Himachal Pradesh High Court
Reserved On: 24.03.2025 vs Shiv Kumar on 9 April, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:9928-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 139 of 2015
Reserved on: 24.03.2025
Decided on: 09.04.2025
_________________________________________________________
State of Himachal Pradesh
…..Appellant
Versus
Shiv Kumar
……Respondent
__________________________________________________________
Coram
Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge
Hon’ble Mr. Justice Sushil Kukreja, Judge
1
Whether approved for reporting? Yes.
______________________________________________________
For the appellant: Mr. Yashwardhan Chauhan, Senior
Additional Advocate General with
Mr.Ramakant Sharma, Ms. Sharmila
Patial, Mr. Sushalt Kaprate, Additional
Advocates General and Mr. Raj Negi,
Deputy Advocate General.
For the respondent: Mr. Manoj Pathak, Advocate.
Sushil Kukreja, Judge
The present appeal has been preferred by the appellant-
State under Section 378 of the Code of Criminal Procedure (Cr.PC)
against the judgment of acquittal dated 07.11.2014 passed by the
learned Special Judge-I, Shimla, H.P., in Sessions Trial No.4-S/7 of 2013,
whereby the accused (respondent herein) was acquitted of the offence
punishable under Section 20 of Narcotic Drugs and Psychotropic
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:9928-DB )
Substances Act, 1985 (for short, the ‘NDPS Act‘).
2. Briefly stated the facts of the case, giving rise to instant
appeal as per the prosecution story, are that on 28.09.2012, while a
police party headed by Dy. SP Vijay Sharma, was on patrolling duty near
Tara Devi, it received a secret information at about 10.30 A.M. that one
person named Shiv Kumar, having Mobile No.8894164432, was coming
from Dalash (Kullu) alongwith charas. On the basis of said information,
police laid a naka and started checking the vehicles and when a bus
bearing No.CH-01G-8893 came from Shimla side, it was stopped for
checking and thereafter, when a person, sitting on Seat No.40, was
asked to disclose his name, he disclosed his name as Shiv Kumar
(accused/respondent herein), who was having a pithu bag in his lap.
Thereafter, the driver and conductor of the bus were associated as
witnesses by the police and then search of the pithu bag being carried
by the accused was conducted. During the search, one sweater and one
carry bag, wrapped with cello tape were taken out and on opening the
carry bag, one shoe box, wrapped with cello tape, was found and after
opening the shoe box, a black coloured substance was found inside the
box. On smelling and experience, it was found to be charas. On
weighment, the recovered contraband was found to be 3.150 kilograms.
Thereafter, the police completed all the codal formalities, viz., recovered
contraband was repacked in the same manner and then put in a cloth
3 Neutral Citation No. ( 2025:HHC:9928-DB )
parcel, which was sealed with 6 seals of seal impression ‘H’. Sample
seal was separately taken on a piece of cloth. NCB form, in triplicate,
was filled and seal after use was handed over to Krishan Chand. The
Investigating Officer prepared the rukka and sent to the police station,
through Constable Biri Singh, on the basis of which, FIR in question was
registered against the accused. Police recorded statements of the
witnesses, clicked photographs and prepared the spot map. The accused
was arrested and got medically examined. The cloth parcel, containing
the recovered contraband, was handed over to SHO, who, after checking
the entries, re-sealed the same with 6 seals of seal impression ‘C’ and
deposited the case property in the Malkhana. The case property was
sent to FSL, Junga for analysis.
3. On the completion of the investigation and receipt of the
SFSL report, the charge-sheet was prepared and presented before the
learned Trial Court.
4. The learned trial Court, vide order dated 23.05.2013 framed
charges against the accused under Section 20 of NDPS Act, to which he
did not plead guilty and claimed trial.
5. The prosecution, in order to prove its case, examined 16
witnesses. Statement of the accused under Section 313, Cr.PC was
recorded, wherein he denied all set of incriminating evidence led by the
prosecution against him, besides pleaded to be innocent and having
4 Neutral Citation No. ( 2025:HHC:9928-DB )
been falsely impliaced in the case.
6. The learned trial Court, vide impugned judgment dated
07.11.2014, acquitted the accused for commission of the offence
punishable under Section 20 of NDPS Act, hence, the instant appeal
preferred by the appellant-State.
7. The learned Senior Additional Advocate General contended
that the trial Court has not appreciated the evidence in its right
perspective, but at the same time, has set unrealistic standards to
evaluate the direct and cogent evidence. He further contended that the
learned trial Court has wrongly given undue weightage to the minor
contradictions in the statements of prosecution witnesses which do not
go to the root of the case and further these minor contradictions are
bound to occur due to lapse of time. Hence, he submitted that the
impugned judgment of acquittal is liable to be set aside.
8. Conversely, the learned counsel for the respondent/accused
contended that the impugned judgment has been passed by the learned
Trial Court after proper appreciation of both facts and law. He further
contended that the learned Trial Court has correctly appreciated the
evidence in its true perspective and the impugned judgment does not
require any interference by this Court. Therefore, he submitted that the
instant appeal, which sans merits, be dismissed.
9. We have heard learned Senior Additional Advocate General
5 Neutral Citation No. ( 2025:HHC:9928-DB )
for the appellant-State as well as learned counsel for the
respondent/accused and also carefully examined the entire records.
10. It is well settled by the Hon’ble Apex Court in a catena of
decisions that an Appellate Court has full power to review, re-appreciate
and reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in case of
acquittal there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and strengthened by the
trial Court. Further, if two reasonable views are possible on the basis of
the evidence on record, the Appellate Court should not disturb the finding
of acquittal recorded by the trial Court.
11. The scope of power of Appellate Court in case of appeal
against acquittal has been dealt with by the Hon’ble Apex Court in
Muralidhar alias Gidda & another Vs. State of Karnatka reported in
(2014) 5 SCC 730, which reads as under :-
“10. Lord Russell in Sheo Swarup [1], highlighted the
approach of the High Court as an appellate court hearing the
appeal against acquittal. Lord Russell said,
“… the High Court should and will always give proper
weight and consideration to such matters as (1) the views of
the trial Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a
6 Neutral Citation No. ( 2025:HHC:9928-DB )
presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to the
benefit of any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a Judge who
had the advantage of seeing the witnesses.” The opinion of
the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while
dealing with the powers of the High Court in an appeal against
acquittal under Section 417 of the Criminal Procedure Code
observed:
“7………..the High Court has full power to review the
evidence upon which the order of acquittal was founded, but
it is equally well settled that the presumption of innocence of
the accused is further reinforced by his acquittal by the trial
court, and the findings of the trial court which had the
advantage of seeing the witnesses and hearing their
evidence can be reversed only for very substantial and
compelling reasons.”
12. The approach of the appellate court in the appeal against
acquittal has been dealt with by this Court in Tulsiram Kanu [3],
Madan Mohan Singh [4], Atley [5] , Aher Raja Khima [6], Balbir
Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton [10],
Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem Karan [13],
Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16],
Tota Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan [20],
Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23], K.
Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa [26]. It is
not necessary to deal with these cases individually. Suffice it to say
that this Court has consistently held that in dealing with appeals
against acquittal, the appellate court must bear in mind the
following:
(i) There is presumption of innocence in favour of an
accused person and such presumption is strengthened by
the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal
against acquittal,
(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as extensive
as its powers in appeals against convictions but the
appellate court is generally loath in disturbing the finding of
fact recorded by the trial court. It is so because the trial
court had an advantage of seeing the demeanor of the
witnesses. If the trial court takes a reasonable view of the
facts of the case, interference by the appellate court with the
judgment of acquittal is not justified. Unless, the conclusions
reached by the trial court are palpably wrong or based on
erroneous view of the law or if such conclusions are allowed
to stand, they are likely to result in grave injustice, the
7 Neutral Citation No. ( 2025:HHC:9928-DB )
reluctance on the part of the appellate court in interfering
with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is inclined to
take a different view, interference with the judgment of
acquittal is not justified if the view taken by the trial court is a
possible view. The evenly balanced views of the evidence
must not result in the interference by the appellate court in
the judgment of the trial court.”
12. The Hon’ble Supreme Court in Rajesh Prasad vs. State of
Bihar & another, (2022) 3 SCC 471, observed as under:-
“31.The circumstances under which an appeal would be
entertained by this Court from an order of acquittal passed by a
High Court may be summarized as follows:
31.1.Ordinarily, this Court is cautious in interfering with an
order of acquittal, especially when the order of acquittal has been
confirmed up to the High Court. It is only in rarest of rare cases,
where the High Court, on an absolutely wrong process of reasoning
and a legally erroneous and perverse approach to the facts of the
case, ignoring some of the most vital facts, has acquitted the
accused, that the same may be reversed by this Court, exercising
jurisdiction under Article 136 of the Constitution. [State of U.P. v.
Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an
appeal are prompted by the reluctance to expose a person, who
has been acquitted by a competent court of a criminal charge, to
the anxiety and tension of a further examination of the case, even
though it is held by a superior court. [Arunchalam v. P.S.R.
Sadhanantham (1979) 2 SCC 297] An appeal cannot be
entertained against an order of acquittal which has, after recording
valid and weighty reasons, has arrived at an unassailable, logical
conclusion which justifies acquittal. [State of Haryana vs. Lakhbir]
31.2.However, this Court has on certain occasions, set
aside the order of acquittal passed by a High Court. The
circumstances under which this Court may entertain an appeal
against an order of acquittal and pass an order of conviction, may
be summarized as follows:
31.2.1.Where the approach or reasoning of the High Court
is perverse;
(a)Where incontrovertible evidence has been rejected by
the High Court based on suspicion and surmises, which are
rather unrealistic. [State of Rajasthan v. Sukhpal Singh
(1983) 1 SCC 393] For example, where direct, unanimous
accounts of the eyewitnesses, were discounted without
cogent reasoning. [State of U.P. vs. Shanker 1980 Supp
SCC 489]
(b) Where the intrinsic merits of the testimony of relatives,
living in the same house as the victim, were discounted on
8 Neutral Citation No. ( 2025:HHC:9928-DB )
the ground that they were “interested” witnesses. [State of
U.P. v. Hakim Singh (1980)
(c)Where testimony of witnesses had been disbelieved by
the High Court, on an unrealistic conjecture of personal
motive on the part of witnesses to implicate the accused,
when in fact, the witnesses had no axe to grind in the said
matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC
393]
(d) Where dying declaration of the deceased victim was
rejected by the High Court on an irrelevant ground that they
did not explain the injury found on one of the persons
present at the site of occurrence of the crime.
[Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]
(e) Where the High Court applied an unrealistic standard
of “implicit proof” rather than that of “proof beyond
reasonable doubt” and therefore evaluated the evidence in a
flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC
99]
(f) Where the High Court rejected circumstantial evidence,
based on an exaggerated and capricious theory, which were
beyond the plea of the accused; [State of Maharashtra v.
Champalal Punjaji Shah (1981) 3 SCC 610]
(g) Where the High Court acquitted the accused on the
ground that he had no adequate motive to commit the
offence, although, in the said case, there was strong direct
evidence establishing the guilt of the accused, thereby
making it necessary on the part of the prosecution to
establish “motive”. [State of A.P. v. Bogam Chandraiah
(1990) 1 SCC 445]
31.2.2.Where acquittal would result is gross miscarriage of
justice;
(a)Where the findings of the High Court, disconnecting the
accused persons with the crime, were based on a
perfunctory consideration of evidence, [State of U.P. v.
Pheru Singh 1989 Supp (1) SCC] or based on extenuating
circumstances which were purely based in imagination and
fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]
(b) Where the accused had been acquitted on ground of
delay in conducting trial, which delay was attributable not to
the tardiness or indifference of the prosecuting agencies,
but to the conduct of the accused himself; or where accused
had been acquitted on ground of delay in conducting trial
relating to an offence which is not of a trivial nature. [State
of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC
610].”
13. In H.D. Sundara & others vs. State of Karnataka, (2023) 9
SCC 581, the Hon’ble Supreme Court has observed that the Appellate
9 Neutral Citation No. ( 2025:HHC:9928-DB )
Court cannot overturn acquittal only on the ground that after re-
appreciating evidence, it is of the view that the guilt of the accused was
established beyond a reasonable doubt. The relevant portion of the
above judgment is as under:-
“8. In this appeal, were are called upon to consider the legality
and validity of the impugned judgment rendered by the High Court
while deciding an appeal against acquittal under Section 378 of the
Code of Criminal Procedure, 1973 (for short “CrPC“). The
principles which govern the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section 378 CrPC
can be summarized as follows:
8.1.The acquittal of the accused further strengthens the
presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal,
is entitled to reappreciate the oral and documentary evidence;
8.3.The appellate court, while deciding an appeal against acquittal,
after reappreciating the evidence, is required to consider whether
the view taken by the trial court is possible view which could have
been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view was
also possible; and
8.5.The appellate court can interfere with the order of acquittal
only if it comes to a finding that the only conclusion which can be
recorded on the basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable doubt and no
other conclusion was possible.
9.Normally, when an appellate court exercises appellate
jurisdiction, the duty of the appellate court is to find out whether the
verdict which is under challenge is correct or incorrect in law and
on facts. The appellate court normally ascertains whether the
decision under challenge is legal or illegal. But while dealing with
an appeal against acquittal, the appellate court cannot examine the
impugned judgment only to find out whether the view taken was
correct or incorrect. After re-appreciating the oral and documentary
evidence, the appellate court must first decide whether the trial
court’s view was a possible view. The appellate court cannot
overturn acquittal only on the ground that after re-appreciating
evidence, it is of the view that the guilt of the accused was
established beyond a reasonable doubt. Only recording such a
conclusion an order of acquittal cannot be reversed unless the
appellate court also concludes that it was the only possible
conclusion. Thus, the appellate court must see whether the view
taken by the trial court while acquitting an accused can be
reasonably taken on the basis of the evidence on record. If the
view taken by the trial court is a possible view, the appellate court
cannot interfere with the order of acquittal on the ground that
10 Neutral Citation No. ( 2025:HHC:9928-DB )
another view could have been taken.”
14. Thus, the law on the issue can be summarized to the effect
that in exceptional cases where there are compelling circumstances, and
the judgment under appeal is found to be perverse, the Appellate Court
can interfere with the order of acquittal. Further, if two views were
possible on the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the Trial Court,
merely, because the Appellate Court could have arrived at a different
conclusion than that of the Trial Court.
15. In the instant case, the accused has been tried for
commission of the offence under Section 20 NDPS Act on the allegation
that on 28.09.2012 at around 11.50 AM, near ITBP Office NH-22, he was
found in conscious and exclusive possession of 3.150 kgs of charas.
16. To substantiate the charge framed against the respondent-
accused and to bring home the guilt of the accused, the prosecution
examined as many as 16 witnesses. However, case of the prosecution
mainly rests upon the statements of PW-7 Krishan Chand, PW-8
Gurbaksh Singh, PW-13 ASI Rajesh Kumar, PW-14 C. Biri Singh and
PW-15 Dy. SP Vijay Sharma (Investigating Officer), who have been
examined primarily to prove the search, recovery and seizure of 3.150
kgs of charas in question from the exclusive and conscious possession
of the accused.
11 Neutral Citation No. ( 2025:HHC:9928-DB )
17. PW-7 Krishan Chand and PW-8 Gurbaksh Singh, who are
the independent witnesses, did not support the prosecution case and as
such, they were declared hostile. They were cross-examined at length by
the learned Public Prosecutor, however, nothing favourable could be
elicited from their cross-examination. Both these witnesses denied the
suggestion of learned Public Prosecutor that on 29.09.2012, they were
on way to Shimla in Bus No.CH-01G08893 and that the accused was
occupying Seat No.40 in the bus and his mobile was checked by Dy. SP.
They further denied that the contraband was recovered from the
possession of the accused in their presence.
18. It is well settled that the conviction can be based upon the
testimony of the police officials, provided that such testimony is reliable,
trustworthy and confidence inspiring. In Pramod Kumar Versus State
(Government of NCT of Delhi), (2013) 6 Supreme Court Cases 588,
the Hon’ble Supreme Court has held that 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 scrutinizing the evidence, the Court
finds the evidence of the police officer as unreliable and untrustworthy,
the Court may disbelieve him but it should not do so solely on the
presumption that a witness from the Department of Police should be
viewed with distrust. Para-13 of the judgment reads as under:-
“13. This Court, after referring to State of U.P. v. Anil Singh, State
(Govt. of NCT of Delhi) v. Sunil and Ramjee Rai v. State of Bihar
12 Neutral Citation No. ( 2025:HHC:9928-DB )
has laid down recently in Kashmiri Lal v. State of Haryana 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 show their
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 as unreliable and untrustworthy, the court may
disbelieve him but it should not do so solely on the presumption
that a witness from the Department of Police should be viewed
with distrust. This is also based on the principle that quality of the
evidence weighs over the quantity of evidence.”
19. Similarly, in Baldev Singh Versus State of Haryana, (2015)
17 Supreme Court Cases 554, the Hon’ble Supreme Court has held
that evidence of police witnesses cannot be discarded merely on the
ground that they belong to police force and interested in the investigation
and their desire to see the success of the case. Relevant para of the
judgment reads as under:-
“10. There is no legal proposition that evidence of police officials
unless supported by independent evidence is unworthy of
acceptance. Evidence of police witnesses cannot be discarded
merely on the ground that they belong to police force and
interested in the investigation and their desire to see the success
of the case. Prudence however requires that the evidence of
police officials who are interested in the outcome of the result of
the case needs to be carefully scrutinised and independently
appreciated. Mere fact that they are police officials does not by
itself give rise to any doubt about their creditworthiness.”
20. In Surinder Kumar Versus State of Punjab, (2020) 2
Supreme Court Cases 563, the Hon’ble Supreme Court has held that
the Court cannot start with the presumption that the police records are
untrustworthy. As a presumption of law, the presumption should be the
other way round. Para-16 of judgment reads as under:-
13 Neutral Citation No. ( 2025:HHC:9928-DB )
“16. In State (NCT of Delhi) Vs. Sunil it was held as under: (SCC
p.655)“It is an archaic notion that actions of the police officer
should be approached with initial distrust. It is time now to
start placing at least initial trust on the actions and the
documents made by the police. At any rate, the court cannot
start with the presumption that the police records are
untrustworthy. As a presumption of law, the presumption
should be the other way round. The official acts of the police
have been regularly performed is a wise principle of
presumption and recognised even by the legislature”.
21. Therefore, in view of the aforesaid settled legal position, the
testimony of police witnesses cannot be rejected on the ground of non-
corroboration by independent witnesses, however such testimony needs
to be carefully scrutinized. The same must inspire confidence and should
be consistent with the case set up by the prosecution. In case there are
material contradictions, which goes to the root of the case and make the
prosecution case highly doubtful, then this Court would obviously be
circumspect while placing reliance on such testimony.
22. We have closely scrutinized the entire evidence on record
especially the statements of police witnesses but from the close scrutiny
of the same, we are of the considered opinion that the prosecution has
failed to prove its case against the accused beyond shadow of
reasonable doubt.
23. So far as the statements of PW-13 ASI Rajesh Kumar,
PW-14 Constable Biri Singh and PW-15 Dy.SP Vijay Sharma
(Investigating Officer), are concerned, all these witnesses have deposed
that on 28.09.2012, when the police party was on patrolling duty near
14 Neutral Citation No. ( 2025:HHC:9928-DB )
Tara Devi in Government Vehicle bearing Registration No. HP-03A-1426,
then at about 10.30 A.M., a secret information was received that one
person named Shiv Kumar was coming from Dalash, District Kullu
alongwith charas, whose mobile number was 8894164432. Thereafter, a
naka was laid and vehicles were checked and when a Bus bearing
No.CH-01G-8893 came from Shimla side, it was stopped for checking
and the person, who was sitting at seat No.40, was asked to disclose his
name, he disclosed his name as Shiv Kumar. Thereafter, for ascertaining
his name, when a ring was given on his Mobile No.8894164432, the said
mobile rang-up in his pocket. The accused was having a bag (pithu bag)
in his lap and thereafter driver Gurbaksh and conductor Krishan Kumar
of the bus were got associated as witnesses and then the accused was
apprised about his right to be searched before a Magistrate or Gazetted
Officer, on which he consented to be searched by the police party
present on the spot. Thereafter, the pithu bag being carried by the
accused was searched and during search, one sweater and one carry
bag wrapped with cello tap were taken out and after opening the same,
one shoe box, which was also wrapped with cello tap, was taken out and
on opening the said shoe box, a black coloured substance was found.
On smelling and experience, it was found to be charas. The substance
was got weighed with the help of electronic weighing machine and it was
found to be 3 kgs 150 grams with carry bag and shoe box. The same
15 Neutral Citation No. ( 2025:HHC:9928-DB )
was put in a cloth parcel along with sweater in presence of the
independent witnesses and PW-13 ASI Rajesh by affixing six seals of
seal impression ‘H’ and NCB form in triplicate was filled. Seal impression
was also taken separately on a piece of cloth and the seal was given to
witness Krishan Chand.
24. Perusal of the record reveals that there are various
contradictions and inconsistencies in the statements of police witnesses.
PW-15 Dy. SP Vijay Sharma stated that the accused was apprised about
his right to be searched before a Magistrate and Gazetted Officer, on
this, he consented to be searched by the police party, vide memo
Ext.PW13/A. However PW-13 ASI Rajesh Kumar nowhere stated that
option was also given to accused to have right to be searched before the
Magistrate. Contradictory to the statement of PW-15 Dy.SP Vijay
Sharma, PW-13 ASI Rajesh Kumar stated that two options were given,
i.e. option to be searched before gazetted officer and second to police
officer. So far as the consent memo Ext.PW13/A under Section 50 of
NDPS Act is concerned, the said memo is in printed form and only blanks
are shown to be filled up. PW-16 ASI Pratap Singh, who was one of the
members of the raiding party,vaguely stated that the accused was
apprised about his legal right by Dy.SP Vijay Sharma, vide memo
Ext.PW13/A. This witness nowhere deposed as to whether option of
search before Magistrate or Gazetted Officer as per legal right of
16 Neutral Citation No. ( 2025:HHC:9928-DB )
accused was conveyed to him or not. PW-14 Constable Biri Singh had
also given different version regarding compliance of Section 50 of NDPS
Act by deposing that Dy. SP Vijay Sharma asked the accused that he
had a right to give his personal search to Dy.SP or to Gazetted Officer.
This witness nowhere stated that option was given to accused to be
searched before the Magistrate.
25. PW-15 Dy.SP Vijay Sharma stated that the accused was
having Nokia-1100 mobile having sim No.8894164432, however, there is
no documentary evidence on record to show that said mobile phone was
deposited in the Malkhana. PW-10 HC Parkash Chand nowhere stated
Nokia Mobile-1100 was deposited in the malkhana and that he had made
any entry to this effect. PW-15 produced mobile Nokia-1100 Ext.PX
alongwith battery and SIM at the time of recording his statement before
the court on 11.07.2014 and deposed that the said mobile was brought
by him from Police Station State CID Bharari. However, in his cross-
examination, this witness stated that mobile Ext.PX was not sealed and
he had not brought any record qua depositing or taking out the mobile
phone from the malkhana. Therefore, no reliance can be placed upon
the prosecution story that the mobile phone Ext.PX belonged to the
accused, especially when no documentary evidence has been placed on
record to show that said mobile and SIM belonged to the accused. The
Investigating Officer had ample opportunity to collect documentary
17 Neutral Citation No. ( 2025:HHC:9928-DB )
evidence to show that Nokia mobile phone-1100 and SIM bearing
No.8894164432 belonged to the accused, however, he did not collect
any such evidence. In absence of any such material evidence available
on record, the prosecution has failed to establish on record that the
Nokia Mobile Phone-1100 alongwith SIM bearing No.8894164432
belonged to the accused and it also failed to connect the said mobile
phone with the accused as no documentary evidence has been placed
on record or produced to show that on 28.09.2012 PW-15 Dy.SP. Vijay
Sharma had given missed call on Nokia mobile-1100 Ext.PX having SIM
No.8894164432 at the time of checking of bus to identify the accused. It
has also come on record that in the bus there were so many passengers,
However, the case of the prosecution is silent as to who were sitting by
the side of seat No.40. PW-15 Dy.SP Vijay Sharma, in his cross-
examination could not disclose about the occupants of seats No.39 and
41 in the bus, who were the most material witnesses and the
Investigating Officer did not bother to associate them. No satisfactory
reason has been given by the prosecution as to why the said material
witnesses were not associated, despite having opportunity to associate
them. The Investigating Officer had preferred to associate only driver and
conductor of the bus, who did not support the prosecution story. Hence,
due to various contradictions, discrepancies and inconsistencies in the
statements of police witnesses, the same does not inspire confidence.
18 Neutral Citation No. ( 2025:HHC:9928-DB )
26. Law is well settled with regard to the fact that howsoever
strong the suspicion may be, it cannot take the place of proof. Strong
suspicion, coincidence, grave doubt cannot take the place of proof. The
Hon’ble Supreme Court in Raj Kumar Singh Vs. State of Rajasthan,
(2013) 5 SCC 722 on this aspect of the matter held as under:-
“21. Suspicion, howsoever grave it may be, cannot take the
place of proof, and there is a large difference between something
that `may be proved and `will be proved. In a criminal trial,
suspicion no matter how strong, cannot and must not be
permitted to take place of proof. This is for the reason, that the
mental distance between `may be and `must be is quite large and
divides vague conjectures from sure conclusions. In a criminal
case, the court has a duty to ensure that mere conjectures or
suspicion do not take the place of legal proof. The large distance
between `may be true and `must be true, must be covered by
way of clear, cogent and unimpeachable evidence produced by
the prosecution, before an accused is condemned as a convict,
and the basic and golden rule must be applied. In such cases,
while keeping in mind the distance between `may be true and
`must be true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny based upon a
complete and comprehensive appreciation of all features of the
case, as well as the quality and credibility of the evidence brought
on record. The court must ensure, that miscarriage of justice is
avoided and if the facts and circumstances of a case so demand,
then the benefit of doubt must be given to the accused, keeping
in mind that a reasonable doubt is not an imaginary, trivial or a
merely probable doubt, but a fair doubt that is based upon reason
and common sense.”
27. Consequently, in view of the detailed discussion made
hereinabove, we are of the firm opinion that the prosecution has failed to
prove its case against the accused beyond reasonable doubt. The view
taken by the learned Trial Court while acquitting the accused under
Section 20 of NDPS Act is a reasonable view based on the evidence on
19 Neutral Citation No. ( 2025:HHC:9928-DB )
record and the same cannot be said to be perverse or contrary to the
material on record. Hence, no interference in the judgment of acquittal
dated 07.11.2014, rendered by the learned Special Judge-I, Shimla, HP,
in Sessions Trial No.4-S/7 of 2013, is required as the same is the result
of proper appreciation of evidence and law. The appeal, which is devoid
of merits, deserves dismissal and is accordingly dismissed. Bail bonds
are discharged.
28. In view of the provisions of Section 481 of Bhartiya Nagarik
Suraksha Sanhita, 2023, the respondent is directed to furnish bail bonds
in the sum of Rs.50,000/- with one surety in the like amount to the
satisfaction of the learned Trial Court within a period of four weeks with
the stipulation that in the event of Special Leave Petition being filed
against this judgment, or on grant of the leave, the respondent on receipt
of notice thereof, shall appear before the Hon’ble Supreme Court.
The appeal is accordingly disposed of, so also the pending
miscellaneous application(s), if any.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
April 09, 2025
(VH)
