Official Witnesses' Testimony Reliable Despite Hostile Independent Witness & Minor Discrepancies in ND&PS Act Case: Himachal Pradesh High Court - 2025-04-10

Himachal Pradesh High Court Upholds ND&PS Conviction, Cites Reliability of Official Witnesses

Shimla: The Himachal Pradesh High Court has dismissed an appeal against a conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (ND&PS Act), affirming that the testimony of official witnesses can be reliable, even when independent witnesses turn hostile and minor discrepancies exist in the prosecution's case.

In a judgment delivered on April 10, 2025, by the bench of Justice RakeshKainthla , the Court upheld the conviction and sentence passed by the Special Judge-II, Solan, against appellant Devender Kumar . The appellant had been convicted for possession of charas and sentenced to four months rigorous imprisonment and a fine of ₹4,000/-.

Case Background

According to the prosecution, on August 12, 2009, a police party on patrol duty in Waknaghat saw the accused, Devender Kumar , carrying a polythene bag. Upon seeing the police vehicle, he allegedly attempted to flee down a hill. The police apprehended him, and a search of the bag revealed a cloth (dhoti) containing charas wrapped in a transparent polythene packet. The substance was weighed at the spot using a scale borrowed from a nearby shopkeeper and found to be 260 grams. The case property was sealed, and the accused was arrested. Subsequent FSL analysis confirmed the substance was charas with a resin content of 33.86% W/W, leading the trial court to calculate the quantity as 88 grams, falling under the category of a small quantity.

Trial Court Findings

The trial court relied heavily on the testimonies of the official witnesses (police constables and officers) who were part of the raiding party and investigation. It found their accounts consistent and held that minor contradictions were natural over time. The court also noted that the mere fact that the independent witness did not support the prosecution was not sufficient to discard the case. Crucially, the court considered the accused's mobile location data, which corroborated his presence at Waknaghat, supporting the prosecution's version of his apprehension there.

Arguments on Appeal

The appellant challenged the conviction on several grounds, arguing that: 1. The trial court failed to properly appreciate the evidence, highlighting material contradictions in the testimony of prosecution witnesses. 2. The independent witness (PW1) did not support the prosecution. 3. The police version was inherently improbable, suggesting the accused would not have attempted to flee if the vehicles were going in the same direction. 4. The integrity of the case property was not established due to issues with sealing and handling. 5. Mandatory provisions like Section 52A of the ND&PS Act regarding sampling were not followed. 6. Association of independent witnesses from the vicinity was not done despite availability. 7. Defence witnesses proved a prior quarrel with a police constable, suggesting false implication. 8. Key documents like the diary and dispatch register were not produced.

The State, conversely, contended that the prosecution had proven its case beyond reasonable doubt, the trial court rightly disregarded minor contradictions, and the integrity of the case property was established.

High Court's Analysis and Findings

Justice Kainthla meticulously examined the evidence and arguments presented:

• Independent Witness: The Court acknowledged that the independent witness (Uma Dutt, PW1) did not support the prosecution. Citing precedents like Sat Paul v. Delhi Admn. and Ian Stilman vs. State , the Court noted that when a witness is permitted to be cross-examined by the party calling them, their credibility is shaken. However, the Court also referenced Budh Ram Versus State of H.P. and numerous Supreme Court judgments ( Sudru , Raja, Selvaraj , Ashok alias Dangra Jaiswal , Raveen Kumar, Rizwan Khan , Surinder Kumar, Kallu Khan ) to reiterate the settled law that non-support or hostility of independent witnesses is not automatically fatal to the prosecution case. The testimony of official witnesses can be relied upon if found trustworthy, especially when corroborated by other evidence, requiring careful scrutiny.
• Discrepancies: Addressing the alleged contradictions (times of apprehension/seizure, distance from Bawri , description of packaging), the Court, guided by judgments like Goverdhan Vs. State of Chhattisgarh and Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , held that minor discrepancies are expected due to human error, lapse of memory, and differing perceptions, particularly when witnesses depose after a significant time gap. These discrepancies were deemed minor or merely apparent, not touching the core of the prosecution's case. The mobile call detail record, showing the accused's presence at Waknaghat, was found to corroborate the prosecution's location claim.
• Absence of Independent Witnesses: The Court affirmed that in cases of chance recovery, as in this instance where the accused allegedly tried to flee upon seeing the police, there is no obligation to associate independent witnesses immediately ( Kashmira Singh Versus State of Punjab ). Associating someone after recovery would serve little purpose. While careful scrutiny of official witnesses is required, their testimony is not to be discarded solely for lack of independent corroboration.
• Improbability of Incident: The argument that the accused running away was improbable was rejected, as it is plausible for someone carrying contraband to attempt escape upon noticing a conspicuous police vehicle.
• Defence Evidence: The defence plea of false implication due to a prior quarrel with a constable was found unconvincing. Citing Budhi Ram Vs State , the Court held that the alleged enmity must be severe enough to motivate false implication, which was not proved by the defence witnesses. The testimonies of defence witnesses regarding the timing and reason for their presence were also found inconsistent and unreliable.
• Integrity of Case Property: The Court rejected challenges to the integrity of the seized charas. Issues raised about handing over the seal were found not fatal, particularly as there's no mandatory rule to hand the seal to an independent person ( Piara Singh v. State of Punjab FB). The non-production of the seal itself was also held not fatal, citing Varinder Kumar v. State of H.P. and Surinder Kumar vs State of Punjab . The crucial factor was the FSL report confirming seals were intact and tallied with sample seals, which established the chain of custody and ruled out tampering ( Baljit Sharma vs. State of H.P , Hardeep Singh vs State of Punjab ).
• Section 52A ND&PS Act: The alleged violation of Section 52A was addressed by referring to judgments like Sandeep Kumar Vs State of H.P. , Narcotics Control Bureau v. Kashif , and Bharat Aambale v. State of Chhattisgarh , which establish that non-compliance or delayed compliance with Section 52A is generally not fatal to the trial unless serious prejudice is shown or it creates doubt about the recovery itself. No such foundational facts were proved by the defence here.
• Diary Register: The non-production of the daily diary register was also held not fatal, following Kalpnath Versus State and Chet Ram Versus State of H.P. , as the prosecution is not obliged to produce these routinely unless sought by the defence.

The Court placed reliance on the trial court's assessment of the witnesses' credibility, having had the advantage of observing their demeanour, in line with the principles laid down in Goverdhan (supra) and Jagdish Singh v. Madhuri Devi .

Conclusion

Finding no material illegality or infirmity in the trial court's judgment, the High Court concluded that the prosecution had proved the conscious possession of charas by the appellant beyond a reasonable doubt. The sentence awarded was also deemed appropriate given the small quantity involved.

Consequently, the appeal was dismissed, and the conviction and sentence were affirmed.