Charged under the wrong NDPS section, convicted anyway: Himachal HC upholds Spasmo-Proxyvon verdict
Justice Rakesh Kainthla found that Firoz Khan should have been charged under Section 21, not Section 22, because dextropropoxyphene is not a scheduled psychotropic substance, but held the error caused no prejudice and that 202 capsules put him 0.2 grams over the small-quantity line.
The trial court got the section wrong. It charged and convicted Firoz Khan under Section 22 of the NDPS Act, which deals with psychotropic substances, when the drug in his bag, dextropropoxyphene, is not in the Schedule of psychotropic substances at all. The Himachal Pradesh High Court has said so in terms, and has upheld the conviction anyway. Twelve years after he was sentenced at Nahan, Khan has lost his appeal, because he always knew he was being tried for 202 capsules of Spasmo-Proxyvon and the mislabelled section did not mislead him.
Justice Rakesh Kainthla, sitting singly, dismissed Criminal Appeal No. 191 of 2014 on 26 October 2026, having reserved it on 6 October. The appeal challenged a judgment of conviction dated 5 May 2014 and an order of sentence dated 13 May 2014 passed by the Special Judge-I, Sirmaur District, at Nahan, which had sent Khan to rigorous imprisonment for seven months with a fine of ₹10,000 and one month of simple imprisonment in default. That sentence now stands.
A man who turned back in a lane
The prosecution version was that on 27 July 2012 a patrolling party led by Inspector Laiq Ram, the SHO, with ASI Ram Pal, ASI Lekh Raj, Head Constable Khazan Singh, Constables Om Parkash and Naveen Kumar and Lady Constable Promila, was moving through a lane in Amarpur Mohalla, Nahan. A man carrying a bag came from the opposite side, saw the police, turned and started to run. The police caught him. They picked up Ajay Kumar, who was on the road, as a witness, and asked the man his name. He gave it as Firoz Khan.
The bag was checked in Ajay Kumar's presence. It held 202 capsules of Spasmo-Proxyvon. Khan had no document authorising him to carry them. Inspector Laiq Ram put the capsules back in the carry bag, the carry bag into a parcel, and sealed the parcel with a seal bearing the pharmacist's prescription symbol, ℞. He filled the NCB-I form in triplicate, impressed the seal on it, took a sample seal on a separate piece of cloth, and handed the seal to Ajay Kumar after use. A seizure memo was drawn, a ruka sent to the police station, and an FIR registered. The parcel went to the malkhana in-charge, Head Constable Ravi Kumar, who entered it at serial number 467, and was carried by Constable Om Parkash to the Forensic Science Laboratory at Junga. The special report reached the Additional Superintendent of Police, Sanjeev Lakhanpal, at 4 p.m. on 29 July. The laboratory reported that the capsules contained dextropropoxyphene napsylate.
Ten witnesses were examined. Ajay Kumar, the only independent one, did not support the prosecution. Khan, in his statement under Section 313 of the Code of Criminal Procedure, denied everything. His account was that the police had raided his house in his absence at about 3.30 or 3.45 p.m., that his daughter called him from work at their instance, and that he was arrested at home at about 5 p.m. He examined one defence witness, Shakeel Ahmed.
Section 22, Section 21, and Section 215
Mr Anshul Bansal, Senior Advocate, assisted by Mr Piyush Dhanotia, led with the charge. Dextropropoxyphene napsylate does not appear in the list of psychotropic substances, so Section 22 could not apply. Napsylate, he said, is a stabilising agent used in medicines to steady the effect of stronger ingredients. He also argued that the police had apprehended Khan in a busy place without joining anyone from the vicinity, that the witnesses spoke of a seal R while the parcel bore ℞, that the witnesses contradicted each other on material points, and that the defence of a staged arrest at home was highly probable.
Mr Jitender Sharma, Additional Advocate General, conceded part of the first point and turned it around. The charge should have been under Section 21, which covers manufactured drugs and preparations, because Spasmo-Proxyvon is a manufactured drug. But dextropropoxyphene appears at serial number 33 of the Central Government's notification specifying small and commercial quantities, and Note 4 to that notification says the quantities apply to the drug in dosage form and to its isomers, esters, ethers and salts, not just to the pure drug content. The salt was in the list. And no prejudice flowed from the wrong section.
Justice Kainthla agreed on both halves. The list of psychotropic substances is in the Schedule to the Act, dextropropoxyphene is not in it, and the charge was wrongly framed under Section 22 when it should have been framed under Section 21. But that was not the end. The charge-sheet specifically said that Khan was found with 202 capsules of Spasmo-Proxyvon containing dextropropoxyphene napsylate. He knew what he was being tried for and defended himself on that footing. The judge applied State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, where the Supreme Court held that the “wrong section in the charge does not constitute a fundamental defect”, and read Section 215 of the Code: no error in stating the offence is material unless the accused was in fact misled by it and it occasioned a failure of justice. No such objection had been taken at trial. The error did not invalidate the trial.
On the napsylate argument the judge used the appellant's own memorandum of appeal against him. It described napsylate as a stabilising agent for a stronger drug. That made it a salt of dextropropoxyphene, and Note 4 brings salts within the notification. Khan was not being tried for possessing something outside the law.
The witness who signed and then denied
Ajay Kumar's evidence was the appellant's best hope and the judge dealt with it at length. In chief, Ajay Kumar said no proceedings took place in his presence. He was permitted to be cross-examined by the prosecution. He denied that the police caught Khan, searched him, found the capsules, prepared documents or handed him the seal. Then he admitted his signatures on the seizure memo and on the sample seal, and could not explain how they got there. Cross-examined by the defence, he said the police had raided Khan's house at about 3.45 p.m. and that Khan was called by his daughter. He denied having given any statement to the police, but Inspector Laiq Ram testified that he had recorded Ajay Kumar's statement as given, and that was not challenged.
The judge held that Ajay Kumar had made two statements that cannot stand together, one to the police that Khan was searched in his presence and 202 capsules recovered, and one in court that he was not. His credit stood impeached under Section 155(3) of the Indian Evidence Act. Relying on Sat Paul v. Delhi Administration, (1976) 1 SCC 727, Mahesh v. State of Maharashtra, (2008) 13 SCC 271, Paramjeet Singh v. State of Uttarakhand, (2010) 10 SCC 439, and the High Court's own decision in Ian Stilman v. State, 2002 (2) ShimLC 16, he held that the testimony of a witness who says different things at different times is to be approached with caution and, where he stands thoroughly discredited, discarded. Ajay Kumar's evidence could not be used to dislodge the prosecution.
Why nobody else from the lane was called
The four police witnesses to the recovery were consistent in chief, and their cross-examinations fixed the geography. They had left the police station at about 3.40 p.m. and walked to Naya Bazar, then towards the dairy shop, from where one road leads to the Kalisthan pond and another to Purbia Mohalla. Khan was coming from Purbia Mohalla. The lane was frequented by the public and the area was thickly populated. Two constables were in plain clothes; the rest were in uniform. Head Constable Khazan Singh said the ASI tried to find witnesses in the vicinity but nobody was available, and that many people gathered only after the proceedings were over. The others said no one from the neighbouring houses was called.
Justice Kainthla held that this was a chance recovery. The police were on patrol with no prior information; Khan's attempt to slip away was what made them suspicious. On Kashmira Singh v. State of Punjab, (1999) 1 SCC 130, a patrolling party is under no obligation to carry independent witnesses, and obtaining signatures from passers-by after the recovery would add nothing. He followed the High Court's own line in Chet Ram v. State, Criminal Appeal No. 151 of 2006, decided on 25 July 2018, and Kehar Singh v. State of H.P., 2024 SCC OnLine HP 2825, and the Supreme Court in Raveen Kumar v. State of H.P., (2021) 12 SCC 557, Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627, and Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: the absence of independent witnesses is not fatal, but it puts the court on notice to scrutinise the official witnesses with greater care and to give weight to material, not trivial, contradictions. The police had found Ajay Kumar on the road and joined him, and nobody suggested to any witness that he was not a chance witness or bore Khan ill will.
Houses, feet, hours and routes
The contradictions the defence listed were about numbers. Constable Om Parkash put 400 to 500 houses in Purbia Mohalla; Khazan Singh said 10 to 12 houses near the spot; the Inspector could not say whether there were 500 to 600. Om Parkash put the arrest 150 to 200 metres from the main road, Khazan Singh 15 feet, ASI Lekh Raj 10 metres, and the Inspector 15 to 20 feet from the Kalisthan pond. The proceedings took an hour and a half, an hour, two to two and a half hours, or two hours, depending on who was asked. One witness said the party reached Naya Bazar through the PWD Rest House, another through the Chaugan.
The judge took each in turn, with the Supreme Court's principles in Rajan v. State of Haryana, 2025 SCC OnLine SC 1952, Karan Singh v. State of U.P., (2022) 6 SCC 52, and Anuj Singh v. State of Bihar, 2022 SCC OnLine SC 497, as the frame. Time was guesswork, as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, says people estimate it on the spur of the moment. Distance was estimate, not measurement. The house counts answered different questions, one about the whole mohalla and the other about the immediate vicinity. Nothing on record showed that the Chaugan and the Rest House were in different places. Whether anyone was asked to witness the proceedings was a detail that memory loses. None of it touched the core.
The defence witness fared no better. Shakeel Ahmed said he was a munshi with a contractor, Yogesh Aggarwal, that Khan worked there as a mason, that Khan was at the building site on 27 July 2012 and took leave to go home after a call about a police raid, and he produced an attendance register. But neither his name nor the contractor's had been put to any prosecution witness, and Khan had not mentioned the job in his Section 313 statement. The testimony had no foundation. Shakeel Ahmed also admitted he never told the police that Khan had been at work till 4.30 p.m., which on Jarnail Singh v. State of Punjab, (2011) 3 SCC 521, falsified his version.
A seal called R
The last set of objections went to the case property. The witnesses had called the seal R; the impression on the parcel was ℞. The judge found no contradiction in that. The impression is “a specialised symbol, and the people are not aware of its name”; it looks like an R, and witnesses who called it that could not be faulted. The sample seal taken on the spot was legible, even Ajay Kumar admitted signing it, the NCB-1 form carried the same impression, and the laboratory's report recorded a parcel bearing three seals of ℞, intact and tallying with the specimen impressions sent separately and with the form. That was enough on Baljit Sharma v. State of H.P., 2007 HLJ 707, Hardeep Singh v. State of Punjab, (2008) 8 SCC 557, State of Punjab v. Lakhwinder Singh, (2010) 4 SCC 402, and Surinder Kumar v. State of Punjab, (2020) 2 SCC 563. The seal itself was not produced, but on Varinder Kumar v. State of H.P., 2019 (3) SCALE 50, that did not matter where the sample seal and the form were exhibited and the trial court had itself recorded, while taking Khazan Singh's evidence, that the seals were intact.
The complaint that the parcel was never resealed under Section 55 failed on Prem Bahadur v. State of H.P., 2009 (1) Shim LC 65, which treats Sections 52 and 55 as directory. The officer who made the recovery was the SHO himself, and his omission to reseal was not fatal. The testimony of the police officers, the judge held on Kripal Singh v. State of Rajasthan, (2019) 5 SCC 646, Karamjit Singh v. State, AIR 2003 SC 3011, Sathyan v. State of Kerala, 2023 SCC OnLine SC 986, and Budh Ram v. State of H.P., 2020 Cri LJ 4254, could not be discarded for the reason that they were police officers, and nothing showed a motive to implicate Khan falsely.
Twenty grams and a fraction
The laboratory found 100.02 milligrams of dextropropoxyphene napsylate in each capsule. Across 202 capsules that is 20,204.04 milligrams, or 20.20404 grams. The Central Government has notified 20 grams as the small quantity and 500 grams as the commercial quantity for this drug. Khan was therefore found with an “intermediate quantity, slightly exceeding the small quantity threshold”. Measured against that, the judge held, seven months of rigorous imprisonment and a fine of ₹10,000 was not excessive on the principle of proportionality and called for no interference.
Order
The High Court found no infirmity in the judgment of conviction or the order of sentence. The appeal was dismissed. The conviction for possessing 202 capsules of Spasmo-Proxyvon stands, with the sentence of seven months of rigorous imprisonment, a fine of ₹10,000 and one month of simple imprisonment in default. A copy of the judgment, along with the trial court's records, is to be sent back forthwith, and pending miscellaneous applications stand disposed of.