show that they were making false statements or had any motive to depose falsely against the accused. Learned trial Court had rightly appreciated the evidence on record, and no interference is required with the judgment and order passed by the learned trial Court. Hence, he prayed that the present appeal be dismissed.

11. I have given considerable thought to the submissions made at bar and have gone through the records carefully.

12. Ashok Kumar (PW-1) stated that the accused is running a barber shop near Taxi Union near Bus Stand, Hamirpur, H.P. The police officials had recovered charas from the shop, which was shown to him. The charas was weighed, and it contained 330 grams. The charas was kept in a container, and the container was put in a cloth parcel. The parcel was sealed by affixing the seal; however, he did not remember the number of seals. The police obtained his signatures. The recovery was not effected in his presence. He was permitted to be cross- examined. He admitted that the police had given an option to the accused to be searched before a Magistrate or a Gazetted Officer. He admitted that the accused had opted to be searched by the police. He admitted that the police had prepared the memo. He identified his signatures on the memo. He denied that the police had searched the shop and recovered charas from a container kept on the rack. He denied that police checked the container and found charas in it. He did not identify the charas in the Court. He denied the previous statement recorded by the police.

13. Pankaj Sharma (PW-2) stated that the accused was running a barber shop opposite to his shop. The police obtained his signatures. He put the signatures because there was a huge rush in his shop. He was permitted to be cross-examined. He denied that the police had sought his assistance as a witness for searching the shop of the accused. He denied that police associated Ashok Kumar as a witness. He denied that police had given an option to the accused to be searched before a Magistrate or a Gazetted Officer and the accused had opted to be searched by the police. He denied that the shop of the accused was searched in his presence and the police found one plastic container containing charas in the form of sticks. He denied the previous statement recorded by the police. However, he admitted his signatures on various documents. He denied that he was making a false statement to save the accused.

14. It was submitted that the testimonies of these witnesses have made the prosecution case highly suspect, and the learned trial Court erred in not relying upon the testimonies of these witnesses. This submission will not help the accused. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri. L.J. 4254, the prosecution's version cannot be discarded because the independent witnesses did not support it. It was observed:

Though the independent witnesses, PW-1 Rajiv Kumar and PW-2 Hira Lal, were declared hostile and were cross- examined, the law in respect of appreciating the testimonies of such witnesses is well settled. Hon'ble Apex Court in Sudru versus State of Chhattisgarh, (2019) 8 SCC 333, relying upon Bhajju versus State of M.P., 2010 4 SCC 327, has again reiterated the well-settled principle that evidence of a hostile witness can be relied upon by the prosecution version. Merely because a witness has turned hostile, the same does not render his evidence or testimony inadmissible in a trial, and such a conviction can be based upon such testimony if it is corroborated by other reliable evidence.

In a case titled Raja and Others versus State of Karnataka (2016) 10 SCC 506, the Apex Court observed that the evidence of a hostile witness cannot be altogether discarded, and as such, it is open for the Court to rely on the dependable part of such evidence which stands duly corroborated by other reliable evidence on record.

In a case titled Selvaraj @ Chinnapaiyan versus State represented by Inspector of Police, (2015) 2 SCC 662, the Apex Court has observed that in a situation/case wherein the witness deposes falsely in his/her cross-examination, that itself is not sufficient to outrightly discard his/her testimony in examination-in-chief. The Court held that a conviction can be recorded believing the testimony of such a witness given in examination-in-chief; however, such evidence is required to be examined with great caution.

In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh, (2011) 5 SCC 123, it has been held as under: - "The seizure witness turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to the NDPS Act.”

15. SI Sohan Lal (PW-12) specifically stated that he had recorded the statement of Ashok Kumar (Ext. PW-12/F) and Pankaj Sharma (Ext. PW-12/G), as per their version. It was suggested to him in the cross-examination that statements of witnesses were recorded by him on 27.02.2013. Thus, the accused has not disputed the fact that he had recorded the statements of the witnesses as per their version. He has only disputed the fact that the statements were recorded on the spot on the date of the incident. There is no reason to disbelieve the testimony of Inspector Sohan Lal that Sohan Lal had recorded the statements of the witnesses as per their version. Thus, the witnesses are shown to have made two inconsistent statements, one before the Court and the other before the police and their versions contradicted each other; It was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. However, when he is confronted with some portions of the previous statement, his credibility is shaken to that extent, and the rest of the statement can be relied upon. It was observed:

“52. From the above conspectus, it emerges clearly that even in a criminal prosecution, when a witness is cross- examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether, as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed regarding a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.”

16. This Court also took a similar view in Ian Stilman versus. State 2002(2) ShimLC 16 wherein it was observed: “12. It is now well settled that when a witness who has been called by the prosecution is permitted to be cross- examined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex Court. In Jagir Singh v. The State (Delhi Administration), AIR 1975 Supreme Court 1400, the Apex Court observed: "It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony.

17. It was laid down by the Hon’ble Supreme Court in Mahesh v. State of Maharashtra, (2008) 13 SCC 271; (2009) 3 SCC (Cri) 543; 2008 SCC OnLine SC 656 that where the witness had made an inconsistent statement before the police, his testimony before the Court cannot be relied upon. It was observed at page 289: “49. It is the evidence of PW PSI Dhimole that portion marked “A” appearing in the statement of PW 1 was recorded by him correctly. The defence has not brought on record any evidence to show why the investigating officer had recorded the portion marked " A " of the statement of PW 1 incorrectly. If PW 1, the maker of the complaint, has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness, for no plausible and tenable reasons pointed out on record, will give rise to doubt as to the testimony of the investigating officer, who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution.”

18. It was held in Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439: 2010 SCC OnLine SC 1087 that where a witness makes different statements at different times, he does not have any regard for truth and his testimony should be seen with due care and caution. It was observed at page 448: “16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times has no regard for the truth. His evidence has to be read and considered as a whole with a view to finding out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291: 2003 SCC (Cri) 1628].)

19. Therefore, the learned trial Court had rightly held that the testimonies of hostile witnesses are not effaced from record; however, the part of the statements contradicted by such witnesses from their previous testimonies cannot be relied upon, and the learned trial Court was justified in rejecting that part. Thus, the grievance of the appellant-accused that the learned trial Court had picked up the statements in a piecemeal manner is not justified.

20. HHC Kamlesh Kumar (PW-3) supported the prosecution case, and his examination-in-chief is not being reproduced to avoid prolixity and repetition. He stated in his

cross-examination that the police party started from the Police Station at about 4:00 PM and had not searched any shop till 5:00 p.m. The independent witnesses were associated near Veer Bhumi Taxi Union. No person had gone to call the witnesses. 10– 15 persons had also gathered at the spot. He admitted that barber shops are usually closed on Tuesday. He denied that the shop of the accused was also closed on the date of the incident. He stated that the shop was searched by four police officials, including him, in the presence of two independent witnesses. The plastic container was recovered by Inspector Sohan Lal. The police party remained on the spot for about three to four hours. He denied that no recovery was effected from the shop of the accused.

21. HC Jagdish Kumar (PW-4) also supported the prosecution version, and his testimony is not being reproduced to avoid repetition. He stated in his cross-examination that he had not searched any shop or vehicle before reaching the MC parking. He admitted that there were 20 to 25 shops in the vicinity. He admitted that a personal search of the accused was conducted. Independent witnesses were joined near the taxi union. He returned in five 5 minutes with the scale and the weights. He denied that no recovery was effected from the accused.

22. Constable Sumit Kumar (PW-6) also supported the prosecution version in his examination-in-chief. He stated in his cross-examination that no other shop or vehicle was searched on the date of the incident. Inspector Sohan Lal had received the secret information. The independent witnesses were called by Inspector Sohan Lal. One of the independent witnesses runs a shop in the MC Complex, and the other is a taxi driver. He admitted that the shop of Pankaj Sharma is located opposite the shop of the accused. All the members of the raiding party were searched by the accused. Constable Jagat Ram returned to the spot after delivery of the information. There were five to seven shops near the shop of the accused. He admitted that the shop of the accused is located in a crowded area. He admitted that the barber shops are normally closed on Tuesday. He denied that the shop of the accused was also closed. He denied that a false case was made against the accused.

23. Inspector Sohan Lal (PW-12) also supported the prosecution version. He stated in his cross-examination that he had not searched any other shop on the date of the incident. The witnesses met him on the way to the shop of the accused near Veer Bhumi Taxi Union. The shop of Pankaj Sharma is located opposite the shop of the accused. He admitted that there are shops adjoining and opposite to the shop of the accused. He stated that the memo was sent through Constable Jagat Ram at about 5:05 p.m., who had returned at about 5:45 p.m. There were six members of the raiding party. All the members searched the shop. He was not aware that three to four workers worked along with the accused in his shop. He admitted that the barber shop and meat shops are usually closed on Tuesday. He denied that the shop of the accused was also closed and that a false case was made against him.

24. Learned trial Court had rightly pointed out that there are no significant contradictions in the statements of the witnesses. The statements of witnesses corroborated each other in material particulars. They have given the correct details surrounding the incident, making them truthful witnesses

25. Harnam Singh (PW-7) did not support the prosecution case. He stated that the police came to his shop on the morning of Wednesday. He was permitted to be cross- examined. He denied that HHC Kamlesh Kumar visited his shop on 26.02.2013 and took the weighing scale and the weights. He denied that he had accompanied HHC Kamlesh Kumar to the shop of the accused. He denied that the charas was weighed in his presence and the weight of the charas was found to be 330 grams. He denied the previous statement recorded by the police.

26. SI Mohan Lal (PW-13) stated that he had recorded the statement of Harnam Singh (Ext.PW13/A) as per his version. He admitted in his cross-examination that he had recorded the statements of Constable Jagat Ram, Constable Sumit Kumar, Head Constable Jagdish Chand and Harnam Singh at the Police Station. Therefore, the accused is not disputing the fact that he (S.I. Mohan Lal ) had recorded the statement of Harnam Singh as per his version. Hence, the testimony of Harnam Singh has been impeached with reference to his previous inconsistent statement and cannot be used to discard the prosecution version.

27. It was submitted that the prosecution had not complied with the requirement of Section 42 (1) of the NDPS Act. This submission is only stated to be rejected. Section 42(1) of the

NDPS Act requires that the officer receiving the information shall take down in writing the substance of the information and thereafter carry out the search, and if he has a reason to believe that the warrant cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he may enter inside the premises after recording the grounds of his belief. In the present case, the information was received by Inspector Sohan Lal. He reduced the information to writing (Ext.PW8/A) containing the details of the information. It also mentions that the information was received at an odd hour and the delay in procuring the warrant would have led to the destruction of the case property; hence, the information was sent to the supervisory officer. Therefore, the information (Ext. PW-8/A) fulfills all the requirements laid down under Section 42(1) of the NDPS Act, and it cannot be said that there was non-compliance of the provisions of Section 42 of the NDPS Act.

28. The police gave an option to the accused to be searched before a Magistrate or the Gazetted Officer; however, the accused opted to be searched by the police. It was submitted that the consent of the accused to be searched by the police shows that a third option was also given to the accused and there is a violation of Section 50 of the NDPS Act. This submission will not help the accused. In the present case, the recovery was effected from a container kept on the rack in the shop, and no recovery was effected from the personal search. It was laid down by the Hon’ble Supreme Court in the State of Punjab v. Baljinder Singh, (2019) 10 SCC 473; (2020) 1 SCC (Cri) 22: 2019 SCC OnLine SC 1408, that where the recovery was effected from the bag, briefcase, etc., non-compliance with section 50 is not fatal. It was observed at page 480:

13. The law is thus well settled that an illicit article seized from the person during a personal search conducted in violation of the safeguards provided in Section 50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contraband. But the question is, if there be any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance?

14. At this stage, we may also consider the following observations from the decision of this Court in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746: (2010) 2 SCC (Cri) 475: (SCC pp. 752-53, para 15) “15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply while searching the bag, briefcase, etc., carried by the person, and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noted that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where a search of a person is involved, and the said section is not applicable or attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc., does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of the search of a person only. Secondly, the section speaks of taking the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue, in our considered opinion, is no longer res integra in view of the observations made by this Court in Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664, the Court has observed: (SCC

p. 471, para 16) ‘16. A bare reading of Section 50 shows that it only applies in the case of a personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra, (1999) 8 SCC 257: 1999 SCC (Cri) 1422], State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] and Gurbax Singh v. State of Haryana, (2001) 3 SCC 28: 2001 SCC (Cri) 426). The language of Section 50 is implicitly clear that the search has to be in relation to a person, as contrasted with a search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080. Above being the position, the contention regarding non- compliance with Section 50 of the Act is also without any substance.”

29. This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, and it was observed at page 204: -

“16. Simultaneously, the arguments advanced by the appellant regarding non-compliance with Section 50 of the NDPS Act are bereft of any merit because no recovery of contraband from the person of the accused has been made, to which compliance with the provision of Section 50 of the NDPS Act has to follow mandatorily. In the present case, in the search for a motorcycle in a public place, the seizure of contraband was made, as revealed. Therefore, compliance with Section 50 does not apply in the present case. It is settled in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497 that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] and State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 : (2020) 1 SCC (Cri) 22. Considering the facts of this case, the argument of non- compliance with Section 50 of the NDPS Act advanced by the counsel is hereby repelled.”

30. Similar is the judgment in Dayalu Kashyap v. State of Chhattisgarh, (2022) 12 SCC 398: 2022 SCC OnLine SC 334, wherein it was observed at page 400:- “4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand, (2014) 5 SCC 345: (2014) 2 SCC (Cri) 563, more specifically, SCC para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172:

1999 SCC (Cri) 1080 to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned, not being part of the statute, the same could not have been offered to the appellant, and thus, the recovery from him is vitiated.

5. In the conspectus of the facts of the case, we find that the recovery was in a polythene bag which was being carried on a kanwad. The recovery was not in person. The learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by a violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus cannot be relied upon. We cannot give such an extended view as is sought to be contended by the learned counsel for the appellant.

31. This judgment was followed in Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262: AIR 2023 SC 5164, and it was observed: “126. As such, there is no direct conflict between SK. Raju (supra) and Baljinder Singh (supra). It is pertinent to note that in SK. Raju (supra), the contraband was recovered from the bag that the accused was carrying, whereas in Baljinder Singh (supra), the contraband was recovered from the vehicle. This makes a lot of difference even while applying the concept of any object being “inextricably linked to the person”. Parmanand (supra) relied upon the judgment in Dilip (supra) while taking the view that if both the person of the accused as well as the bag are searched and the contraband is ultimately recovered from the bag, then it is as good as the search of a person and, therefore, Section 50 would be applicable. However, it is pertinent to note that Dilip (supra) has not taken into consideration Pawan Kumar (supra), which is of a larger Bench. It is also pertinent to note that although in Parmanand (supra) the Court looked into Pawan Kumar (supra), yet ultimately it followed Dilip (supra) and took the view that if the bag carried by the accused is searched and his person is also searched, Section 50 of the NDPS Act will have application. This is something travelling beyond what has been stated by the larger Bench in Pawan Kumar (supra). Baljinder Singh (supra), on the other hand, says that Dilip (supra) does not lay down good law.

127. In the facts of the present case, there is no scope for applying the ratio of Parmanand (supra) and SK. Raju (supra). At the cost of repetition, we may state that in the case at hand, there is nothing to indicate that the search of the person of the accused was also undertaken along with the bag that he was carrying on his shoulder.

128. We do not propose to say anything further as regards SK. Raju (supra) as well as Baljinder Singh (supra). We adhere to the principles of law as explained by the Constitution Bench in Baldev Singh (supra) and the larger Bench answering the reference in Pawan Kumar (supra).”

32. Therefore, the requirement of Section 50 of the NDPS Act does not apply to the present case.

33. It was submitted that the learned Trial Court erred in relying upon the testimonies of police officials, especially when the independent witnesses had not supported the prosecution case. This submission will not help the accused. The learned

Trial Court had rightly held that the cross-examination of the police officials did not show that they had any motive to depose against the accused or that they were making a false statement. Therefore, their testimonies could not have been discarded on the ground that they were police officials. It was laid down by the Hon’ble Supreme Court in Kripal Singh v. State of Rajasthan, (2019) 5 SCC 646: (2019) 2 SCC (Cri) 680: 2019 SCC OnLine SC 207, that the testimonies of the police officials cannot be ignored because they are police officials. It was observed at page 656: “21. The submission of the learned Senior Counsel for the appellant that recovery has not been proved by any independent witness is of no substance for the reason that, in the absence of an independent witness to support the recovery, in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials, unless supported by an independent witness, is unworthy of acceptance or that the evidence of police officials can be outrightly disregarded.”

34. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri.L.J.4254 that the testimonies of the police officials cannot be discarded on the ground that they belong to the police force. It was observed: “11. It is a settled proposition of law that the sole testimony of the police official, which, if otherwise, is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. There is also no rule of law that lays down that no conviction can be recorded on the testimony of a police officer, even if such evidence is otherwise trustworthy. The rule of prudence may require more scrutiny of their evidence. Wherever the evidence of a police officer, after scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction, and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution’s case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force.”

35. Similar is the judgment in Karamjit Singh versus State, AIR 2003 S.C. 3011, wherein it was held: “The testimony of police personnel should be treated in the same manner as the testimony of any other witness, and there is no principle of law that, without corroboration by independent witnesses, their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons, and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case, and no principle of general application can be laid down.” (Emphasis supplied)

36. This position was reiterated in Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, wherein it was observed:

22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable and trustworthy, then basing the conviction thereupon cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi) 2013 (6) SCC 588after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686: 1989 SCC (Cri) 48], State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652: 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595: AIR 2013 SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large shows its disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer to be unreliable and untrustworthy, the court may disbelieve him, but it should not do so solely on the presumption that a witness from the police department should be viewed with distrust. This is also based on the principle that the quality of the evidence outweighs the quantity of evidence.

23. Referring to State (Govt. of NCT of Delhi) v. Sunil 2001

(1) SCC 652, in Kulwinder Singh v. State of Punjab (2015) 6 SCC 674, this court held that: — “23. … That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record, the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence.”

24. We must note that in the former it was observed: —

“21… At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature… If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.”

25. Recently, this Court in Mohd. Naushad v. State (NCT of Delhi) 2023 SCC OnLine 784 had observed that the testimonies of police witnesses, as well as pointing out memos, do not stand vitiated due to the absence of independent witnesses.

26. It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses cannot be discarded simply because independent witnesses were not examined. The correctness or authenticity is only to be doubted on “any good reason”, which, quite apparently, is missing from the present case. No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW-1 and PW-2, which the courts below have found absolutely to be inspiring confidence. Therefore, basing the conviction on the testimony of the police witnesses as undertaken by the trial court and confirmed by the High Court vide the impugned judgment, cannot be faulted with.”

37. Thus, there is no error in accepting the testimonies of the police officials.

38. It was submitted that the police had picked up the container containing the Charas, which shows that the police were aware of the fact that Charas was kept in the container, and this makes the prosecution case highly suspect. This submission cannot be accepted. It has been stated by the witnesses that all the police officials were carrying out the search, and the container containing charas was recovered by Inspector Sohan Lal. Therefore, the police had not picked up the container containing the charas, but had searched the shop. The container was found during the search by Sohan Lal, and there is nothing suspicious in the prosecution case.

39. Inspector Sohan Lal (PW-12) stated that he had produced the case property, case file and the accused before Balbir Singh. Additional S.P. Balbir Singh (PW-14) stated that the police party returned to the Police Station on 26.02.2013 along with the case property and NCB-I form in triplicate, along with sample seal, and the case property was presented before him for resealing. The parcel had been sealed with 6 seals of impression

‘J’. The seals were legible and intact. He resealed the parcel after fixing 3 seals bearing impression ‘H’. The seal impression ‘H’ was taken on the NCB-I form and a piece of cloth. He issued the resealing certificate and handed over the case property to MHC Umeshwar Singh for safe custody. He denied that no resealing process was conducted by him. A denied suggestion does not amount to any proof and is not sufficient to discard his testimony.

40. His testimony is duly corroborated by the statement of HC Umeshwar Singh (PW-8), who stated that the case property was deposited with him. The parcel was bearing six seals of impression ‘J’ and 3 seals of impression ‘H’. He made the entry regarding the deposit of these articles in the Malkhana register at Sl. No. 1/13 and sent the case property to FSL through Constable Ram Pal. His testimony is duly corroborated by the entries made in the Road Certificate and the Malkhana Register.

41. The case property was also produced before learned Judicial Magistrate First Class on 27.02.2013. The learned Judicial Magistrate passed an order (Ext.PW-13/C) mentioning that the seals were visible and intact. The learned Magistrate also issued a certificate (Ext.PW-14/C). The photographs of the sealed sample were taken in the presence of the Court.

42. Constable Rampal (PW-10) stated that he had carried the sealed parcel, copy of FIR and NCB-I form in triplicate, sample seal ‘J’ and H to FSL Junga. He was not cross-examined at all, which means that his testimony is not disputed by the accused.

43. The FSL, Junga, issued the result (Ext. PW14/E), stating that a parcel sealed with 6 seals of seal ‘J’ and 3 seals of seal H was received in the laboratory through Constable Rampal. The seals were found intact and were tallied with a specimen seal sent by the forwarding authority and the seal impression impressed on the NCB-I form. This report corroborates the prosecution version regarding the integrity of the case property. It was held in Baljit Sharma vs. State of H.P. 2007 HLJ 707, that where the report of analysis shows that the seals were intact, the prosecution's claim that the case property remained intact is to be accepted as correct. It was observed: “A perusal of the report of the expert Ex.PW8/A shows that the samples were received by the expert in a safe manner, and the sample seal was separately sent and tallied with the specimen impression of a seal taken separately. Thus, there was no tampering with the seal, and the seal impressions were separately taken and sent to the expert also.”

44. Similar is the judgment in Hardeep Singh vs. State of Punjab 2008(8) SCC 557, wherein it was held: “It has also come on evidence that to date the parcels of the sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the previously mentioned seal in the sample at any stage, and the sample received by the analyst for chemical examination contained the same opium, which was recovered from the possession of the appellant. In that view of the matter, a delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant.”

45. In State of Punjab vs. Lakhwinder Singh 2010 (4) SCC 402, the High Court had concluded that there could have been tampering with the case property since there was a delay of seven days in sending the report to FSL. It was laid down by the Hon’ble Supreme Court that the case property was produced in the Court, and there was no evidence of tampering. Seals were found to be intact, which would rule out the possibility of tampering. It was observed: “The prosecution has been able to establish and prove that the aforesaid bags, which were 35 in number, contained poppy husk and accordingly the same were seized after taking samples therefrom, which were properly sealed. The defence has not been able to prove that the aforesaid seizure and seal put on the samples were in any manner tampered with before they were examined by the Chemical Examiner. There was merely a delay of about seven days in sending the samples to the Forensic Examiner, and it is not proved as to how the aforesaid delay of seven days has affected the said examination, when it could not be proved that the seal of the sample was in any manner tampered with. The seal having been found intact at the time of the examination by the Chemical Examiner and the said fact having been recorded in his report, a mere observation by the High Court that the case property might have been tampered with, in our opinion, is based on surmises and conjectures and cannot take the place of proof.

17. We may at this stage refer to a decision of this Court in Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557 in which there was a delay of about 40 days in sending the sample to the laboratory after the same was seized. In the said decision, it was held that in view of cogent and reliable evidence that the opium was seized and sealed and that the samples were intact till they were handed over to the Chemical Examiner, the delay itself was held to be not fatal to the prosecution's case. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case in this regard.

18. The case property was produced in the Court, and there is no evidence to show that the same was ever tampered with.”

46. Similar is the judgment of the Hon'ble Supreme Court in Surinder Kumar vs. State of Punjab, (2020) 2 SCC 563, wherein it was held: -

10. According to learned senior counsel for the appellant, Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3), handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production, was not examined, as such link evidence was incomplete. In this regard, it is to be noticed that Yogi Raj, SHO, handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3), with the seals intact. It is also to be noticed that Joginder Singh, ASI, was not in possession of the seals of either the investigating officer or Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13; the concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody at Police Station Khuian Sarwar till further orders. Since Joginder Singh, ASI, was not in possession of the seals of either the SHO or the Investigating Officer, the question of tampering with the case property by him did not arise at all.

11. Further, he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that the non-examination of Joginder Singh did not, in any way, affect the case of the prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample tallied with the sample seals. In that view of the matter, the chain of evidence was complete.” (Emphasis supplied)

47. Therefore, the prosecution's version was rightly accepted by the learned Trial Court that the case property remained intact till its analysis at SFSL, Junga, H.P.

48. Thus, the learned Trial Court had rightly held that the accused was found in possession of a container containing 330 grams of charas, and the learned Trial Court had rightly convicted the accused of the commission of an offence punishable under Section 20 of the NDPS Act.

49. The learned Trial Court sentenced the accused to undergo rigorous imprisonment for 5 years, pay a fine of ₹50,000, with a default clause. The Central Government has notified 1 kg of charas as a commercial quantity, which means that a person possessing 1 kg of charas can be sent to imprisonment for 10 years. It was laid down by the Hon’ble Supreme Court in Uggarsain v. State of Haryana, (2023) 8 SCC 109: 2023 SCC OnLine SC 755, that the Courts have to apply the principle of proportionality while imposing a sentence. It was observed at page 113:

10. This Court has, time and again, stated that the principle of proportionality should guide the sentencing process. In Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat [Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 : (2009) 3 SCC (Cri) 368 : (2009) 8 SCR 719], it was held that the sentence should “deter the criminal from achieving the avowed object to (sic break the) law,” and the endeavour should be to impose an “appropriate sentence.” The Court also held that imposing “meagre sentences” merely on account of lapse of time would be counterproductive. Likewise, in Jameel v. State of U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712] while advocating that sentencing should be fact dependent exercises, the Court also emphasised that : (Jameel case [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582 : (2009) 15 SCR 712], SCC p. 535, para 15) “15. … the law should adopt the corrective machinery or deterrence based on a factual matrix. By deft modulation, the sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.” (emphasis supplied)

11. Again, in Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972 : (2012) 8 SCR 189] the Court stressed that : (SCC p. 744, para 33) “33. … It is the duty of the court to see that an appropriate sentence is imposed, regard being had to the commission of the crime and its impact on the social order” (emphasis supplied) and that sentencing includes “adequate punishment”. In B.G. Goswami v. Delhi Admn. [B.G. Goswami v. Delhi Admn., (1974) 3 SCC 85: 1973 SCC (Cri) 796 : (1974) 1 SCR 222], the Court considered the issue of punishment and observed that punishment is designed to protect society by deterring potential offenders as well as prevent the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentences.

12. In Sham Sunder v. Puran [Sham Sunder v. Puran, (1990) 4 SCC 731: 1991 SCC (Cri) 38: 1990 Supp (1) SCR 662], the appellant-accused was convicted under Section 304 Part I IPC. The appellate court reduced the sentence to the term of imprisonment already undergone, i.e. six months. However, it enhanced the fine. This Court ruled that the sentence awarded was inadequate. Proceeding further, it opined that: (SCC p. 737, para 8)

8. … The court, in fixing the punishment for any particular crime, should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of the opinion that to meet the ends of justice, the sentence has to be enhanced.” (emphasis supplied) This Court enhanced the sentence to one of rigorous imprisonment for a period of five years. This Court has emphasised that sentencing depends on the facts, and the adequacy is determined by factors such as “the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected” [Ravada Sasikala v. State of A.P. (2017) 4 SCC 546 : (2017) 2 SCC (Cri) 436 : (2017) 2 SCR 379]. Other decisions, like: State of M.P. v. Bablu [State of M.P. v. Bablu, (2014) 9 SCC 281 : (2014) 6 SCC (Cri) 1 : (2014) 9 SCR 467]; Hazara Singh v. Raj Kumar [Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 : (2014) 1 SCC (Cri) 159 : (2013) 5 SCR 979] and State of Punjab v. Saurabh Bakshi [State of Punjab v. Saurabh Bakshi, (2015) 5 SCC 182 : (2015) 2 SCC (Cri) 751 : (2015) 3 SCR 590] too, have stressed on the significance and importance of imposing appropriate, “adequate” or “proportionate” punishments.

50. If the principle of proportionality is applied to the present case, the sentence of 5 years is excessive and is required to be reduced. Keeping in view the quantity of charas found in possession of the accused, he is sentenced to undergo rigorous imprisonment for 3 years and 3 months, pay a fine of ₹33,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for six months. He will be entitled to set-off for the imprisonment, if any, undergone during the trial or the pendency of the appeal before this Court.

51. In view of the above, the present appeal is partly allowed, and the sentence imposed by the learned trial Court is ordered to be modified, and the accused is sentenced to undergo rigorous imprisonment for 3 years and 3 months, pay a fine of ₹33,000/-, and in default of payment of fine, to further undergo simple imprisonment for 6 months. Modified jail warrant be prepared accordingly.

52. The record of the learned Court below be sent back with a copy of this judgment for the information of the learned Trial Court.

53. Appeal stands disposed of along with pending miscellaneous application(s), if any.

(Rakesh Kainthla)

Judge

15th October, 2026.

(Ravinder)