2026:HHC:30463-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.553 of 2012 Reserved on: 30.05.2026 Date of decision: 23.07.2026 Uploaded on: 23.07.2026 State of Himachal Pradesh. ...Appellant. Versus Krishan Dutt & Ors. …Respondents. Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. I.N. Mehta, Senior Additional Advocate General. For the respondent(s) : Mr. Manoj Pathak, Senior Advocate with Mr. Parth Sagar and Mr. Vishal, Advocates, for respondent No.1. : Mr. Amit Himalvi, Advocate, vice Mr. Ravinder Singh Chandel, Advocate, for respondent No.2. Vivek Singh Thakur, Judge Appellant has preferred present appeal against judgment dated 31.08.2012 passed by learned Special Judge, Fast Track Court, Shimla, in Sessions Trial No.12-S/7 of 2011, titled State of Himachal Pradesh vs. Krishan Dutt & Ors., arising out of FIR No.29 dated 08.02.2011, registered at Police Station Theog, 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes -2- 2026:HHC:30463-DB District Shimla, under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the 'NDPS Act'), whereby respondents have been acquitted of the charges framed against them. 2. Prosecution case is that on 18.02.2011, ASI Yoginder Singh (PW-9) left Police Station Theog at 05:30 PM along with ASI Sanjeev Kumar (not examined), HC Dev Raj (not examined) and Constable Mohmad Mehmood (PW-7) in connection with patrolling and picketing duty towards Chhaila Road. On reaching Gajedi Bye- pass Road, they laid a nakka at 07:15 PM. It is the prosecution case that a motorcycle bearing Registration No. HP-09A-3382, carrying three persons and coming from the Chhaila side, was noticed. On being signalled by the Police to stop, the moment the motorcycle stopped, the two pillion riders attempted to flee, but were apprehended by the Police party on the spot. The pillion rider seated between the other two riders was carrying a backpack. 3. ASI Yoginder Singh (PW-9) inquired about the antecedents of all the riders of the motorcycle. The motorcyclist disclosed his name as Dalip Singh, the person carrying the backpack disclosed his name as Krishan Dutt and the third rider disclosed his name as Sunil Kumar. -3- 2026:HHC:30463-DB 4. On checking the light-yellow coloured cotton bag pack containing sticks of black substance was found under blue-black-red old zipper sweater, kept in the bag. On smelling, the substance was identified as Charas. 5. As per prosecution case, it being a secluded place and on becoming dark, no independent witness was available. Therefore, HC Dev Raj and Constable Mohmad Mehmood (PW-7) were associated as witnesses, and Charas was weighed with weighing scale available in the Police kit as well as with ½ kg and 200-gram weights. On weighing, Charas was found to weigh 1 kg and 700 grams. 6. Recovered contraband was against put in the same bag along with the sweater and it was seized in a parcel of cloth by putting nine stamps of seal impression ‘X’. The Investigating Officer filled up the NCB-I Form in triplicate. Seal impression 'X' was also affixed on NCB-I Form. A separate sample seal was taken on a piece of cloth. The seal, after use, was handed over to HC Dev Raj (not examined). 7. Rider of the motorcycle, Dalip Singh, produced Registration Certificate of the motorcycle, which was found to be in the name of father of Krishan Dutt. -4- 2026:HHC:30463-DB 8. In the aforesaid facts, Investigating Officer arrived at the conclusion that the respondents, hatching a conspiracy together, were transporting narcotic substance, i.e. Charas, on their motorcycle, which was intercepted by the Police, and contraband recovered from their bag was sealed and taken into possession, as described supra. 9. Thereafter, at about 08:30 PM, ASI Yoginder Singh (PW-9) prepared the rukka and handed over the same to Constable Mohmad Mehmood (PW-7) for registration of the FIR. 10. Constable Mohmad Mehmood (PW-7) left the spot for Police Station Theog. By taking a lift in a private truck, he reached the Police Station at 09:00 PM. 11. Inspector Baldev Thakur (PW-8) registered the FIR (Exhibit PW8/B) at 09:05 PM and, after making endorsement in red circle on Exhibit PW8/B, handed over the case file to Constable Mohmad Mehmood (PW-7) at 09:25 PM with direction to take it back to the spot. Constable Mohmad Mehmood (PW-7) reached on the spot at 09:40 PM and handed over the case file to ASI Yoginder Singh (PW-9). Thereafter, they reached the Police Station at 10:10 PM. -5- 2026:HHC:30463-DB 12. ASI Yoginder Singh (PW-9), after completing the process of sealing and seizure and preparing the site plan (Exhibit PW9/A), left the spot at 10:00 PM and reached the Police Station along with the accused persons and case property, at 10:10 PM. The NCB-I Form (Exhibit PW8/E) was filled up by ASI Yoginder Singh (PW-9) on the spot from Columns No.1 to 8, whereas Columns No.9 to 11 were filled up by Inspector Baldev Thakur (PW-8), and the case property was handed over to MHC Het Ram (PW-2). 13. On 19.02.2011, Constable Dola Ram (PW-4) was handed over a Special Report for delivering the same to the office of the SDPO, Chopal, because the SDPO, Theog, was on leave on that day. PW-4 Constable Dola Ram handed over the Special Report to Reader of SDPO, ASI Prakash Chand (PW-5), on the same day, who, in turn, placed the same before the SDPO. 14. On 21.02.2011, Constable Naresh Kumar (PW-1) was handed over the parcel containing contraband for depositing the same in State FSL vide Road Certificate No.11/11 dated 21.02.2011 (Exhibit PW-2/B). He deposited the same in State FSL between 12:30 PM and 03:00 PM. He reached the Police Station at 07:00 PM and, thereafter, reached Check Post Chhaila at 08:30 PM. -6- 2026:HHC:30463-DB 15. Constable Muni Lal (PW-6) had gone to State FSL on 10.03.2011 for depositing the case property related to another case. State FSL officials handed over the report pertaining to FIR No.29/2011 along with case property pertaining to Police Station Theog to this witness with directions to deposit the same in Malkhana at Police Station Theog. He handed over the report and the parcel to MHC Het Ram (PW-2) on the same day. 16. SI Yusuf Ali (PW-10) recorded statement of certain persons. Inspector Baldev Thakur (PW-8), after completion of investigation and obtaining relevant record, produced challan before the Court. 17. After finding, prima facie, material against the respondents, the Trial Court framed charges against them under Sections 20 and 29 of the NDPS Act. 18. For pleading not guilty, the respondents were subjected to trial. 19. The prosecution examined ten witnesses to prove its case, whereas the respondents, after recording of their statements under Section 313 Cr.P.C., did not lead any evidence in defence. Upon completion of trial, the respondents were acquitted by Trial Court. Hence, present appeal. -7- 2026:HHC:30463-DB 20. As per prosecution story, as also evident from copy of the rapat, recorded in the Daily Diary at Police Station Theog, five persons, including the driver of the official vehicle, left the Police Station at 05:30 PM. In this regard, LHC Swaran Singh (PW-3) recorded Daily Diary entry (Exhibit PW3/A) at 05:30 PM. However, Driver Kesar Singh was not cited as a witness in the list of witnesses, whereas ASI Sanjeev Kumar and HC Dev Raj were reflected as witnesses in the challan, but they were not examined. It appears from the record that ASI Sanjeev Kumar never appeared before the Court to depose as a witness, whereas HC Dev Raj was given up by the Investigating Officer on the ground that his testimony would have been repetitive in nature. 21. Admittedly, during search and seizure, no independent witness was associated. Undoubtedly, conviction can also be based solely on the statements of official witnesses, provided that their testimony is found to be reliable, cogent and convincing. However, in the absence of association of independent witnesses, the statements of official witnesses are required to be evaluated with due care and caution, particularly in cases under the NDPS Act, where the punishment is stringent and the question of personal liberty of the accused is involved. -8- 2026:HHC:30463-DB 22. In present case, only two spot witnesses, i.e. Constable Mohmad Mehmood (PW-7) and ASI Yoginder Singh (PW-9), have been examined. In their examination-in-chief, Constable Mohmad Mehmood (PW-7) and ASI Yoginder Singh (PW-9) have categorically stated that Police party could not find any independent witness, as the accused were apprehended at an isolated place. 23. In cross-examination, Constable Mohmad Mehmood (PW-7) has stated that Rai Ghat is about ½ km from Theog towards Shimla, and Gajeri is about 2½ km from Theog, and it takes about 10 minutes to reach Gajeri from Theog. Though he has denied that there were 2-3 houses just above the old stone crusher, however, he, by way of self-statement, has stated that there was only one house above the stone crusher, but the same had been vacated by its occupant as per the order of the Court. 24. He (PW-7) has also admitted that, as per Exhibit DA, the photograph pertains to the place where the Police laid the nakka, but it is slightly ahead of point Mark-A towards Theog side near pine trees, and there is no house near the pine trees. He has stated that he cannot say whether photograph Mark C pertains to the place where the Police laid the nakka. Though he has denied that there was a primary school and one residential house adjacent to the main road about 150 metres away from the place of nakka. By way of self- -9- 2026:HHC:30463-DB statement, he has stated that it was more than 250 metres from the place of nakka. 25. He (PW-7) has also admitted that it was correct that in Gajeri village there is one restaurant, namely, Roam Palace, 5-6 shops and residential houses at some distance from the bazaar. He has admitted that in Exhibit DB, the school and houses towards the Chhaila roadside are visible. According to him, the Police party spotted the respondents 5-10 minutes after laying the nakka. He has admitted that vehicular traffic on the Chhaila Road is quite heavy, but has self-stated that during winter days there was scanty traffic. 26. ASI Yoginder Singh (PW-9) has admitted that it was correct that there were 5-6 shops, one restaurant and some residential houses at Gajeri. He has further admitted that it was correct that the Shimla-Chhaila Road remains busy. 27. From the aforesaid statements of Constable Mohmad Mehmood (PW-7) and ASI Yoginder Singh (PW-9), it is apparent that there were houses, shops, restaurants, etc. near the place of nakka. Therefore, the plea of the prosecution that it was a secluded place and independent witnesses were not available to be associated is incorrect and contrary to the factual situation. -10- 2026:HHC:30463-DB 28. In examination-in-chief, Constable Mohmad Mehmood (PW-7) and ASI Yoginder Singh (PW-9) have stated that immediately after apprehending the respondents, the bag was checked. Therefore, it is apparent that no effort was made to associate independent witnesses. Though, in cross-examination, Constable Mohmad Mehmood (PW-7) has stated that the Investigating Officer asked him to look for independent witnesses and he went upto a curve towards the Chhaila side, but could not find anybody on the road. However, at the same time, apart from the admission of these witnesses regarding the existence of houses, shops, restaurants, etc., vehicular traffic was also there. 29. Though Constable Mohmad Mehmood (PW-7) and ASI Yoginder Singh (PW-9) have stated that the vehicular traffic was scanty, it is also a matter of fact that Constable Mohmad Mehmood (PW-7) got a vehicle immediately after receiving the rukka and reached Theog within 15 minutes and, immediately after registration of the FIR, again got a private vehicle to return to the spot. It is strange that for associating an independent witness, no vehicle was found on the road, whereas for going from the spot to the Police Station and returning to the spot, vehicles were immediately available without any wait. This circumstance creates doubt about the veracity of the prosecution story. -11- 2026:HHC:30463-DB 30. Joining and associating independent witnesses may not be possible in all cases, but this is a case where it was neither midnight nor was it a secluded place having no habitation nearby. Rather, it is a case where the respondents were apprehended at 7:15 PM, and houses, shops, restaurants, etc. were situated near the place of nakka, at a distance of merely 10-15 minutes by vehicle. Despite that, no effort was made to associate any independent witness. This fact, coupled with the contradictions and discrepancies in the prosecution case, as discussed hereinafter, assumes significance and becomes fatal to the prosecution story. 31. The rukka was sent through Constable Mohmad Mehmood (PW-7), but presence of Constable Mohmad Mehmood (PW-7) at the spot is doubtful because ASI Yoginder Singh (PW-9) has nowhere stated that seizure memo (Exhibit PW7/A) and parcel (Exhibit P-2) were signed by Constable Mohmad Mehmood (PW-7). In his examination-in-chief, ASI Yoginder Singh (PW-9) has stated that the recovery memo was signed by HC Dev Raj (not examined) and the accused persons, with further statement that the parcel (Exhibit P-2) bears his signatures as well as signatures of HC Dev Raj and the accused persons. It is nowhere stated that Constable Mohmad Mehmood (PW-7) had also signed these important documents. In the site plan (Exhibit PW9/A) also, there is no -12- 2026:HHC:30463-DB reference to Constable Mohmad Mehmood (PW-7). The site plan was prepared on the identification of HC Dev Raj. 32. Investigating Officer ASI Yoginder Singh (PW-9) has stated that after use, the seal was handed over to HC Dev Raj, but HC Dev Raj has not been examined and sample seal was not produced before the Court. Non-production of sample seal before the Court may not, by itself, be fatal to the prosecution case. However, coupled with the other facts on record in the present case, it gains significance. 33. Out of five members of the Police party, only four were cited as witnesses, and driver of the official vehicle, Kesar Singh, was not cited as a witness. 34. HC Dev Raj was given up on 24.07.2012 on the ground that his deposition would be repetitive in nature. Till 24.07.2012, only one spot witness, i.e. Constable Mohmad Mehmood (PW-7), had been examined and his examination-in-chief was deferred on that day. The second spot witness, ASI Yoginder Singh (PW-9), was examined on 24.08.2012. Even if the prosecution case is accepted to be true, Constable Mohmad Mehmood (PW-7) was on the spot only till preparation of the rukka and thereafter, he was not present on the spot. Prosecution case itself states that the site plan was -13- 2026:HHC:30463-DB prepared on identification of HC Dev Raj, but HC Dev Raj was not examined. 35. It is true that it is not the quantity, but the quality of the witnesses that matters. However, in the present case, there is neither quality nor quantity. It is only the Investigating Officer, ASI Yoginder Singh (PW-9), who has been examined as a witness and who remained on the spot throughout the proceedings. No other witness, who remained on the spot throughout the proceedings, has been examined to corroborate his statement. ASI Sanjeev Kumar, though shown to be present on the spot, neither appeared before the Court nor was examined as a witness. It has also come in the statement of ASI Yoginder Singh (PW-9) that ASI Sanjeev Kumar did not perform any role and no document was scribed by him. 36. Except Constable Mohmad Mehmood (PW-7), no other spot witness had been examined till 24.07.2012. Therefore, it remains unexplained as to how and for what reason HC Dev Raj was given up before examining the other spot witnesses, on the ground that his evidence would be repetitive in nature. There was no repetition, as at least one witness, who remains in the spot throughout, ought to have been examined to corroborate the version of the Investigating Officer, ASI Yoginder Singh (PW-9), as well as Constable Mohmad Mehmood (PW-7). This circumstance also -14- 2026:HHC:30463-DB creates doubt about the veracity of the prosecution story. Before examining the other official witnesses of facts of similar nature, how a witness could be stated to be repetitive in nature, remains unexplained. 37. The Investigating Officer (PW-9) in his examination-in- chief has stated that I.O. thereafter filled-up the NCB form in triplicate, which indicates that he was not Investigation Officer and Investigating Officer was someone else, who filled up NCB-I form in triplicate in presence of PW-9. Either he was not Investigating Officer or he was not present on the spot at all and story has been cooked up in the Police Station and thereafter role has been assigned to different official witnesses on papers, and for that reason only HC Dev Raj has been given up and ASI Sanjeev Kumar has not been produced as a witness and Driver of official vehicle has not been cited as a witness on the spot. 38. It is also apt to record that nakka was laid at 07:15 PM, motorcycle was noticed at 07:15 PM and, as per the NCB-I Form and other documents, contraband was recovered at 07:15 PM. If that be so, then at what point of time did the Investigating Officer ask the police officials to search for independent witnesses? The statement of Constable Mohmad Mehmood (PW-7) that the Investigating Officer had asked him to search for independent witnesses, as well -15- 2026:HHC:30463-DB as the claim of ASI Yoginder Singh (PW-9) that despite efforts, independent witnesses could not be arranged as it was a secluded place and become dark, appears to be an afterthought and creates serious doubt about the prosecution version. 39. Similarly, it is also apt to notice that Police party returned to Police Station at 10:10 PM, resealing was done at 10:10 PM and case property was handed over to MHC at 10:10 PM. Thus, all these proceedings are shown to have taken place at the same time, which appears improbable and creates doubt about authenticity of the prosecution version. 40. The plea of learned counsel for the respondents also appears to be correct that the case property was either not produced at the time of the examination of Constable Mohmad Mehmood (PW- 7) and the case property pertaining to some other case, was produced at the time of his examination-in-chief on 24.07.2012. It is apparent from record that at the time of the examination of ASI Yoginder Singh (PW-9) on 24.08.2012, when the case property was produced, it was found that the FSL seal, the resealing seal as well as the seals used at the time of seizure were intact and the parcel had been opened only once. Had the case property been produced and opened on 24.07.2012 at the time of examination of PW-7 Mohmad Mehmood, it must have the seal of the Court for sealing the -16- 2026:HHC:30463-DB parcel after its production before the Court. However, no such Court seal was found, when case property was produced on 24.08.2012 at the time of the examination of ASI Yoginder Singh (PW-9). 41. The aforesaid issue was also raised by learned counsel for the respondents before the Coordinate Division Bench of this Court. In sequel thereto, the case property was summoned by the Coordinate Division Bench on 08.08.2024. On that date, it was noticed that the case property had been produced before the Trial Court only once. Order dated 08.08.2024 passed by Coordinate Division Bench reads as under:- “Case property comprising of one parcel Ext. P-1 has been produced before this Court by HASI Gulab Singh No.1516, Police Station, Theog, I/C Malkhana. It is found to be sealed with nine seals of seal impression ‘X’ and four court seals and eight seals of FSL. The same is ordered to be opened. On opening, it is found to be containing another parcel Ext. P-2 having three court seals and nine seals of seal impression ‘X’ and seven seals of FSL. The parcel Ext. P-2 appears to have been cut-open only once before the trial Court. The parcel Ext. P-2 is directed to be put back in parcel Ext. P-1 and ordered to be sealed with ten seals of this Court and the case property is returned to HASI Gulab Singh No.1516, Police Station, Theog, I/C Malkhana. List for hearing on 22.08.2024.” 42. Constable Dola Ram (PW-4) deposed that a Special Report was handed over to him by Constable Mohmad Mehmood (PW-7) on 19.02.2011 for delivering the same to the office of SDPO, Chopal, as SDPO, Theog, was on leave. According to him, he went from Theog to Chopal by Saranh Bus, which starts from Shimla at -17- 2026:HHC:30463-DB 11:30 AM and reaches Theog at 12:30 PM. He returned to Theog on next day at 12:30 PM. He has also stated that an entry regarding his return from Chopal had been made in the official computer. Therefore, according to the prosecution, Constable Dola Ram (PW- 4) had left the Police Station at 12:30 PM on 19.02.2011. However, as per the Roznamcha entries pertaining to 19.02.2011 in Exhibit DA, particularly entry at Serial No.27, Constable Dola Ram (PW-4) was present in the Police Station at 02:35 PM on that day. This fact has been admitted by LHC Swaran Singh (Jinta) [PW-3], when Daily Diary entry (Exhibit DA) was put to her. Therefore, though this circumstance is not fatal by itself, but it is relevant for assessing the veracity of the prosecution story. For above facts on record, prosecution story regarding handing over of the Special Report to Constable Dola Ram (PW-4) on 19.02.2011 and its delivery in the office of the SDPO, Chopal, becomes doubtful. 43. It is claim of Constable Mohmad Mehmood (PW-7) and ASI Yoginder Singh (PW-9) that it was too cold in the month of February to search for independent witnesses during the search and seizure proceedings. However, Investigating Officer has claimed that entire proceedings were completed by him on bonnet of the official vehicle. It is also difficult to believe that, during dark night, the entire -18- 2026:HHC:30463-DB proceedings were completed on the bonnet of the official vehicle without any arrangement for light. 44. The aforesaid contradictions and discrepancies, if are considered singly in isolation, may not be fatal to the prosecution case. However, the cumulative effect thereof definitely raises suspicion regarding veracity of prosecution story. In view of above- referred discrepancies and contradictions, the evidence led by the prosecution cannot be said to be cogent, reliable and convincing so as to warrant interference with the judgment passed by the Trial Court. 45. Respondents have advantage of being acquitted by the Trial Court, fortifying the presumption of innocence in their favour. Considering above-referred contradictions and discrepancies in evidence on record, learned Senior Additional Advocate General has also not been able to point out any ground warranting interference in the judgement of acquittal. 46. In view of above, we are of the considered opinion that prosecution has miserably failed to prove its case beyond reasonable doubt. 47. It is settled law that in case of slightest doubt, the benefit thereof is to be extended to the accused. Accordingly, by extending -19- 2026:HHC:30463-DB the benefit of doubt, the judgment of acquittal passed by the Trial Court deserves to be affirmed. 48. Accordingly, this appeal is dismissed. Bail and surety bonds furnished by and on behalf of respondents are discharged. 49. Record be sent back. 50. Pending miscellaneous application(s), if any, also stands disposed of. (Vivek Singh Thakur) Judge (Ranjan Sharma) Judge 23rd July, 2026 (Pardeep)