( 2025:HHC:35987 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 596 of 2024 Reserved on: 10.10.2025 Decided on: 29.10.2025 __________________________________________________________ Shiv Kumar ...Appellant Versus State of Himachal Pradesh …Respondent __________________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? __________________________________________________________ For the appellant: Mr. M.A. Safee, Mr. Pranav Kaushal and Mr.Sameer Miyan, Advocates. For the respondent: Mr. Ankush Thakur, Deputy Advocate General. Sushil Kukreja, Judge The instant appeal filed under Section 415 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short, ‘BNSS’), laying challenge to judgment of conviction dated 03.10.2024 and order of sentence dated 04.10.2024, passed by the learned Special Judge-II, Hamirpur, H.P., in Sessions Trial Filing No. 423 of 2021, titled State of Himachal Pradesh Versus Shiv Kumar, whereby the appellant (hereinafter referred to as the accused), was convicted and sentenced to undergo rigorous imprisonment for the period of 3 months and to pay fine of Rs.5,000/- for 1 Whether reporters of Local Papers may be allowed to see the judgment? commission of the offence punishable under Section 20 (b)(ii) (A) of Narcotics Drugs & Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) and for commission of the offence punishable under Section 21(b) of NDPS Act, he was sentenced to undergo rigorous imprisonment for the period of two years and to pay fine of Rs.25,000/-. 2. Briefly stated the facts of the case, as per prosecution story, are that on 24.02.2021, while a police party headed by Sub Inspector Kulwant Kumar was on patrolling/Nakabandi duty towards Bhota side in government vehicle bearing registration No. HP22C-5269, being driven by HHC Rajesh Kumar and laid a Naka at Bajura Nala on Bhota to Saloni, then at about 03:05 P.M, one white coloured scooty bearing registration No. HP21B-6674 came from Saloni side, which was stopped by the police. On seeing police, the person, who was riding the scooty got perplexed and on being inquired by the police, he disclosed his name as Shiv Kumar (appellant-accused herein). On having suspicion, the Investigating Officer asked him to show the documents and to open the dickey for checking. The accused opened the dickey and during checking, one red carry bag was found. On checking the said carry bag, one plastic packet containing two black coloured stick shaped substance, wrapped in poly wrappers and one another transparent poly packet tied with rubber band containing creamish colour substance in granular form was found. On smelling and experience, the said black coloured 2 ( 2025:HHC:35987 ) substance was found to be charas and the creamish colour substance was found to be chitta/heroin. Since it was an isolated place and there was no habitation nearby to associate any independent witness, as such, Constable Amit and HASI Bali Ram were associated as witnesses in the proceedings by the Investigating Officer. On weighment, the recovered charas was found to be 9.54 grams and chitta was found to be 5.25 grams. Thereafter, the recovered contraband charas and chitta were sealed into two separate cloth parcels in the same manner and then each parcel was sealed with six seals of seal impression ‘T’. Sample seal was separately taken on a piece of cloth. NCB form, in triplicate, was filled and seal after use was handed over to Constable Amit Kumar. Thereafter, the Investigating Officer prepared the rukka and sent the same through Constable Amit Kumar to the police station, on the basis of which, FIR in question was registered against the accused. Police recorded the statements of the witnesses and prepared the spot map. The accused was arrested and got medically examined. The cloth parcels, containing the recovered contraband, were handed over to SI/SHO Dharam Singh, who, after checking the entries, re-sealed the same with three seals each of seal impression ‘Z’ and deposited the case property in the Malkhana. Special report was also prepared and delivered to the Addl. Superintendent of Police, Hamirpur. The case property was sent to SFSL, Junga for analysis. 3 ( 2025:HHC:35987 ) 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 31.01.2022 framed charges against the accused under Sections 20 and 21 of NDPS Act, to which he did not plead guilty and claimed trial. 5. In order to prove its case, the prosecution examined as many as 17 witnesses and thereafter statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all set of incriminating evidence led by the prosecution against him, besides pleaded to be innocent and being falsely implicated. However, he did not examine any witness in his defence. 6. On the basis of evidence led on record by the prosecution, the learned trial Court convicted the accused, vide the impugned judg- ment and sentenced him as per the description given hereinabove. 7. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the appellant/accused approached this Court by way of the instant appeal, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence. 8. The learned counsel for the appellant contended that the prosecution has failed to prove that the charas and the heroin/chitta in 4 ( 2025:HHC:35987 ) question were recovered from the exclusive and conscious possession of the accused. He further contended that as no independent witness was associated by the prosecution and the case of the prosecution is based on the testimonies of police officials only, who were interested in the outcome of the result of the case, therefore, the case of the prosecution has become doubtful. 9. On the other hand, learned Deputy Advocate General supported the judgment of the learned trial Court and contended that since the charges against the accused have been duly proved by the prosecution beyond reasonable doubt, the learned trial Court has rightly convicted him on the basis of proper appreciation of evidence. 10. I have heard the learned counsel for the appellant as well as the learned Deputy Advocate General and also gone through the record carefully. 11. The accused stood charged for commission of the offences punishable under Sections 20 and 21 of NDPS Act for having been found in exclusive and conscious possession of 9.54 grams charas and 5.25 grams of heroin/chitta. To substantiate the said charges and to bring home the guilt of the accused, the prosecution examined as many as 17 witnesses. However, the case of the prosecution mainly rests upon the statements of PW-1 Constable Amit Kumar, PW-13 SI Kulwant Kumar (Investigating Officer) and PW-14 ASI Gurdev Singh (another 5 ( 2025:HHC:35987 ) Investigating Officer of the case). These are the most material witnesses of the prosecution, who have been examined primarily to prove the search, recovery and seizure of heroin/chitta, in question, from the exclusive and conscious possession of the accused. 12. PW-1 Constable Amit Kumar as well as PW-13 SI Kulwant Kumar have stated with one voice that on 24.02.2021, while a police party was on patrolling and Nakabandi duty towards Bhota in connection with theft incidents in government vehicle No.HP22C-5269 being driven by HHC Rajesh Kumar, it had laid a Naka at Bajura Nala on Bhota to Saloni road. At about 3:05 PM, when they were checking the vehicles, one white coloured scooty beairng registration No. HP21B-6674 came from Saloni side, which was signaled to spot. There was only one person on the scooty and on seeing the police, he got perplexed and stopped his scooty at some distance. Thereafter, PW-13 SI Kulwant Singh asked his name and address, who disclosed his name as Shiv Kumar and then he was asked to show the documents of scooty and to open the dickey for checking. When he opened the dickey of the scotty, some of his belongings and one red coloured carry bag were found there. On checking the said carry bag, one plastic packet, containing two black coloured stick shaped substance, wrapped in poly wrappers and one another transparent poly packet, tied with rubber band, containing creamish colour substance in granular form were found. As per the 6 ( 2025:HHC:35987 ) experience and on smelling, the said substances were found to the charas and the chitta/heroin, respectively, regarding which, memo Ext. PW1/A was prepared. Thereafter, the recovered charas and heroin were weighed separately with the help of electronic scale and on weighing, the charas was found to be 9.54 grams and heroin was found to be 5.25 grams. 13. PW-14 ASI Gurdev Singh deposed that on 24.02.2021, he alongwith HC Pawan Kumar visited Bajura Nala on Bhota to Saloni road for investigation of the case as the second Investigating Officer. PW-1 Constable Amit also returned to the spot. PW-13 ASI Kulwant, HASI Bali Ram, HHG Ramesh and accused Shiv Kumar were present on the spot. PW-13 ASI Kulwant handed over two cloth parcels each sealed with six seals of seal impression ‘T’ alongwith sample seal, NCB form in Triplicate, seizure memo and other documents, including scooty and accused to him, vide memo Ext.P1/PW13. On the demarcation of PW-13 ASI Kulwant, he prepared the spot map Ext.P2/PW13 and thereafter PW-13 ASI Kulwant left the spot. He recorded the statements of witnesses and arrested the accused on the spot. After completion of the investigation on the spot, accused was taken to Dr. RKGMC Hamirpur for medical examination in the official vehicle and obtained MLC and blood samples of the accused. 7 ( 2025:HHC:35987 ) 14. So far as the conviction on the basis of testimony of the police officials is concerned, 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 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.” 15. Similarly, in Baldev Singh Versus State of Haryana, (2015) 17 Supreme Court Cases 554, the Hon’ble Supreme Court has held that 8 ( 2025:HHC:35987 ) 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.” 16. 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:- “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”. 17. Therefore, in view of the aforesaid settled legal position, it is to be examined as to whether the search, recovery and seizure of charas as well as heroin/chitta in question, are doubtful as contended by the 9 ( 2025:HHC:35987 ) learned counsel for the appellant. I have carefully perused the statements of police officials who were present on the spot and in whose presence the contraband was recovered. However, I did not find any infirmity in their statements so far as recovery of charas and heroin/chitta in question from the possession of the accused is concerned. It has been categorically stated by these witnesses that during checking of dickey of the scooty, one red coloured carry bag was found and on checking the said carry bag, one plastic packet, containing two black coloured stick shaped substance, wrapped in poly wrappers and one another transparent poly packet, tied with rubber band containing creamish colour substance in granular form, were found. As per the experience and on smelling, the said substances were found to the charas and chitta/heroin, respectively. Thereafter, the recovered charas and the heroin were weighed separately with the help of electronic scale and on weighing, the charas was found to be 9.54 grams and heroin was found to be 5.25 grams. Both of these witnesses successfully withstood the test of cross- examination and nothing favourable could be extracted from their cross- examinations. Their statements are quite natural, consistent and reliable on the point of recovery of charas and heroin/chitta and there is no reason to disbelieve them. Neither it is suggested or indicated, nor it is proved that the aforesaid police officials had any ill-will or any animosity against the accused. 10 ( 2025:HHC:35987 ) 18. Hence, in view of the facts and circumstances of the present case, the evidence of the aforesaid police officials cannot be discarded merely for the reason that they are police officials and they are interested in the outcome of the result of the case. From the perusal of their statements, it cannot be said that the case of the prosecution is doubtful on the point of search, recovery and seizure of charas as well as heroin/chitta in question only because of the fact that no independent witness was associated as contended by the learned counsel for the appellant. 19. Learned counsel for the appellant next contended that there was a delay in depositing the sample at Malkhana after obtaining the result from SFSL, Junga, which had caused serious prejudice to the accused. In this context, I have gone through the testimony of PW-5 HHC Vivek Rangra who deposed that on 26.03.2021 he had gone to SFSL, Junga, Bharari, Shimla on the official tour and while returning from SFSL, Junga on 27.03.2021, he brought one sealed parcel of result alongwith two sealed parcels, which were sealed with six seals of ‘T’ each and three seals of ‘Z’ each and two seals of JMFC(2), HMR each and two seals of SFSL, Junga and handed over to MHC HC Nazeer Ahmed, PS Sadar, vide RC Ext., P1/PW5 No.157/2021 dated 29.03.2021. 20. Thus, perusal of the aforesaid statement shows that PW-5 HHC Vivek Rangra had brought the case property from SFSL, Junga on 11 ( 2025:HHC:35987 ) 27.03.2021 and deposited the same at Malkhana on 29.03.2021 and he specifically deposed that he had not tampered with the case property, nor allowed anybody to tamper with the same till it remained in his custody. He was cross-examined at length, however, there is no material on record to suggest that he had tampered the case property at any point of time while it remained in his custody. Learned counsel for the appellant had failed to point out any prejudice having been caused to the accused due to the delay in depositing the case property in the Malkhana. Therefore, it cannot be said that any prejudice was caused to the accused due to the delay in depositing the case property at Malkhana while it was received from SFSL, Junga. 21. No other point was urged before me. 22. Therefore, in view of the detailed discussion made and the law taken note hereinabove, the prosecution has been able to prove, beyond reasonable doubt, that 9.54 grams charas and 5.25 grams of heroin/chitta were recovered from the exclusive and conscious possession of the accused and, as such, the impugned judgment of conviction dated 03.10.2024 and order of sentence dated 04.10.2024, passed by the learned Special Judge-II, Hamirpur, H.P., in Sessions Trial Filing No. 423 of 2021, do not require any interference, being based upon proper appreciation of the evidence and provisions of relevant law. 12 ( 2025:HHC:35987 ) 23. Accordingly, the appeal is dismissed and the impugned judgment of conviction as well as the order of sentence passed by the learned trial Court are upheld. Pending miscellaneous application(s), if any, shall also stand disposed of. ( Sushil Kukreja ) Judge October 29, 2025 (V.Himalvi) 13 ( 2025:HHC:35987 )