NDPS | Prosecution Must Prove Both Exclusive And Conscious Possession Beyond Reasonable Doubt: Himachal Pradesh High Court

“Suspicion, However Strong, Cannot Take the Place of Proof…..An accused is presumed to be innocent unless proved guilty beyond reasonable doubt” – Himachal Pradesh High Court reaffirmed the limited scope of interference in an appeal against acquittal and underlined the evidentiary strictness required under the NDPS Act. The Division Bench of Justice Vivek Singh Thakur and Justice Romesh Verma dismissed the State’s appeal and upheld the trial court’s acquittal of two individuals charged with illegal possession of 1 kg 50 grams of charas each, citing serious procedural lapses, absence of independent witnesses, contradictions in police testimony, and unexplained gaps in the chain of custody.

The Court declared, “It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.”

“The appellate court must bear in mind that in case of acquittal, there is double presumption in favour of the accused” – Court declines to overturn plausible view taken by trial court

The origin of the case lies in FIR No. 199 of 2008, registered on 18 December 2008 at Police Station Karsog, District Mandi. According to the prosecution, the accused Kanshi Ram and Hari Om were allegedly apprehended by a patrolling police team while carrying polythene bags containing charas. The seizure allegedly took place in a forest area, and samples were collected and sealed on the spot. The trial court, however, acquitted both accused in 2015 after finding material contradictions and procedural irregularities in the investigation.

The High Court noted that in criminal jurisprudence, particularly under the stringent NDPS regime, the burden on the prosecution is high and procedural safeguards are sacrosanct. The Court began its analysis by reiterating the settled principles of law governing appeals against acquittal. Citing the Supreme Court in Rajesh Prasad v. State of Bihar and Constable 907 Surendra Singh v. State of Uttarakhand, the Bench emphasized that “if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.”

The Court further elaborated, “The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

“Glaring contradictions, missing links in chain of custody, and failure to secure independent witnesses fatally undermine the prosecution’s case” – Court finds no perversity in acquittal

Turning to the factual matrix, the Court meticulously dissected the prosecution’s case and found it riddled with inconsistencies. It noted that the timing of arrest, as narrated by different prosecution witnesses, was contradictory. While the Investigating Officer (PW-9) stated the arrest occurred at 2:35 PM on foot patrol, other witnesses including PW-2 and PW-3 stated that the arrest took place at 4:50 PM during vehicle patrol.

The Court observed, “From the perusal of Ext. PW-6/A, which is the Daily Station Diary report, the police party's departure is shown at 2:35 p.m., yet the IO claims the arrest took place at the same time – this is a glaring contradiction and procedural impossibility.”

Moreover, the Court found discrepancies in the method of sample collection. While PW-9 claimed the samples were sealed in matchboxes, PW-2 and PW-3 testified they were packed in ‘FOURSQUARE’ cigarette packets. Even more concerning was the forensic report (FSL), which recorded the sample weights as 18.15 grams and 17.47 grams, instead of the 25 grams each as claimed.

The Court declared, “The variation in sample weights is very material and in the absence of any explanation by the prosecution, adverse inference is required to be drawn.”

Another major flaw highlighted by the Court was the failure to examine critical witnesses in the chain of custody. Constable Jitender Kumar, who was allegedly entrusted with the rukka and samples for dispatch to the police station and FSL, was not examined by the prosecution without any explanation. The Court noted that his testimony was essential to establish the integrity of the recovery and delivery process.

“The prosecution has failed to connect the FSL report to the contraband allegedly recovered from the respondents,” the Court said, adding that the evidence was not sufficient to prove that the same samples were sent, received, and tested.

Additionally, the Court found serious contradictions regarding the presence of senior officers. While PW-2 stated that Dy. SP Raj Kumar reached the spot, PW-9 denied his presence outright. Further, an official monthly report (Ext. DW-1/A) contradicted prosecution claims by stating that 3.15 kg of charas was recovered in a nakabandi conducted under the SDPO – different from the alleged 1.5 kg per accused stated in court.

The Bench also criticised the absence of independent witnesses. While the IO claimed attempts were made to associate locals, other officers admitted no such effort was undertaken. The Court remarked, “Non-association of independent witnesses in a public place creates serious doubts about the fairness of the alleged recovery.”

“The prosecution must prove both exclusive and conscious possession beyond reasonable doubt” – High Court finds prosecution failed to prove essential ingredients under NDPS Act

The Court reiterated that in offences under Section 20 of the NDPS Act, the prosecution must establish not merely physical custody but also conscious possession of the contraband. Here, not only was the recovery itself under doubt, but the Court also held that the prosecution “failed to prove that the accused persons were found in exclusive and conscious possession of the contraband.”

Highlighting the standard of proof under the Act, the Court observed, “There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused… and must show that in all human probabilities the act must have been done by the accused.”

In this case, the Court held that the entire link evidence was compromised, the recovery procedure was doubtful, and contradictions in official versions destroyed the prosecution’s narrative.

In conclusion, the High Court held that the trial court’s judgment was a plausible and legally sustainable view based on the evidence. It found no perversity or illegality warranting interference.

“The learned court below has rightly appreciated the oral as well as documentary evidence placed on record after thrashing the entire material… Therefore, we are of the considered opinion that the learned Court below has rightly passed the judgment of acquittal.”

Accordingly, the appeal was dismissed, and the bail bonds of the accused were discharged.

Date of Decision: 29 October 2025