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2024 DIGILAW 335 (HP)

Latadeen v. State of Himachal Pradesh

2024-05-10

RAKESH KAINTHLA, VIVEK SINGH THAKUR

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JUDGMENT : RAKESH KAINTHLA, J. 1. The present appeal is directed against the judgment dated 22.09.2020, passed by learned Special Judge-IV, Kangra at Dharamshala, District Kangra, H.P. vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotics Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and order dated 23.09.2020 vide which, he was sentenced to undergo rigorous imprisonment for 11 years and pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years for the commission of aforesaid offence. (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 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 NDPS Act. It was asserted that ASI-Desh Raj (PW-15), HC-Ajay Kumar (PW-1), HHC-Vimal Kumar (PW-13), and HHC-Yashwant (PW-10) were present at 32 miles in a private vehicle bearing registration no. HP-38B-4612 on 07.07.2016 at about 1:30 pm. ASI Des Raj received a secret information that the accused Latadeen used to sell charas in his home and a huge quantity of charas could be recovered by searching the house. The information was credible, and any delay in procuring the warrant would have destroyed the case property; hence, the information was reduced into writing (Ext.PW-7/A) and was sent to Sub Divisional Police Officer (SDPO), Jawali through HHC-Yashwant Singh (PW-10). The information was also sent to the Police Station for the registration of the FIR. Sudarshana Kumari (PW-4) and Babu Ram (PW-2) were associated as witnesses. Surjeet Singh (PW-3) was associated as a Photographer. The search of the house of the accused was conducted in their presence. The process of the search was also videographed. One carton wrapped with blankets and one shaving kit containing currency notes worth Rs. 20,000/- in the denomination of Rs. 100 were recovered from room No. 4 during the search. The carton contained black sticks wrapped in polythene. The sticks were smelled and were found to be charas. One weighing scale (Ext.P7) and weights (Ext.P8 to P12) were also found. One carton wrapped with blankets and one shaving kit containing currency notes worth Rs. 20,000/- in the denomination of Rs. 100 were recovered from room No. 4 during the search. The carton contained black sticks wrapped in polythene. The sticks were smelled and were found to be charas. One weighing scale (Ext.P7) and weights (Ext.P8 to P12) were also found. The charas was weighed with the help of the scale and the weights and its weight was found to be 1 Kg 200 grams of charas. Currency notes of Rs. 20,000/- purse, scale, weights and carton were seized by the police. Charas was put in a cloth parcel and the parcel was sealed with six impressions of seal ‘EW’. Currency notes were put in the purse/shaving kit and the purse was sealed in a cloth parcel with four impressions of seal ‘EW’. Scale and weights were put in a Borru and the Borru was sealed with one seal impression of seal ‘EW’. The carton was put in another Borru and the Borru was sealed with one seal of seal impression ‘EW’. The seal impression (Ext.PW-1/B) was taken on a separate piece of cloth. NCB-I form (Ext.PW-9/D) was filled in triplicate and the seal was handed over to Babu Ram after the use. The parcels were seized vide memo (Ext.PW-1/C). The police registered the FIR (Ext.PW-14/A) based on the rukka. ASI-Desh Raj conducted the investigation. He prepared the spot map (Ext.PW-15/B) and recorded the statements of the witnesses as per their version. He arrested the accused and gave the arrest information to the son of the accused vide memo (Ext.PW-15/E). He conducted the personal search of the accused and prepared the memo (Ext.PW-15/F). The photographs of the proceedings (Ext.PW-3/A1 to PW-3/A8) were taken. The video recording of the proceedings was transferred to the CD (Ext.PW-3/B) and Surjeet Singh issued the certificate (Ext.PW-3/C). The case property was handed over to Inspector Surjeet Kumar (PW-14), who re-sealed the parcel containing charas with four seal impressions of seal ‘H’. He also put the seal impression on the NCB-I form (Ext.PW-9/D) and filled in the relevant columns. He obtained the sample seal ‘H’ on a separate piece of cloth (Ext.PW-14/C) and issued the certificate regarding the re-sealing (Ext.PW-14/D). The case property was deposited with HC-Ashwin Kumar (PW-9), who made an entry in the Malkhana Register (Ext.PW-9/A) and kept it in safe condition in Malkhana. He obtained the sample seal ‘H’ on a separate piece of cloth (Ext.PW-14/C) and issued the certificate regarding the re-sealing (Ext.PW-14/D). The case property was deposited with HC-Ashwin Kumar (PW-9), who made an entry in the Malkhana Register (Ext.PW-9/A) and kept it in safe condition in Malkhana. He handed over the parcel containing the charas, sample seal and NCB-I form to ASI-Desh Raj to get the inventory certified. The parcel was produced before Ms Kanika Chawla, learned Additional Chief Judicial Magistrate, Nurpur (PW-16) along with an application (Ext.PW-15/H) for certifying the inventory. She certified the inventory (Ext.PW-15/J). The case property was again deposited with HC Ashwin Kumar. The information (Ext.PW-7/A) was handed over to SDPO, Jawali on 07.07.2016 at 2:50 pm. SDPO Jawali made an endorsement on the information and handed it over to his reader, HC-Devanand (PW-7), who made an entry in the NDPS Register (Ext.PW-7/B) and got it signed by SDPO, Jawali. A special report (Ext.PW-7/C) was handed over to SDPO, Jawali by LC-Mamta on 09.07.2016. SDPO, Jawali made the endorsement on the special report and handed it over to HC-Devanand (PW-7), who made the entry at serial No. 9 in the NDPS Register (Ext.PW-7/D). The parcels were handed over to HHC-Vimal Kumar with sample seals and NCB-I form with a direction to deposit them in FSL, Junga vide RC No. 111/21 (Ext.PW-9/C), who deposited them in FSL, Junga and handed over the receipt to HC-Ashwin Kumar. The result of chemical analysis (Ext.PA) was issued, in which it was shown that the exhibit was an extract of cannabis and a sample of charas, which contained 24.55% w/w resin in it. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court. 3. Learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act. The accused pleaded not guilty and claimed to be tried. 4. The prosecution examined 16 witnesses to prove its case. HC-Ajay Kumar (PW-1), Babu Ram (PW-2), Surjit Singh (PW-3), Sudarshana Kumari (PW-4) and HHC Vimal Kumar (PW-13) are the witnesses to the recovery. Saran Dass (PW-5) provided the mobile number of Roshan Lal. LC-Mamta (PW-6) carried the special report to SDPO, Jawali. 4. The prosecution examined 16 witnesses to prove its case. HC-Ajay Kumar (PW-1), Babu Ram (PW-2), Surjit Singh (PW-3), Sudarshana Kumari (PW-4) and HHC Vimal Kumar (PW-13) are the witnesses to the recovery. Saran Dass (PW-5) provided the mobile number of Roshan Lal. LC-Mamta (PW-6) carried the special report to SDPO, Jawali. HC-Devanand (PW-7) was posted as a reader, to whom the information and the special report were handed over by SDPO, Jawali after making his endorsement. Narender Kumar (PW-8) was posted as MC, Police Post, Kotla, who proved the various entries in the daily diary and with whom the case property was initially deposited. HC-Ashwin Kumar (PW-9) was working as MHC in Police Station, Jawali with whom the case property was deposited. HHC-Yashwant (PW-10) accompanied the police party to whom the information was handed over with a direction to carry it to SDPO Jawali. Devender Singh (PW-11) issued a report and the revenue papers of the land. HC-Surjeet Singh (PW-12) searched for Roshan Lal but could not find him. Inspector Surjit Kumar (PW-14) was working as SHO, who signed the FIR and re-sealed the case property. ASI-Desh Raj (PW-15) conducted the investigation. Ms Kanika Chawla (PW-16) was posted as ACJM, Nurpur, who certified the inventory. 5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was innocent and was falsely implicated. Statements of HC-Raj Kumar and Ankur were recorded in the defence. 6. The learned Trial Court held that the independent witnesses Babu Ram and Sudarshana Kumari did not support the prosecution case regarding the search by the police but that is not sufficient to discard their testimonies. They supported the prosecution case regarding the recovery, which was also established by the seizure memos. There was nothing in the statements of the prosecution witnesses to show that they had any motive to depose against the accused. The statements of official witnesses corroborated each other on the material aspects. Minor discrepancies in the testimonies are not sufficient to discard the testimonies of the prosecution witnesses. These testimonies are corroborated by the photographs and the video recording. The case property remained intact till its analysis by the laboratory. The substance was confirmed to be charas after the analysis. The statements of official witnesses corroborated each other on the material aspects. Minor discrepancies in the testimonies are not sufficient to discard the testimonies of the prosecution witnesses. These testimonies are corroborated by the photographs and the video recording. The case property remained intact till its analysis by the laboratory. The substance was confirmed to be charas after the analysis. The mere fact that the police official, who effected the recovery conducted the investigation was not sufficient to discard the prosecution case in the absence of any prejudice. The defence evidence did not disprove the prosecution version. The accused had not rebutted the presumption contained in Section 54 of the NDPS Act. Hence, the accused was convicted and sentenced as aforesaid. 7. Being aggrieved from 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 convicting and sentencing the accused. The prosecution case was full of contradictions. The house from where the recovery was effected was possessed by the accused, his wife and children. There is nothing on record to show the exclusive possession of the accused. The arrest information showed that the accused was to be produced before the Court one day after the arrest i.e. on 07.07.2016, which makes the prosecution version suspicious that the recovery was effected on 07.07.2016. The independent witnesses did not support the prosecution case regarding the search given by the police. They admitted the presence of two police officials for which, no explanation was provided. The witness-Babu Ram (PW-2) did not say anything regarding the handing over of the seal and the possibility of interpolation cannot be ruled out. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. We have heard Mr. Rajesh Mandhotra and Ms. Kanta Thakur, learned counsel for the appellant/accused and Ms. Seema Sharma, learned Deputy Advocate General, for the respondent/State. 9. Mr. Rajesh Mandhotra, learned counsel for the appellant/accused submitted that the prosecution case is not reliable. The rukka and the information sent by the Investigating Officer show that the witnesses were associated at 32 miles, where the information was received, whereas the witnesses stated that they were associated at Bhalli. This makes the genesis of the prosecution case suspect. 9. Mr. Rajesh Mandhotra, learned counsel for the appellant/accused submitted that the prosecution case is not reliable. The rukka and the information sent by the Investigating Officer show that the witnesses were associated at 32 miles, where the information was received, whereas the witnesses stated that they were associated at Bhalli. This makes the genesis of the prosecution case suspect. The independent witnesses admitted the presence of two police officials on the spot, for which no explanation was provided by the official witnesses. The independent witnesses also admitted that other family members of the accused were present during the search and there is nothing on record to show the conscious possession of the accused. The arrest information shows that the accused was arrested on 6th July 2017 and not on 7th of July which makes the prosecution case suspect. There are interpolations in the documents regarding the number of seals which makes the prosecution case doubtful. Learned Trial Court did not advert to these aspects and erred in convicting and sentencing the accused; hence, he prayed that the present appeal be allowed and the judgment and order passed by learned Trial Court be set aside. 10. Ms. Seema Sharma, learned Deputy Advocate General, for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same. 11. We have given considerable thought to the submissions and have gone through the records carefully. 12. 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? 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 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 vs. 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 over much discussion of it with others? 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 over much discussion of it with others? Witnesses, especially those who are emotional, and who think that they are morally in 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. (3) consistency with what the witness has said or deposed on other occasions. (2) the internal consistency of the witness's evidence. (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 vs. Sharp and 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. vs. 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 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) vs. Ahmed and Others, (2011) EWCA Civ 610, in paragraphs 11, 12 and 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 available to support the witness. 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 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.” 13. A similar view was taken by the Hon’ble Supreme Court in C. Magesh vs. State of Karnataka, (2010) 5 SCC 645 : 2010 SCC Online SC 541 wherein it was observed: “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. A similar view was taken by the Hon’ble Supreme Court in C. Magesh vs. State of Karnataka, (2010) 5 SCC 645 : 2010 SCC Online SC 541 wherein it was observed: “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard, it is to be noted that this Court in the case titled Suraj Singh vs. State of U.P. (2008) 16 SCC 686 : (2008) 11 SCR 286 has held [Ed. As observed in Krishnan vs. State, (2003) 7 SCC 56 at pp. 62-63, Para 21]: (SCC p. 704, Para 14) “14. “21.......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..........the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and an equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses.” 14. Therefore, the testimonies of the witnesses are to be seen and appreciated to determine their intrinsic and extrinsic consistencies. 15. It was mentioned in the rukka (Ext.PW-14/B), as well as the information under Section 42(2) of NDPS Act (Ext.PW-7/A) that ASI-Desh Raj accompanying police official and independent witnesses namely Pradhan Smt. Sudarshana Kumari and Up Pradhan Babu Ram, Gram Panchayat Bhalli were associated with the raiding party and the investigating officer proceeded towards the spot. It mentions the place “camp at 32 miles at a distance of 17 kilometres west of the police station.” Thus, as per the rukka and the information, the investigating officer had associated independent witnesses Sudarshana Kumari and Up-Pradhan Babu Ram at 32 miles. It mentions the place “camp at 32 miles at a distance of 17 kilometres west of the police station.” Thus, as per the rukka and the information, the investigating officer had associated independent witnesses Sudarshana Kumari and Up-Pradhan Babu Ram at 32 miles. A similar statement was made on oath by ASI-Dev Raj (PW-15), who stated in his examination-in-chief that Pradhan-Sudarshana Kumari and Up-Pradhan Babu Ram were associated in the raiding party, the information under Section 42(2) of NDPS Act (Ext.PW-7/A) and rukka (Ext.PW-15/A) was prepared and handed over to HHC-Jaswant Singh with a direction to carry them to SDPO, Jawali and the Police Station. HHC-Yashwant Singh (PW-10) also stated in his examination-in-chief that the police party was present at 32 miles for patrolling when the Investigating Officer received secret information that Latadeen used to sell charas in his home and charas could be recovered by searching the house. Investigating Officer associated Sudarshana Devi and Babu Ram in the investigation and prepared the information (Ext.PW-7/A) and rukka with a direction to carry them to SDPO Jawali and Police Station, Jawali respectively. He specifically stated in his cross-examination that independent witnesses were associated at a place 32 miles. Therefore, as per the official witnesses and the documents, the raiding party was prepared before preparing the rukka and the information under Section 42(2) of the NDPS Act at 32 miles. 16. Independent witnesses, on the other hand, have given a different version. Babu Ram (PW-2) stated that he and Pradhan Sudarshana went for some Panchyat work and when they were returning, the police party met them on the way. The police associated them for searching the house of Latadeen. Police also associated Surjeet Kumar. He stated in his cross-examination that Panchayat was carrying out the construction work at Bhalli. Two police officials came there. Similarly, Sudarshana Devi (PW-4) stated that she and up-Pradhan-Babu Ram had gone for some Panchayat work on 07.07.2016 and when they were returning, the police party met them on the way. The police associated them and told them that a search of the house of Latadeen was to be conducted. She also clarified in her cross-examination that Panchayat had initiated the construction work at Bhalli itself. Up-Pradhan was also present there. Two police officials came there. The police associated them and told them that a search of the house of Latadeen was to be conducted. She also clarified in her cross-examination that Panchayat had initiated the construction work at Bhalli itself. Up-Pradhan was also present there. Two police officials came there. Both these witnesses are the residents of Bhalli and when they said that they were returning, it can only lead to an inference that they were returning to their houses and they were associated at Bhalli (where the construction was being carried out and they were residing) and not at 32 miles. 17. HHC-Vimal Kumar (PW-13) stated in his cross-examination that the distance between 32 miles and Bhalli is about 4 kilometres and there is a steep gradient. HHC-Yashwant Singh (PW-10) stated in his cross-examination that the distance between Bhalli and 32 miles is about 3 kilometres. These testimonies show that place Bhalli and 32 miles are located at some distance; hence, the official version as deposed by official witnesses and as recorded in rukka that independent witnesses were associated at 32 miles is not supported by independent witnesses, who claimed that they were associated after they were returning from the work at Bhalli. The fact that these witnesses were not associated before writing the rukka and the information under Section 42(2) of NDPS Act is also apparent from the fact that none of these witnesses has deposed that information was reduced into writing in their presence and some police official was sent from the spot with the writing. Hence, there is inconsistency in the statements of the official witnesses and the independent witnesses regarding the place of association of independent witnesses and the sending of rukka and the information under Section 42(2) after associating them. 18. Babu Ram (PW-2) and Sudarshana Kumari (PW-4) stated in their cross-examination that the accused was present in his home along with his wife and son. Two other police officials were also present when the police party reached the house of the accused. Surjit Singh (PW-3) denied that police were already present before his arrival. Similarly, ASI-Desh Raj denied in his cross-examination that two police officials were present in the house of the accused before the arrival of the raiding party. He also stated in his examination-in-chief that on reaching the house of the accused, he was found present in Room No. 4 of the house. Similarly, ASI-Desh Raj denied in his cross-examination that two police officials were present in the house of the accused before the arrival of the raiding party. He also stated in his examination-in-chief that on reaching the house of the accused, he was found present in Room No. 4 of the house. Thus, the independent witnesses and the police officials have given different versions regarding the persons present in the house of the accused at the time of the arrival of the raiding party. 19. HC-Ajay Kumar (PW-1), HHC-Vimal Kumar (PW-13) and ASI Desh Raj (PW-15) stated that the accused was apprised about the search of his house and the police party gave their search to the accused with the IO Kit. No incriminating material was recovered from the members of the raiding party and I.O. Kit. The independent witnesses Babu Ram (PW-2) and Sudarshana Kumari (PW-4) denied this fact. Both of them were permitted to be cross-examined and they denied the previous statements recorded by the police that the police had given their search to the accused. It was suggested to them that they were making a false statement regarding the search as they belonged to the same village as the accused. It is difficult to believe that they would not have supported the prosecution case regarding the search of the police party when they had supported the prosecution regarding the recovery. Thus, the statements of the official witnesses and independent witnesses are inconsistent regarding the search given by the police. 20. The case property is stated to have been sealed with six and four impressions of seal ‘EW’ and deposited with HC Ashwin Kumar. He made an entry in the Malkhana Register (Ext.PW-9/A), in which it was mentioned at serial No. 1 that one cloth parcel was sealed with 3-4 seals of seal ‘EW’. The same was sent for analysis to FSL. The Road Certificate (Ext.PW-8/D) mentions one cloth parcel sealed with four impressions of seal ‘EW’. The word ‘four’ is overwritten and it appears that ‘three’ has been overwritten to read four. No explanation for the same was provided by HC Ashwin Kumar. He has not even stated that there was some error while recording the number of seals and that is why ‘three’ was written wrongly. The word ‘four’ is overwritten and it appears that ‘three’ has been overwritten to read four. No explanation for the same was provided by HC Ashwin Kumar. He has not even stated that there was some error while recording the number of seals and that is why ‘three’ was written wrongly. The fact that three was mentioned in two documents, namely, the Malkhana Register and the road certificate will make it difficult to believe that this was an error because the error could not have been committed in only one document and not in more than one. 21. The police arrested the accused and gave the information of the arrest (Ext.PW-15/E). Significantly, the date of the arrest was not mentioned in the same. It is not signed by independent witnesses but only by Head Constable 98. It mentions that the accused would be produced on the next day i.e. on 07.07.2016 in the Court of learned ACJM, Nurpur. ASI-Desh Raj (PW-15) denied in his cross-examination that the contents of the arrest information show that the accused was arrested on 06.07.2016. However, only one inference can be drawn from the contents of the arrest information (that the accused would be produced before learned ACJM tomorrow i.e. on 07.07.2016) is that the accused was arrested on 06.07.2016 and not on 07.07.2016. 22. It was submitted by Ms. Seema Sharma, learned Deputy Advocate General that these contradictions are minor and are bound to come with time. These should not be blown out of proportion to record the acquittal. This submission cannot be accepted. The inconsistency regarding the place, where the independent witnesses were associated and from where rukka and information under Section 42(2) were sent is intricately connected to compliance with the provision of Section 42(2), which is mandatory. If the witnesses were not associated at 32 miles and the rukka mentions their names, it can lead to an inference that the rukka was not sent from 32 miles before the search and the prosecution case regarding the compliance with the provisions of Section 42 of NDPS becomes suspect. 23. In the present case, the police received prior information but did not obtain the search warrant because the police apprehended that case property would be destroyed by the delay in procuring the warrant; therefore, it resorted to the provisions of Section 42(2). 23. In the present case, the police received prior information but did not obtain the search warrant because the police apprehended that case property would be destroyed by the delay in procuring the warrant; therefore, it resorted to the provisions of Section 42(2). The fact that independent witnesses have not stated anything about preparing the rukka and information under Section 42(2) in their presence and sending the police official with the same shows that there was no compliance with Section 42(2) and the same is fatal to the prosecution case. [See Najmunisha vs. State of Gujarat, 2024 SCC Online SC 520] 24. Similarly, inconsistency regarding the number of persons present on the spot is not minor because the presence of the persons is so intricately connected to the recovery that any inconsistency in the former would affect the latter. 25. The inconsistency regarding the number of seals put on the parcel would show that the testimonies of the witnesses regarding the putting of the seals are not correct, which would affect the integrity of the case property adversely. 26. The inconsistency regarding the date of the arrest of the accused will make the whole case of the prosecution suspect because if the accused was arrested on 06.07.2016 and was to be produced before the learned Court on 07.07.2016, the whole of the prosecution case that information was received on 07.07.2016 and recovery was effected on 07.07.2016 in the presence of the accused will become suspect. Hence, these inconsistencies cannot be ignored. 27. Heavy reliance was placed upon the fact that Surjeet Singh took the photographs and video recorded the process of search. The photographs and the video recording could have been used to lend corroboration to the testimonies of the witnesses but when the testimonies are themselves suspect, there can be no question of their corroboration. The photographs and the video recording by themselves are not substantive pieces of evidence upon which, a conviction can be recorded. 28. In view of these inconsistencies and infirmities, it is difficult to believe the prosecution’s case that the police had conducted the search of the house of the accused and recovered 1 Kg of 200 grams of charas from his house. The accused is entitled to a benefit of the doubt, which is extended to him. 29. 28. In view of these inconsistencies and infirmities, it is difficult to believe the prosecution’s case that the police had conducted the search of the house of the accused and recovered 1 Kg of 200 grams of charas from his house. The accused is entitled to a benefit of the doubt, which is extended to him. 29. Hence, the judgment and order passed by the learned Trial Court is not sustainable and the same deserves to be set aside. 30. Consequently, the present appeal is allowed. Judgments and order passed by learned Trial Court are set aside. 31. The accused is acquitted of the commission of an offence punishable under Section 20 (b)(i)(i)(c) of the NDPS Act after giving him a benefit of doubt. The fine deposited by the accused, if any, be refunded to him after the lapse of the period of limitation. The accused be released from custody if not required in any other case. 32. In view of the provisions of Section 437-A of the Code of Criminal Procedure the appellant is directed to furnish his personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, 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 on receipt of notices thereof, shall appear before the Hon’ble Supreme Court. 33. Records be sent back forthwith. Pending applications, if any, also stand disposed of.