2026:HHC:33249 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 244 of 2014 Reserved on: 03.08.2026 Date of Decision: 10.08.2026 Rajesh Kumar ...Appellant Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant : Mr Arsh Chauhan, Advocate. For Respondent/State : Mr Prashant Sen, Deputy Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction dated 21.06.2014 and order of sentence dated 24.06.2014, passed by the learned Special Judge, Ghumarwin, District Bilaspur, HP, Camp at Bilaspur, H.P. (learned Trial Court). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:33249 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 the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). It was asserted that SI Jagat Singh (PW9), Constable Dev Raj (PW6) and Constable Bharat Bhushan (PW8) were on a patrolling duty on 16.01.2011 in an official vehicle bearing registration No. HP-69A-0128 being driven by Constable Sanjeev Kumar. They saw the accused standing near Thakur Sweets Shop, at about 05.00 P.M. He had a khaki packet (Ex. P2) in his hand. The accused tried to throw the packet after seeing the police. The police became suspicious and apprehended the accused. Hira Lal (PW1) and Hemant Kumar (PW2) also reached the spot, and the police joined them. The accused revealed his name as Rajesh Kumar on enquiry. The police checked the packet and found two polythene packets (Ex. P3 and Ex. P4) containing black substance (Ex. P5) wrapped in plastic. SI Jagat Singh (PW9) checked the substance and found it to be charas. He carried the charas to the shop of Mohinder Soni, Jeweller (PW3) and weighed it. The weight of the charas was found to be 133.580 grams. The police put the charas in a parcel 3 2026:HHC:33249 (Ex.P1) and sealed the parcel with four impressions of seal ‘T’. Seal impression (Ex.PW1/B) was taken on a separate piece of cloth. SI Jagat Singh (PW9) filled the NCB-1 Form (Ex.PW9/A) in triplicate and put the seal impression on the form. He seized the parcel vide memo (Ex.PW1/A), prepared a Rukka (Ex.PW8/A) and sent it to the Police Station, where FIR (Ex.PW8/B) was registered. SI Jagat Singh (PW9) investigated the matter. He prepared the spot map (Ex.PW9/A) and recorded the statements of witnesses as per their version. He arrested the accused vide memo (Ex.PW9/E). He produced the accused, case property and case file before DySP Lalman Sharma (PW11), who compared and checked the seals on the parcel and found them to be intact. He resealed the parcel with three seals of seal ‘H’. Seal impression (Ex.PW9/F) was taken on a separate piece of cloth and on the NCB-1 form. DySP Lalman Sharma (PW11) issued a resealing certificate (Ex.PW9/J). He handed over the parcel and the other documents to HC Dev Raj (PW6), who made an entry in the Malkhana register at Sl. No.7 (Ex.PW6/A) and deposited the articles in Malkhana. He handed over the parcel, seal impression, copy of FIR, recovery memo, NCB-I Form in triplicate to Constable Yash Pal (PW4), with a direction to carry them to FSL, 4 2026:HHC:33249 Junga for analysis vide RC No.7/11 (Ex.PW6/A). Constable Yash Pal (PW4) deposited all these articles at FSL, Junga and handed over the receipt to HHC Dev Raj (PW7) on his return. SI Jagat Singh (PW9) prepared a special report (Ex. PW5/A) and sent it to the Deputy Superintendent of Police (Headquarters), who made the endorsement on the Special Report and handed it over to his Reader HC Hemraj (PW5), who made an entry in the register of Special Report at Sl. No. 123 (Ex.PW5/B) and retained the Special Report on record. The result of analysis (Ex.PW6/C) was issued, in which it was mentioned that the actual weight of the exhibit was 115.364 grams. It was an extract of cannabis and a sample of charas. Statements of witnesses were recorded as per their version, and after the completion of investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with commission of an offence punishable under Section 20(b)(ii)(B) of the NDPS Act, to which he pleaded not guilty and claimed trial. 4. The prosecution examined 11 witnesses to prove its case. Hira Lal (PW1) and Hemant Kumar (PW2) are the 5 2026:HHC:33249 independent witnesses to the recovery, who have not supported the prosecution case. Mohinder Soni (PW3) was a Jeweller, in whose shop the charas was weighed. Constable Yash Pal (PW4) carried the case property to FSL, Junga. HC Hem Raj (PW5) was working as a Reader to Dy. Superintendent of Police (Headquarters), to whom the Special Report was handed over. HC Dev Raj (PW6) was working as an MHC, with whom the case property was deposited. HHC Dev Raj (PW7) and HHC Bharat Bhushan (PW8) are the official witnesses to the recovery. SI Jagat Singh (PW9) effected the recovery and carried out the investigation. Constable Rajiv Kumar (PW10) brought the case property from the FSL. Dy. S.P. Lalman Sharma (PW11) was working as SHO, who had resealed the case property. 5. The accused in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC) admitted that police were on a patrolling duty. He admitted that he had disclosed his name as Rajesh Kumar to the police. He also admitted that he was arrested by the police. He claimed that he had participated in a dharna three days before the registration of the present FIR. The police officials wanted to remove the people sitting on dharna, and he objected to it. There was a scuffle and a false case was 6 2026:HHC:33249 made against him. He did not produce any evidence in his defence. 6. Learned Trial Court held that the testimonies of the official witnesses corroborated each other. The plea taken by the accused that he had participated in a dharna where a scuffle had taken place was denied by the official witnesses. A denied suggestion does not amount to any proof. The accused did not produce any evidence to support this version. The mere fact that independent witnesses had not supported the prosecution case was not sufficient to discard the prosecution case. Minor contradictions in the testimonies of the prosecution witnesses were bound to come with time because of the failure of memory. The testimonies of police officials could not be discarded simply because they happened to be official witnesses. The integrity of the case property was established by the report of the FSL and the testimonies of the witnesses. Variation in the weight of the charas in the laboratory could occur because the weighing scale in the laboratory was more precise than the weighing scale used on the spot. The difference was minor and could not have been used to discard the prosecution case. The report of analysis proved that the substance analysed was charas. The prosecution 7 2026:HHC:33249 had succeeded in proving its case beyond reasonable doubt against the accused. Hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 20(b)(ii)(B) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 03 years, pay a fine of ₹10,000/- and, in default of payment of fine, to undergo simple imprisonment for 02 months for the commission of the aforesaid offence. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in appreciating the evidence on record. The independent witnesses and jeweller have not supported the prosecution case. There were major contradictions in the statements of the witnesses, which made the prosecution’s case doubtful. The plea taken by the accused that a false case was made against him because of the participation in dharna/agitation was highly probable, and the learned Trial Court erred in rejecting this plea. The prosecution has failed to prove its case beyond reasonable doubt. Hence, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8 2026:HHC:33249 8. I have heard Mr Arsh Chauhan, learned counsel for the appellant/accused and Mr Prashant Sen, learned Deputy Advocate General for the respondent/State. 9. Mr Arsh Chauhan, learned counsel for the appellant/accused, submitted that the independent witnesses have not supported the prosecution case, which made the prosecution case suspect. There were major contradictions in the statements of the official witnesses, which made the prosecution’s case doubtful. The weight of the charas was found to be different in the laboratory, and the conclusion drawn by the learned Trial Court that the difference could be because of the difference in the scale was not justified because the scale of a goldsmith was used on the spot, which is supposed to be highly accurate. The learned Trial Court had imposed a disproportionate sentence. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 10. Mr Prashant Sen, learned Deputy Advocate General for the respondent/State submitted that the independent witnesses admitted their signatures on the documents which corroborated the prosecution version that they were present on 9 2026:HHC:33249 the spot. Learned Trial Court had rightly held that minor contradictions were bound to come with time. The scale used on the spot was different from the scale used in the laboratory, and minor variations in the weight cannot be used to discard the prosecution case. Therefore, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. Hira Lal (PW1) stated that he had gone to Bridge at Kandraur in connection with his business. The police met him at the shop of the accused. Nothing was recovered in his presence. However, some documents were prepared regarding the recovery of the charas. He did not know from whom the charas was recovered, and he did not know the weight of the charas. 13. Hemant Kumar (PW2) stated that he was running a chemist shop near the bridge at Kandrauar. The shop of the accused is at a distance of 300 meters from his shop. Nothing had happened in his presence, and he had reached the spot subsequently. 14. Both these witnesses were declared hostile by the prosecution, and they were cross-examined by the learned Public 10 2026:HHC:33249 Prosecutor. They denied the prosecution case that the accused was apprehended in their presence with a brown packet, and when the packet was opened in their presence it was found to be containing charas which was weighed in the shop of Mohinder Soni (PW3) and its weight was found to be 133.580 grams. Thus, both the independent witnesses have not supported the prosecution case. 15. Mohinder Soni (PW3) stated that he was running a jewellery shop near SBI, Kandraur. The police brought something wrapped in a newspaper to his shop. He weighed it and disclosed the weight to the police. He did not know what was kept inside the wrapper. He was also permitted to be cross-examined. He stated in his cross-examination by the learned Public Prosecutor that he was not aware that charas was weighed along with the brown envelope. He denied that the weight of charas was found to be 133.580 grams. Thus, he has also not supported the prosecution version that the police had weighed the charas in his shop. 16. The admission made by him that the charas was weighed along with the brown envelope is contrary to the statements of the prosecution witnesses. HHC Dev Raj (PW7) 11 2026:HHC:33249 stated that charas was weighed in the shop of Mohinder Soni (PW3) and its weight was found to be 133.580 grams. The charas was put in the plastic envelope and the brown packet and thereafter it was sealed in a cloth parcel. Similarly, HHC Bharat Bhushan (PW8) stated that charas was weighed in the shop of Mohinder Soni (PW3) and its weight was found to be 133.580 grams. The charas was put in the plastic envelope and the brown packet, and thereafter it was sealed in a cloth parcel. Similarly, SI Jagat Singh (PW9) stated that the charas was weighed and its weight was found to be 133.580 grams. The charas was put in the plastic envelope and thereafter in the same brown packet. 17. Thus, the witnesses have consistently stated that the charas was weighed and thereafter it was put in the polythene and in the brown packet, which shows that only the charas and not the charas kept in the brown packet was weighed. Thus, the statement of Mohinder Soni (PW3) would not establish that the police had weighed the charas in his shop. 18. As per the statements of prosecution witnesses, the weight of charas was found to be 133.580 grams on the spot and 115.364 grams in the laboratory. Both the scales are accurate to three decimal places, and the conclusion drawn by the learned 12 2026:HHC:33249 Trial Court that the weighing scales were of different accuracy is not sustainable. 19. Further, there is a force in the submission of Mr Arsh Chauhan, learned counsel for the accused, that the weight used by a jeweller would be highly accurate because he is to weigh the jewels in grams and milligrams, which he cannot afford to do with an inaccurate weighing scale considering the high price of the jewellery. Thus, the submission that the weighing scale used by Mohinder Soni (PW3) was not accurate cannot be accepted. In any case, the burden falls upon the prosecution to explain the variation in the weights obtained on the spot and in the laboratory, and the matter cannot be left to conjecture and surmise. 20. The difference was not minor but 17.956 grams, which is 15% of the total quantity of 115.624 grams found in the laboratory. 21. It was laid down by this Court in Iacopo Lombardi vs State of Himachal Pradesh 2002(2) Shim.LC 431, that the prosecution has to establish the link evidence from taking the sample till its analysis by the chemical examiner. Where the sample of 25 grams was drawn on the spot, and the weight of the 13 2026:HHC:33249 same in the laboratory was found to be 17 grams, link evidence is missing. It was observed: - “24. It may also be noticed here that the samples which were initially drawn as per the prosecution version weighed 25 gms. Each. However, the sample which was delivered in the Laboratory and was analysed weighed only 17.892 gms. Had the investigating agency sent to the Laboratory the sample of 25 gms., allegedly separated and sealed on the spot, the weight of such sample could not be reduced to 17 and odd grams. This reduction of about 7 grams in the weight of the sample is also indicative of the fact that the sample had been tampered with.” 22. In Ramesh Kumar vs State of HP 2005 (3) Shim. LC 101, the weight of the sample was reduced from 20 grams to 13.1276 grams, and it was held that the sample taken on the spot was not proved to have been analysed. It was observed: 15. In view of the contents of Ext. PW-9/B and the statements of the aforesaid witnesses, it is absolutely clear that the sample sent to CTL was not of the case property in this case. This conclusion is further strengthened by the fact that as per the prosecution case, the weight of each of the samples drawn from the recovered Charas was 20 grams. However, as per the contents of the report of the Chemical Examiner Ext. PW-9/C, the sample received in the laboratory weighed 13.1276 grams only. A marginal difference in the weight may not be construed to hold that the sample was not of the case property, but a difference of 1 /3rd of the total weight is not a difference which can be ignored. Thus, the only permissible conclusion in such a situation will be that either the sample had been tampered with or the sample which was delivered in the laboratory was not the sample of the case property which, according to the prosecution itself, was of 20 grams. 14 2026:HHC:33249 23. In Satnarayan vs State of H.P. 2009 (3) Shim. LC 57 HP, two samples of twenty grams were taken on the spot, but the Chemical Examiner found its weight to be 30.8116 grams. It was held that the increase was sufficient to cast doubt regarding the prosecution case. It was observed: “10. Above-stated position apart, it is also doubtful if the report of the Chemical Examiner Ex. PW-10/D pertains to the sample of the stuff allegedly recovered from the appellant. According to the prosecution, two samples, each weighing 20 grams, had been separated. The sample, which was sent to the Chemical Examiner, contained 30.8116 grams of Charas. That means there was a substantial increase in the weight of the Charas sample. The increase was to the order of 54 per cent, approximately. Such a huge variation is not possible due to climatic reasons or the condition of the place, like dampness etc., where the samples might have been stored or on account of there being slight variation while weighing the stuff or on account of some error in the weighing scale.” 24. In the present case, there is a difference of 15% in the weight of the contraband, and it is difficult to connect the substance analysed to the substance recovered on the spot. 25. In the present case, the independent witnesses had not supported the prosecution’s case, and the testimonies of the official witnesses were required to be seen with due care and 15 2026:HHC:33249 caution. When the testimonies of the official witnesses are analysed, the following contradictions emerge: - (i) HHC Bharat Bhushan (PW8) stated that they had stopped at Kothi Chowk and Chandpur.SI Jagat Singh (PW9) stated that they had stopped near the bridge at Chandpur and near the shop of the accused. (ii) HHC Dev Raj (PW7) stated in his cross-examination that the accused had not run after seeing the police. HHC Bharat Bhushan (PW8) stated that the accused ran 10 to 15 ft. upward. SI Jagat Singh (PW9) stated that the accused was immediately nabbed when he tried to throw the packet which he was holding in his right hand. (iii) HHC Dev Raj (PW7) stated that it took about 1-2 minutes to nab the accused. SI Jagat Singh (PW9) stated that it took about 1-2 seconds to nab the accused. (iv) Bharat Bhushan (PW8) stated that he had gone to the Police Station along with the rukka in some private vehicle from the spot which was taken from the Bus Stand at Kandraur which is located at a distance of 10-12 ft. from the spot towards Ghumarwin. HHC Dev Raj (PW7) stated that Constable Bharat Bhushan had gone on foot along with the rukka towards National Highway leading to Bilaspur. (v) HHC Dev Raj (PW7) stated that Hira Lal was coming from the dispensary while Hemant Kumar was going towards his shop. HHC Bharat Bhushan (PW8) stated 16 2026:HHC:33249 that Hira Singh had come from the hospital and Hemant Kumar was present in the market itself. 26. Learned Trial Court held that these discrepancies were minor and bound to come with time. It is difficult to agree with the conclusion of the learned Trial Court. The manner of apprehension of the accused was intricately connected to the recovery itself, and if the witnesses were not sure whether the accused had run away after seeing the police or not, their testimony regarding the recovery after apprehending the accused also becomes doubtful. Further, the site plan (Ex.PW9/B) shows that Ghumarwin and Bilaspur are located towards the different sides of the spot. Therefore, Constable Bharat Bhushan (PW8) could not have gone towards Ghumarwin and Bilaspur at the same time. The place from where the witnesses were coming was connected to the process of the recovery, and cannot be said to be minor. 27. It was laid down by the Hon’ble Supreme Court in Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC OnLine SC 756 that the evidence of the prosecution must be tested for its inherent consistency: consistency with the account of other witnesses and consistency with undisputed facts. It was observed: 17 2026:HHC:33249 “21. …. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged by making any other evidence, including the medical evidence, the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 28. It was held in David Piper Vs. Mark Hales 2013 EWHC B1 (QB) that the Court has to see whether the statement of the witness is consistent or not. It was observed: - 34. The guidance about how courts approach this is given in the extra-judicial writing of the late Lord Bingham of Cornhill, approved by the courts, is apposite. In "The Judge as Juror: The Judicial Determination of Factual Issues" published in "The Business of Judging", Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985 p 1-27, he wrote: ". . . Faced with a conflict of evidence on an issue substantially affecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties' lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have 18 2026:HHC:33249 identified, but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree. The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431. In this, he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full: ''Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional and who think that they are morally in 19 2026:HHC:33249 the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue . . .. more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; 20 2026:HHC:33249 (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. The first three of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness's evidence conflicts with what is clearly shown to have occurred or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable, and not dishonest, but the nature of the case may effectively rule out that possibility. The fourth test is perhaps more arguable. . . ." 35. The following guidance of Lord Goff in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at 215-6 is also helpful. "And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1, when he said at p. 57: - "Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and 21 2026:HHC:33249 the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth." [emphases added]. That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence." In that context, he was impressed by a witness described in the following terms. "Although like the other main witnesses, his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable." That is so important, and so infrequently done." 36. This approach to fact-finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 610, in paragraphs 11, 12 & 14: 11. By the end of the judgment, it is clear that what impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings. 12. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge, and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made by giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be 22 2026:HHC:33249 available to support the witness. Such evidence would generally be documentary, but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge. 14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence, and the judge may be able to draw inferences from its absence. 37. Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties' lawyers long after the events also distort the accurate picture even though they are meant to assist the court.” 29. In the present case, the testimonies of official witnesses are not consistent; there is a difference in the weight of the substance recovered on the spot and the one analysed in the 23 2026:HHC:33249 laboratory; independent witnesses and a jeweller have not supported the recovery. All these circumstances cumulatively make it difficult to place reliance upon the prosecution case. 30. Learned Trial Court had taken the circumstances individually instead of weighing them cumulatively, and when the cumulative effect of all these circumstances is seen, it is difficult to justify the conclusion of learned Trial Court that the prosecution had proved its case beyond reasonable doubt. There were many gaping holes in the prosecution case which have not been explained, and the accused is entitled to the benefit of doubt, which is extended to him. 31. In view of the above, the present appeal is allowed, and the judgment and order passed by the learned Trial Court are set aside, and the accused is acquitted of the commission of an offence punishable under Section 20(b)(ii)(B) after extending him the benefit of doubt. The fine, if deposited, be refunded to the appellant/accused after the expiry of the period of limitation, in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court of India. 24 2026:HHC:33249 32. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the accused is directed to furnish personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 33. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of. (Rakesh Kainthla) Judge 10th August, 2026 (Nikita)