Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1678

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Bal Krishan - Appellant
Versus
State of H.P - Respondent
Cr. Appeal No. 4010 of 2013
Decided On : 19-12-2025

Advocates Appeared:
For the Appellant :Mr Rupinder Singh Minhas, Advocate, vice Mr Tarun K. Sharma, Advocate.
For the Respondent:Mr Prashant Sen, Deputy Advocate General.

Recovery from hand-carried P-Cap exempts Section 50 NDPS; Section 42 inapplicable in public place. Suspicious post-search consent memo and material contradictions in official witnesses on core recovery facts warrant acquittal on benefit of doubt.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 42 and 50 - Recovery of 400 grams charas from polythene bag inside P-Cap carried in hand - Not worn as clothing or personal search - Section 50 inapplicable to search of bag or article carried - Section 42 inapplicable to interception and search in public place or open space. Consent memo mentioning FIR number and specific section in red ink, suggesting preparation after search and recovery - Highly suspicious. Material contradictions in official witnesses regarding distance accused ran, attire worn, items recovered in personal search - Relate to core of recovery and search - Render testimonies unreliable. Independent witness contradictory on presence during recovery. Prosecution case fails for lack of credibility - Acquittal justified. (Paras 12-17, 18-21, 22-35)

(B) Evidence - Official Witnesses - Testimony must show inherent consistency, consistency with documents and probabilities - Minor contradictions peripheral; material ones going to root vitiate case - Court to assess credibility beyond demeanour, considering contradictions, motives, contemporary records. (Paras 26-34)

Facts of the case:
Police on patrol in official vehicle saw accused walking towards them in public place ahead of temple; he turned back on seeing police, apprehended; informed of right to search before gazetted officer or magistrate, consented; personal search yielded nothing incriminating; P-Cap in hand contained polythene with black sticks of charas weighing 400 grams confirmed by smell and analysis (28.14% resin); sealed, investigated, trial court convicted under Section 20, sentenced to 5 years rigorous imprisonment and fine. Appeal urged non-compliance of Sections 42, 50, witness contradictions, independent witness turning hostile.

Findings of Court:
Procedural safeguards of Sections 42, 50 not attracted; however, suspicious consent memo, material contradictions in official testimonies and independent witness inconsistency make recovery doubtful - Link to accused severed; benefit of doubt extended.

Issues: Applicability of Sections 42 and 50 to public place interception and bag recovery; effect of suspicious consent memo; impact of contradictions in witnesses on recovery credibility.

Ratio Decidendi: Search of hand-carried P-Cap exempt from Section 50 as not personal; Section 42 confined to enclosed places - But post-search consent memo and core contradictions in attire, flight distance, personal search recoveries undermine official witnesses; independent witness self-contradictory - Prosecution evidence lacks probative value.

Result: Appeal allowed; conviction and sentence set aside; accused acquitted under Section 20.

Table of Content
1. appeal against ndps section 20 conviction for charas possession. (Para 1 , 2)
2. trial proceedings, witnesses examined, accused denied charges. (Para 3 , 4 , 5)
3. trial court held section 50 inapplicable, convicted accused. (Para 6)
4. non-compliance with ndps sections 42, 50; contradictions alleged. (Para 7 , 9)
5. sections 42, 50 inapplicable to public p-cap recovery. (Para 10)
6. section 42 ndps inapplicable to public place searches. (Para 11 , 12 , 13)
7. section 50 ndps inapplicable to bags or held articles. (Para 14 , 15 , 16 , 17)
8. consent memo suspicious due to pre-search fir reference. (Para 18 , 19 , 20 , 21)
9. independent witness testimony self-contradictory on recovery. (Para 22 , 23)
10. omission by witness on recovery not fatal. (Para 24 , 25)
11. core contradictions on search, attire undermine prosecution case. (Para 26 , 27 , 28 , 29 , 30 , 31)
12. credibility tested by consistency, documents, probabilities. (Para 32 , 33 , 34 , 35)
13. appeal allowed; acquitted on benefit of doubt. (Para 36 , 37)

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment of conviction dated 14.5.2013 and order of sentence dated 16.5.2013, passed by learned Additional Sessions Judge, Hamirpur, District Hamirpur, H.P., (learned Trial Court), vide which the respondent (accused before learned Trial Court) was convicted of committing an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (NDPS) and sentenced to undergo rigorous imprisonment for five years, pay a fine of Rs. 50,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that HC Prakash Chand (PW8), Constable Ramel Singh (PW3) and Constable Suresh Kumar (PW7) were going towards Gasota on 27.10.2010 in the official vehicle bearing registration No. HP-22A-7844, which was being driven by Constable Raj Kumar (PW6). They reached 200 yards ahead of the Gasota temple at about 5.30 PM, when they saw that the accused was coming towards the police vehicle. He got frightened after seeing the police and returned. The police apprehended him. He revealed his name as Bal Krishan. Chuni Lal (PW1) and Hari Dass (not examined) were associated. The accused was informed that the police suspected the possession of narcotics by him, and he had a right to be searched before a Gazetted Officer or a Magistrate. The accused consented to be searched by the police vide memo (Ex.PW1/A). The police gave their personal search to the accused. Nothing incriminating was found in their possession. Memo (Ex.PW1/C) was prepared. The search of the accused was conducted. He had a black P-Cap (Ex.P2) in his right hand, which was checked. It contained a polythene bag (Ex.P3) having black sticks (Ex.P4). HC Prakash Chand (PW8) smelled the sticks and found them to be charas. He weighed the sticks and found their weight to be 400 grams. Sticks were put in a polythene bag from which they were recovered. The polythene bag was put in the P- Cap in the same manner in which it was found. The P-Cap was put in a cloth parcel, and the parcel was sealed with three impressions of seal ‘M’. Seal impression (Ex.PW8/B) was taken on a separate piece of cloth. NCB-1 Form (Ex.PW8/C) was filled- in triplicate, and the impression of seal ‘M’ was put on the form. The parcel was seized vide memo (Ex.PW1/B). HC Prakash Chand (PW8) prepared the rukka (Ex.PW8/D) and sent it to the Police Station, where FIR (Ex.PW9/A) was registered. HC Prakash Chand (PW8) investigated the matter. He prepared the site plan (Ex.PW8/H). He arrested the accused vide memo (Ex.PW1/D). H