1 2025:HHC:24710 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 124 of 2011 Reserved on: 11.07.2025 Date of Decision: 29.07.2025. State of H.P. ...Appellant Versus Gogan Logani ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the appellant : Mr. Lokender Kutlehria, Additional Advocate General. For the Respondent: Mr. V.S. Chauhan, Sr. Advocate, with Mr. Arsh Chauhan, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 13.12.2010, passed by learned Sessions Judge, Sirmour District at Nahan, HP (learned Appellate 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:24710 ) Court) vide which the respondent (accused before the learned Trial Court) was acquitted for the commission of an offence punishable under Section 28 of the Drugs and Cosmetics Act, 1940 (in short ‘Drugs Act’) (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 case are that ASI Ram Phal (PW-1) and H.C. Paramjit Singh (PW-2) were present at Excise Barrier, Kala Amb on 15.3.2002 at 12.00 midnight. They saw the accused wearing a black jacket coming from the Haryana side. They heard some noise when the accused crossed them. They stopped the accused in the presence of Mohan Singh and Rajesh Kumar (PW-3). The accused was found in possession of 38 strips of 10 capsules each of Hypnotec, Nitrazepam capsules B.P. and 16 bottles of Rexcof syrup having 100 ml each, concealed in the jacket worn by the accused. The accused was asked to produce the documents to carry the drugs, but he failed to do so. Hence, he was brought to the Police Post, Kala Amb, with the witnesses. Inspector/SHO K S Pathania (PW-7) was 3 2025:HHC:24710 ) informed about the recovery. He informed Kapil Dhiman (PW-4), the Drugs Inspector, about the recovery. An entry in the rapat roznamcha (Ext.PW1/A) was recorded. Spot map (Ext. PW7/C) was prepared, and an FIR (Ext.PW7/B) was registered in the Police Station. Kapil Dhiman (PW-4) reached the Police Post Kala Amb and demanded the documents from the accused. He also checked the medicines. The accused revealed on inquiry that these were meant for personal use. However, the accused could not produce any prescription slip. Hence, the Drugs Inspector seized the drugs vide form 16 (Ext. PW2/A). He obtained two samples for analysis and prepared the memos (Ext. PW2/B and Ext. PW2/C). He kept 12 bottles of Rexcofs and 22 strips of Nitrazepamin a cardboard box (Ext. M-1) and sealed it in the presence of the accused and the witnesses. He prepared four parts, and each part was signed by the accused and the witnesses. The samples were sent for analysis, and a report (Ext.PW4/C) was issued, showing that the drugs were of the standard quality. The complaint was filed before the Court by the Drugs Inspector. 4 2025:HHC:24710 ) 3. Learned Trial Court recorded the pre-charge evidence and framed the charges against the accused for the commission of offences punishable under Section 27 B (ii) read with Section 18(c) and Section 28 read with Section 18A of the Drugs and Cosmetics Act, to which the accused pleaded not guilty and claimed to be tried. 4. The complainant examined eight witnesses to prove its case. ASI Ram Phal (PW-1) effected the recovery of the drugs. Paramjit Singh (PW2) and Rajesh Kumar (PW-3) are the witnesses to the recovery. Kapil Dhiman (PW-4) conducted the proceedings and filed the complaint before the Court. Jai Pal (PW-5) is the witness to the personal search. Khem Raj (PW-6) carried the samples for chemical analysis. Inspector K.S. Pathania (PW-7) was posted as SHO to whom the information was given. Garima Sharma (PW-8) was posted as a Drugs Inspector, who filed a complaint before the Court. 5. The accused in his statement recorded under Section 313 of Cr. P.C. denied the complainant’s case in its entirety. He stated that witnesses deposed against him because they were interested witnesses. He claimed that 5 2025:HHC:24710 ) he was innocent. No defence was sought to be adduced by the accused. 6. Learned Trial Court held that the testimonies of the witnesses corroborated each other. It was a case of chance recovery, and the non-association of independent witnesses will not affect the present case. The word ‘stock’ means keep, and it is not necessary that the drug should be stored. Mere possession of the drugs is not punishable except when it is for the sale; however, the accused had failed to produce any documents for possessing the drugs as required under Section 18A of the Drugs and Cosmetics Act, and the prosecution's case for the commission of an offence punishable under Section 28 of the Drugs Act was duly proved. Hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 28 of the Drugs and Cosmetics Act and sentenced him to undergo simple imprisonment for six months and pay a fine of ₹ 1000/- for the commission of the aforesaid offence. 7. Being aggrieved by the judgment passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Sessions Judge, Nahan 6 2025:HHC:24710 ) (learned Appellate Court). Learned Appellate Court held that the FIR was lodged on 16.03.2002 at 3.30 p.m., but its copy was forwarded on 18.3.2002 at 9.50 a.m., which is a violation of Section 157 of the Cr.P.C. This showed that the FIR was antedated. The jacket was not produced before the Court, which made the recovery highly suspicious. The site plan did not prove the prosecution's case. Hence, the appeal was accepted and the accused was acquitted. 8. Being aggrieved by the judgment passed by the learned Appellate Court, the State has filed the present appeal asserting that the learned Appellate Court appreciated the evidence in a slipshod and perfunctory manner. The accused was acquitted on flimsy grounds. The prosecution's evidence was not appreciated in its proper perspective. No reason was assigned for discarding the statements of official witnesses. The prosecution's case was proved by the statements of ASI Ram Phal, Rajesh Kumar and Paramjit Singh. The First Information Report was not required to be lodged in the present case as the police had no power to carry out the investigation. The delay in sending the First Information Report to the police is not fatal. The accused did not 7 2025:HHC:24710 ) produce any documents authorising him to possess the drugs. The Jacket was not used for transporting the medicine, and it was not required to be seized. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 9. I have heard Mr. Lokender Kutlehria, learned Additional Advocate General for the appellant/State, and Mr. V.S. Chauhan, learned Senior Advocate, assisted by Mr. Arsh Chauhan, advocate for the respondent/accused. 10. Mr. Lokender Kutlehria, learned Additional Advocate General, submitted that the learned Appellate Court erred in acquitting the accused. The case property was produced before the Court, and the jacket was not required to be produced. The police were not required to register the FIR, and any delay in sending the same to the Magistrate cannot be held to be fatal. Learned Appellate Court had reversed the well-reasoned judgment of the learned Trial Court without assigning any reason. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 8 2025:HHC:24710 ) 11. Mr. V.S. Chauhan, learned Senior Advocate, submitted that there were various contradictions in the statements of the prosecution witnesses, and the integrity of the case property was not established. The learned Appellate Court had taken a reasonable view while acquitting the accused, and this Court should not interfere with the well-reasoned judgment of the learned Appellate Court. He prayed that the present appeal be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence or omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: 9 2025:HHC:24710 ) “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 10 2025:HHC:24710 ) (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a 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. 11 2025:HHC:24710 ) (5) If two reasonable conclusions 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.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) “8. … 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 a 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 12 2025:HHC:24710 ) proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 14. A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed: - “6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, 13 2025:HHC:24710 ) the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question.” 15. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 16. Mr. Kapil Dhiman (PW-1) stated that he seized the drugs vide Form 16 (Ext. PW2/A). He obtained two samples for chemical analysis, which were mentioned in the memos (Ext. PW2/B and Ext.PW2/C). He sealed the remaining medicines in a cardboard box. He returned to Solan after completing the proceedings and sent the samples to chemical analyst, Kandaghat, with the seal impression through peon Hem Raj. 14 2025:HHC:24710 ) 17. Hem Raj (PW-6) stated that he prepared the parcel at the instance of the Drugs Inspector. He tied it with a thread and sealed it. He carried the sample to CTL Kandaghat. He had also carried a khaki envelope with him, which was sealed. He stated in his cross- examination that he had carried the samples to CTL Kandaghat on 20.3.2002. These were sealed by the Drugs Inspector on the same day in the office. 18. Hem Raj (PW-6) was not declared hostile, which means that the complainant has accepted his testimony as correct. His testimony shows that the sample was prepared on 20.3.2002, which is contrary to the statement of Kapil Dhiman, who claimed that he had prepared the sample on the spot on the date of the incident, i.e. 16.3.2002. Therefore, the testimonies of Kapil Dhiman and Hem Raj contradicted each other regarding the place and date of preparing the samples. It appears from their testimonies that there were two samples- one that was prepared on the spot from the drugs produced before the Drugs Inspector, and the second that was prepared by Hem Raj (PW-6) in his office on 20.3.2002. Hence, there is a force in the submission of 15 2025:HHC:24710 ) Mr Virender Singh Chauhan, learned Senior Counsel for the respondent, that the integrity of the case property right from the seizure till analysis has not been established. 19. It is stated in Analysis of Evidence (Second edition, Terence Anderson, David Schum, and William Twining, Cambridge University Press) that before the reliance can be placed on the tangible evidence, the link evidence has to be led to establish that there was no tampering with the same. It has been stated at page 64: “There are three major sources of ancillary evidence that may call into question the authenticity of tangible evidence. The first involves evidence that has been deliberately contrived in order to mislead others, such as a forged document. Errors in recording, transmitting, or processing evidence are the second source. Tangible evidence may pass through many hands before it is offered at trial. The opportunities for processing or handling errors of various kinds increase with the number of hands a tangible item passes through. Blood samples may be mislabeled or even substituted for one another. That is the reason for the requirement that there should be evidence establishing the chain of custody from the time the evidence was discovered (the bloody glove) or generated (an entry into a business record) until the time the evidence is presented at trial. If we do not know all of the links in a chain of custody, we cannot vouch for the authenticity of a tangible item. Finally, the witness whose testimony is 16 2025:HHC:24710 ) offered to establish the authenticity of an item may be mistaken or untruthful.” 20. Similar is the judgment in Jagdev Singh v. State of H.P., 2015 SCC OnLine HP 2520, wherein it was observed: 36. Thus, there is no link evidence establishing the factum of receipt of the sample from the doctor till such time it was handed over to the police official who got it deposited in the laboratory. Whether it was kept in safe custody and not tampered with remains unproven on record. 37. The SHO/Investigating Officer has not deposed that the sample was deposited in the police station. Where the sample was kept between the 13th and 17th June 2009 remains unexplained in the record. Also, the seal-H with which the alleged sample was sealed has not been produced in Court. Crucially and significantly, even the Road Certificate has not been produced on record, which would have only thrown light as to with whom and where the sample was kept at the police station. 38. No doubt, MLC (Ext.PW-6/G) records the sample to be that of Jagdev (accused), but then the Doctor does not specifically state that the sample was sealed. All that he states is that the sample was handed over to the police in a sealed bag. But then, who sealed the same and with which seal, he does not state, and Constable Roshan Lal (PW-5) is also silent about the same. In fact, he is silent about the seal impression. As already observed, ASI Om Prakash and HC Nup Ram are silent with regard to the sample, much less sealing thereof. It is in this backdrop that it was necessary for the prosecution to have produced the original seal or impression thereof, 17 2025:HHC:24710 ) with which the sample was sealed, for it cannot be said with certainty that the sample was not tampered with. 21. It was held by the Division Bench of this Court in Sansar Chand Vs. State of Himachal Pradesh 2023:HHC:10188-DB, that the prosecution has to prove the integrity of the case property. It was observed as under: 15. In State of Rajasthan vs. Daulat Ram, AIR 1980 (SC) 1314, the Hon’ble Supreme Court held that when a sample changed several hands, the entire chain needs to be established with utmost clarity. 16. In Valsala vs. State of Kerala, 1993 Supp. 3 SCC 665, it was held by the Hon’ble Supreme Court that the prosecution was required to establish that during the entire period, when samples were lying with the prosecution, they were lying with whom and whether they were in safe custody. The Officer in-Charge was required to be examined. The safe custody of samples for the entire duration was required to be established. 17. In State of Gujarat vs. Ismail U Haji Patel, 2003 (12) SCC 291 emphasized that in a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to when they had been dispatched or received in the laboratory is a matter of great importance and a noncompliance thereof could also result in the trial being vitiated. It shall be apt to reproduce the relevant observations as contained in paras 5 and 6 of the judgment, which read as under: - 18 2025:HHC:24710 ) “5. We find that there was no material brought on record to show where the seized articles were kept. The High Court, after analysing the evidence on record, came to hold that the identity of the articles sent for analysis was not established, and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala, the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper and the samples sent to the Chemical Analyst related to the seized articles form. 6. Further, there was nothing brought on record to show as to under whose direction the samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgment of the High Court does not warrant any interference in our hands and the appeal is dismissed”. 18 In State of Rajasthan vs. Gurmail Singh, 2005 (3) SCC 59, the Hon’ble Supreme Court found the link evidence adduced on behalf of the prosecution to be unsatisfactory and, on the 19 2025:HHC:24710 ) basis of such evidence, was pleased to uphold the acquittal. 19 The issue of safe custody of contraband goods assumes significant and seminal importance has been appropriately dealt with in State of Rajasthan vs. Tara Singh, 2011 (11) SCC 559, where the Hon’ble Supreme Court succinctly observed as under:- “6. We must emphasise that in a prosecution under the Act, the question as to how and where the samples had been stored or as to when they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised, which cast a doubt on the prosecution's story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged.” 20 In State of Uttar Pradesh vs. Hansraj alias Hansu (2018) 18 SCC 355, it was held by the Hon’ble Supreme Court that there is delay in producing the samples of the contraband substance in the court and when the evidence is that the same were kept in the police station, the prosecution has to adduce evidence to show that as to how and in what condition, samples were preserved at the police station. 21 In Vijay Pandey vs. State of U.P., 2019 (SC) 3569, the Hon’ble Supreme Court held that mere production of a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and the one tested have to be correlated. It shall be apt to reproduce relevant 20 2025:HHC:24710 ) observations as contained in paras 8 and 9 of the judgment, which read as under: - “8. The failure of the prosecution in the present case to relate the seized sample to that seized from the appellant makes the case no different from a failure to produce the seized sample itself. In the circumstances, the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The samples seized and those tested have to be correlated. The observations in Vijay Jain vs. State of Madhya Pradesh, (2013) 14 SCC 527, as follows, are considered relevant: “10. On the other hand, on a reading of this Court's judgment in Jitendra's case, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in the case of Ashok (supra), this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the 21 2025:HHC:24710 ) trial court as material exhibit and there was no explanation for its nonproduction and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.” 9. In Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, it was observed: “12. Last but not least, the alleged narcotic powder seized from the possession of the accused, including the appellant, was never produced before the trial court as a material exhibit, and once again, there is no explanation for its nonproduction. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.” 22. Thus, it was essential to prove the integrity of the case property to establish that the accused was found in possession of the drugs before he could be held liable for possessing the drugs without valid documents as required under Section 18(A) of the Drugs and Cosmetics Act. Since the evidence regarding the integrity of the case property is not satisfactory, therefore, he cannot be held liable for possessing the drugs without valid documents, and the judgment of the learned Appellate Court acquitting the accused cannot be faulted. 22 2025:HHC:24710 ) 23. In view of the above, the present appeal fails and the same is dismissed. 24. The observations made hereinabove are regarding the disposal of the appeal and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 29th July, 2025 (veena )