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IN THE COURT OF HON’BLE SPECIAL JUDGE-III CUM

ASJ-II, KANGRA AT DHARAMSHALA(H.P.)

In Ref:-

THE STATE OF H.P.

VERSUS

MANOHAR LAL & ANOTHER

Case F.I.R No.: 156/2015

Dated: 20/08/2015

Under Section: 22-25-29-61-85 of N.D.P.S. Act, 1985

Police Station: Palampur

WRITTEN ARGUMENTS

Sir,

The applicant/accused begs to submit as under:

1. That, the applicant/accused has been charged for the offences under section
25 read with section 29 of NDPS Act, 1985 for the allegedly abetting criminal
conspiracy in conveyance with co-accused Manohar Lal and in pursuance of
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such criminal conspiracy knowingly permits his vehicle to be used for the
commission of said offence.

That to prove their case, prosecution has examined as many as thirteen

witnesses.

2. That, PW-1 Rajesh Awasthi son of Sh. Chuni Lal Awasthi, who was Up-
Pradhan of Gram Panchayat, Band-Vihar, Block Panchrukhi. He was
associated as an independent witness for the purpose of search and seizure
was declared hostile by the public prosecutor as he did not support the
prosecution case and in his cross-examination by the public prosecutor he
denied that on 20/08/2015 during the search of the car of the accused, police
found a carry bag put on seat lying behind the back of accused Manohar Lal
and on checking that carry bag, black material was found inside it, which was
disclosed by the police as ‘Charas’. He further denied that no seizure of any
contraband was made in his presence.

It was admitted by him in the cross-examination by the Ld. PP that, the

seizure memo Ex. PW-1/D bears his signatures as witness but the signature
on the said memo was not taken at the spot after recovery of contraband from
the accused, rather the signature were taken at Police Post, Panchrukhi.

3. That PW-2, Vijay Kumar S/o Sh. Panch Singh, was also associated as an
independent witness for the purpose of alleged recovery of contraband and he
too was declared hostile by public prosecutor and in his cross-examination,
he denied that no contraband ‘Charas’ was recovered in his presence on
20/08/2015 from the car of the accused and no seizure of any nature was
made in his presence by the police officials.
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Further, in the cross-examination by the Ld. PP, he admitted it to be

correct that, his signature on the seizure memo Ex. PW-1/D were got done in
the Police Post, Panchrukhi and no NCB-1 forms in triplicate were filled in
his presence.

4. That PW-4 HASI Ranjeet Singh, PW-5 Satish Kumar, PW-7 H/ASI Jagdish
Chand, PW-8 HC Sunil Kumar, PW-10 ASI Harish Chand are formal
witnesses and there evidences does not require any discussion.

5. That PW-9 Rakesh Chand, who was the member of raiding party and in his
examination-in-chief, he stated that the carry bag of contraband was found
between the back seat and back of the seat on which Manohar Lal was sitting
adjacent to the driver Suresh Kumar. The aforementioned statement is not
corroborative qua recovery of contraband.

Further, in his cross-examination by defence counsels he stated

that, they went for patrolling in a private vehicle and checked 30-40 vehicles
but description of vehicles checked during patrolling was not made the
investigating officer.

He further admitted that, Ex. PW1/E is prepared under Section

50 of NDPS Act in which joint consent of accused persons had been obtained.
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6. That PW-13 Brahm Dass, who has conducted the investigation in the present
case, in his cross examination admitted that there was only one consent memo
Ex.PW1/E was prepared.

Further, he admitted that the case property in the present case

was not produced before the Ld. Magistrate for compliance of Section 52A of
ND&PS Act at the time of seeking police remand of the accused persons after
their arrest.

7. That PW-3 HHC Ajay Bhushan in his examination-in-chief, stated that on

20.08.2015, he along with ASI Ramesh Chand, HC Rajinder Kumar,
Constable Satpal and driver Vijay Kumar was present at Balu Pull for traffic
checking and nowhere revealed that whether the I/O Brahm Dass was with
them or not.

8. That the defence relies upon the following judgment in support of it case:

i. The Hon’ble Supreme Court in Mohammed Khalid and Another v/s

State of Telangana (2024) 2 SCC (Cri) 650 (2024) 5 SCC 393 held that
“Proceedings u/s 52-A also not undertaken by the IO for preparing an
inventory and obtaining samples in presence of the jurisdictional
Magistrate — Resultantly, the FSL report, held, also nothing but a
waste paper and declined to be read in evidence.”
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ii. That, further The Hon’ble Supreme Court in Surepally Srinivas v/s The
State of Andhra Pradesh Criminal Appeal No. 1475-1476 of 2025
held that, “ Non-compliance with procedural safeguards under NDPS
Act, 1985, particularly Sections 42 & 52A, and Standing Order No.
1/89, raises a reasonable doubt about the integrity of seized
contraband, warranting acquittal of the accused.”

iii. That, further The Hon’ble Supreme Court in Yusuf @ Asif v/s State
Criminal Appeal No. 3191 of 2023 held that “No evidence that the
samples of the seized contraband were drawn in the presence of the
Magistrate and the inventory of the seized contraband was duly
certified by the Magistrate—Held that the said seized contraband and
the samples drawn therefrom would not be a valid piece of primary
evidence in the trial—Once there is no primary evidence available, the
trial as a whole stands vitiated.”

iv. That further in Tosham Kumar and Rahul Deshwal and State of H.P.,
Criminal Appeal (s) No.(s) 371 of 2019, 486 of 2019, in para no. 23
and page no. 10, the Hon’ble High Court of Himachal Pradesh has relied
on the judgment titled as “Sanjit Kumar @ Munna Kumar Singh v/s
State of Chattisgarh, AIR 2022 SC 4051”, wherein it has been held
that, if an independent witness comes up with the story, which creates
a gaping holes in the prosecution story about the very search and
seizure, then the case of the prosecution should collapse like pack of
cards.
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v. That further the Hon’ble High Court of Himachal Pradesh observed in

a judgment titled as “The State of HP v/s Neelma Devi Cr. Appeal No.
22 of 2014”, Page No. 05, Page No. 13 of the judgement wherein it has
been held that “Independent witnesses did not support the prosecution
case.

vi. That, further the Hon’ble Supreme Court in Gangadhar @ Gangaram

v/s State of Madhya Pradesh (2021) 1 SCC (Cri) 181 (2020) 9 SCC
202 held that, “presumption against accused of culpability under S. 35,
and under S. 54, to explain possession satisfactorily, are rebuttable —
It does not dispense with obligation of prosecution to prove charge
beyond all reasonable doubt.”

vii. That, further the Hon’ble Supreme Court in Hanif Khan @ Annu Khan
v/s Central Bureau of Narcotics (2021) 2 SCC (Cri) 215 (2020) 16
SCC 709 held that “There can hardly be any difference between a case
of non-production of a sample and the production of a sample doubtful
in its identity in being co-related to what was seized from the accused.
In both cases, it will be become doubtful if the FSL Report is with regard
to the very sample seized from an accused.”

viii. That, further the Hon’ble Supreme Court in Naresh Kumar @ Nitu v/s
State of Himachal Pradesh (2018) 2 SCC (Cri) 89 (2017) 15 SCC 684
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held that, “Reversal of acquittal of accused, by High Court, speculative,

based on conjecture and surmises — Prosecution failed to establish
foundational facts beyond all reasonable doubt — Acquittal restored.”

ix. That, further the Hon’ble Supreme Court in Sanjeet Kumar Singh @
Munna Kumar Singh v/s State of Chhattisgarh 2022(4) AICLR 601
(S.C.) held that, “Independent witnesses not merely denied their
presence and participation but also came up with explanation as to how
their signature found a place in panchanama document — Presumtion
u/S. 54 of the Act cannot be raised as it must be established that
recovery was made from accused.”

x. That, further the Hon’ble Supreme Court in Union of India v/s Leen
Martin and Another (2018) 2 SCC (Cri) 562 (2018) 4 SCC 490 held
that, “Statement of independent panch witnesses, depicting a different
picture than one portrayed by official witness, as to recovery and
seizure — Recovery of narcotic substance, not proved beyond
reasonable doubt.”

xi. That, further the Hon’ble High Court of Himachal Pradesh in State of
Himachal Pradesh v/s Jai Kishan 2025 (1) Him L.R (DB) 6 held that,
“If a bag carried by accused is searched and his personal is also
started, Section 50 would be applicable.”
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xii. That, further the Hon’ble High Court of Himachal Pradesh in State of
Himachal Pradesh v/s Suresh Kumar and Anr. 2023 (1) DRUGS
CASES (Narcotics) 382 held that, “the evidence of the official witnesses
do not inspire confidence, moreover, the version of the police officials
regarding search and seizure of the alleged contraband from the
possession of the accused is also not supported by the independent
witnesses — the story of the prosecution comes under the cloud of
suspicion and, as such, the accused persons are entitled for the benefit
of doubt — appeal dismissed.”

xiii. That, further the Hon’ble High Court of Himachal Pradesh in “Karuna
Shankar Puri v/s State of Himachal Pradesh” held that “samples were
required to be taken in the presence of the learned Magistrate and it is
impermissible to take samples on the spot in the absence of learned
Magistrate; hence, no reliance can be placed upon the report of the
analysis”.

xiv. That, further the Hon’ble High Court of Himachal Pradesh in Bhagwan
Dass v/s State of Himachal Pradesh 2002 (2) Shim. L.C. 305 held
that, “Charas Recovered from bag lying be for the accused — not from
possession of accused —Accused were not possession of bag— No
presumption can be drawn against accused—Burden to prove lies on
prosecution — Possession of chakras with accused not proved —
Recovery not free from doubt—Prosecution failed to prove its case
against accused.”
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xv. That, further the Hon’ble Supreme Court of India in State of Himachal
Pradesh v/s Trilok Chand and Another (2018) 1 SCC (Cri) 714 (2018)
2 SCC 342 held that, “Criminal Trial - Appreciation of Evidence —
Contradictions, inconsistencies, exaggerations or embellishments ——
Contradictions in the statement of witnesses—Effect —Held,
contradictions in the statement of witnesses are fatal for the case,
though minor discrepancies or variance in their evidence will not
disfavour.”

xvi. That, further the Hon’ble High Court of Himachal Pradesh in Bagh
Singh @ Bagga v/s State of Himachal Pradesh 2025 (1) Him L.R.
(HC) 189 held that, “It is undisputed that samples were taken on spot-
This fact was specifically mentioned in seizure memos Reports of
analysis also show that samples were analysed—It was concluded after
their analysis that samples were poppy husk and contained Meconic
Acid and Morphine— It was laid down by Supreme Court in Simranjit
Singh v. State of Punjab, 2023 SCC OnLine (SC) 906 that Section 52-
A (3) requires officer to approach Magistrate to seek permission to
draw representative samples—Samples will then be enlisted, and
correctness of list of samples so drawn will be certified by Magistrate—
Samples were required to be taken in presence of Magistrate and it is
impermissible to take samples on spot in absence of Magistrate-Trial
Court did not have advantage of judgment pronounced by Supreme
Court— Impugned judgment set aside-Accused is acquitted-Appeal
allowed.”
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xvii. That, further the Hon’ble High Court of Himachal Pradesh in Jitender
Chaudhary v/s State of Himachal Pradesh 2025 (1) Him L.R. (HC)
317 held that, “4.NDPS Samples -The question of drawing samples at
the time of seizure, which, more often than not, takes place in the
absence of the Magistrate, does not, in the above scheme of things,
arise. This is so especially when, according to Section S2-A(4) of the
Act, samples drawn and certified by the Magistrate in compliance with
subsections (2) and (3) of Section 52-A above constitute primary
evidence for the purpose of the trial. 5.NDPS Samples -Section 52-A
(3) requires officer to approach Magistrate to seek permission to draw
representative samples- Samples will then be enlisted, and correctness
of list of samples so drawn will be certified by Magistrate.”

xviii. That, further the Hon’ble High Court of Himachal Pradesh in Prakash
Chand v/s State of Himachal Pradesh 2023 (1) Him L.R. (DB) 623
held that, “1. It is more than settled that more serious the offence, more
heavy burden lies upon prosecution to prove guilt of accused.
Prosecution is to discharge its burden of proving guilt of accused
beyond all reasonable doubts by way of legal evidence which should be
cogent and convincing. 2. Independent Witness— Though, it is not
necessary that without support of independent witness, prosecution
case cannot stand, however, for arriving at such conclusion, evidence
led by prosecution must appear to be convincing and trustworthy.”
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xix. That, further the Hon’ble Supreme Court in Gorakh Nath Prasad v/s
State of Bihar (2018) 1 SCC (Cri) 711 (2018) 2 SCC 305 held that,
“Independent witnesses with regard to search and seizure, PWs 2 and
3, having turned hostile, despising that their signatures were obtained
on blank paper at the police station — Thus, mere fact of a FSL report
being available, is no confirmation either of seizure or that what was
seized was ganja, in absence of production of seized item in court as an
exhibit.”

PRAYER

In view of the foregoing submission, it is most respectfully prayed that this

Hon’ble Court may acquit the present accused.

Date: /05/2025 (Suresh Kumar)

Place: Dharamshala Accused
Through Counsel,
Sh. A. S. Chopra,
Advocate, Dharamshala.