Himachal HC upholds acquittal in 2 kg charas case: yellow tape at seizure, brown tape in court
A division bench of Justice Vivek Singh Thakur and Justice Bhupesh Sharma dismissed the State appeal against the 2018 acquittal of three men stopped in a Mahindra Xylo at Dohri Diwar, Solan. Both independent witnesses denied seeing the recovery, the police officers contradicted each other on where the secret information was received and where the bag was opened, and the parcel opened in court did not match the seizure record.
The Himachal Pradesh High Court has refused to disturb the acquittal of three men accused of carrying 2.002 kg of charas through Solan in December 2016. A division bench of Justice Vivek Singh Thakur and Justice Bhupesh Sharma, in a judgment authored by Justice Sharma and delivered on 29 October 2026, dismissed Criminal Appeal No. 208 of 2019 filed by the State against the Special Judge-III, Solan, who had acquitted Kapil alias Dhillo, Naveen Bhura and Harinder Malik alias Amit of offences under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 10 September 2018. The bench found that the prosecution case failed at three points: the independent witnesses did not support the recovery, the police witnesses contradicted one another on material facts, and the case property produced in court was wrapped in tape of a different colour from the one recorded at seizure.
A tip at Saproon Chowk and a backpack between the passenger’s legs
The prosecution version was that ASI Ashwani Kumar, in charge of the Special Investigation Unit at Solan, left on patrol at 11.30 am on 26 December 2016 with five other officers and received specific information at Saproon Chowk that a golden brown Mahindra Xylo bearing registration number 5936 was carrying contraband towards Chandigarh. He recorded his reasons for belief under Section 42 of the Act and sent them to his supervisory officer through Constable Amit Kumar. The party set up a nakka at the Subathu bifurcation at Dohri Diwar and at 1.15 pm stopped vehicle HR-46C-5936 coming from the Solan bazaar side. Harinder Malik was driving, Kapil was in the front passenger seat and Naveen Bhura was in the rear. Two independent witnesses, Rajesh Thakur and Rajesh Verma, were associated, and a backpack kept between Kapil’s legs was found to contain two blue polythene packets holding 2.002 kg of charas.
The contraband was wrapped in yellow tape inside blue polythene bags and sealed in a cloth parcel with three seals bearing the impression A; the sample seal was handed to Rajesh Thakur. The NCB-I form was filled in triplicate, a seizure memo prepared and FIR No. 297 of 2016 registered at Police Station Sadar, Solan. That evening the SHO, Inspector Anil Sharma, resealed the parcel with seal T under Section 55 and it was deposited in the malkhana. The next day a special report under Section 57 went to the Deputy Superintendent of Police, and the Chief Judicial Magistrate, Solan certified the inventory under Section 52A. The State Forensic Science Laboratory at Junga reported on 9 January 2017 that the sample was charas. The trial court nonetheless acquitted all three.
What the State argued and how the bench framed its own limits
Mr Raj Negi, Deputy Advocate General, argued that the four official witnesses to the search and seizure, Constable Ashwani Kumar (PW-11), Head Constable Rajesh Kanwar (PW-15), SI Ashwani Kumar, the investigating officer (PW-16), and Constable Amit Kumar (PW-17), had fully supported the recovery; that Section 42(2) had been complied with; and that although the independent witnesses Rajesh Thakur (PW-1) and Rajesh Verma (PW-2) had not fully supported the prosecution, they admitted their signatures on the seizure memo, which was enough to establish their presence at the spot. There were no procedural lapses, he said, and the trial court’s findings were perverse. Mr Anirudh Sharma, for Kapil and Naveen Bhura, and Mr Tarun Mehta, for Harinder Malik, defended the acquittal.
Before turning to the evidence, the bench set out the limits on an appellate court hearing an appeal against acquittal, drawing on Muralidhar alias Gidda v. State of Karnataka, (2014) 5 SCC 730, Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471, H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581, Jafarudheen v. State of Kerala, (2022) 8 SCC 440, and Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433. The presumption of innocence is strengthened by an acquittal; the appellate court may reappreciate the evidence but can interfere only where the trial court’s view is perverse, rests on a misreading or omission of material evidence, or is one no reasonable person could reach, and never merely because another view is also possible. The burden of proof in a criminal trial never shifts, the bench added, and the more serious the offence, the stricter the degree of proof.
Hostile witnesses, three versions of where the tip came in, and a seal that went back to the police
The bench found that neither independent witness supported the recovery. Rajesh Thakur admitted the sealing and the seizure memo but denied that the contraband was recovered from vehicle HR-46C-5936 in his presence. Rajesh Verma admitted that the contraband was weighed in front of him but denied that it was recovered from the accused in his presence and denied that the sealing and seizure took place on the spot. Their presence at the interception, the recovery and the sealing was therefore not proved, and their evidence, the court said, “creates doubt regarding veracity of the prosecution case”.
The official witnesses did not fare better. On where the secret information was received, the investigating officer said he was standing outside the police vehicle at Saproon Chowk; Constable Amit Kumar said the information came while the officer was inside the vehicle and that he wrote it down sitting there; Constable Ashwani Kumar said the officer was inside the traffic gumti at Saproon Chowk. The witnesses also differed on where the reasons for belief were reduced to writing. On the search itself, the investigating officer said he opened the backpack outside the vehicle, while Constable Ashwani Kumar and Head Constable Rajesh Kanwar said it was opened and checked inside. The bench described these as material contradictions on material points, “rendering their version unworthy of credence and unbelievable”.
Then there was the tape. The seizure memo, the rukka and the FIR all recorded that the charas was wrapped in yellow tape before being sealed, and the official witnesses were consistent on that. But when the parcel was opened in court on 13 December 2017 during the testimony of Constable Ashwani Kumar, the trial judge recorded that the two blue polythene packets were wrapped in brown tape. The bench treated the discrepancy as significant because of what Rajesh Thakur had said about the sample seal: the police had taken seal A back from him and returned it only on the day his statement was recorded in court. If the seal never stayed with the independent witness, the identity and safe custody of the case property could not be taken as proved.
Order
The bench held that the recovery from the conscious possession of the accused was not proved in view of the independent witnesses’ evidence, that the identity and safe custody of the case property was not established because the seal remained with the police, and that the official witnesses contradicted each other on where the information was received, where the reasons for belief were recorded and where the bag was searched. The trial court had rightly acquitted the accused on a prosecution case suffering from material infirmities, contradictions and omissions. Criminal Appeal No. 208 of 2019 was dismissed. Under Section 437-A of the Code of Criminal Procedure, corresponding to Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, each respondent was directed to furnish bail bonds of ₹25,000 with one surety in the like amount before the Registrar (Judicial) within four weeks, effective for six months, with an undertaking to appear before the Supreme Court if a special leave petition is filed. The trial court record was ordered to be returned forthwith. The judgment, reserved on 28 September 2026, is approved for reporting.