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2008 DIGILAW 149 (HP)

Krishan Chand v. State of H. P.

2008-04-09

SURINDER SINGH, SURJIT SINGH

body2008
JUDGMENT Surjit Singh, J. 1. Heard and gone through the record. 2. Appellant has been convicted of an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for allegedly being in exclusive and conscious possession of 1.050 kgs. of Charas and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000, in default of payment of fine to undergo rigorous imprisonment for a further period of one year. 3. The only submission that has been made on behalf of the appellant-convict is that the appellant was sent up for trial for possessing Charas and the Charas, as per definition contained in Sub-clause (a) of Clause (iii) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, means resin, in whatever form, whether crude or purified, obtained from cannabis plant and also includes concentrated preparation known as Hashish oil or liquid Hashish. It has been submitted that in the present case, as per report of the Chemical Examiner, the entire sample stuff was not resin or say Charas, but only a part of it, to the extent of 35.38 per cent, was resin and, hence, the appellant cannot be said to be in possession of 1.050 kgs. of Charas. He says that what was in possession of the appellant was not whole Charas but something which included Charas (resin) to the extent of 35.38 per cent only and the rest of the stuff was some unknown substance about which report of the Chemical Examiner is silent. He has taken us through the report of the Chemical Examiner, per which the sample contained contents of Charas. 4. We find ourselves in agreement with the aforesaid submission of the learned Counsel for the appellant. His submission is supported by the judgment, delivered by a Division Bench of this Court, in Dharam Pal v. State of H.P. and Anr. appeal Latest HLJ 2007 (HP) 827. 4. We find ourselves in agreement with the aforesaid submission of the learned Counsel for the appellant. His submission is supported by the judgment, delivered by a Division Bench of this Court, in Dharam Pal v. State of H.P. and Anr. appeal Latest HLJ 2007 (HP) 827. In the aforesaid case, it has been held that only the resin content of the stuff is Charas and that in the absence of the report of the Chemical Examiner about the rest of the contents of the stuff, the quantity of the Charas, based on the percentage of the resin found therein by the Chemical Examiner, is required to be worked out and the appellant-accused is to be held responsible for possessing Charas only to the extent, the stuff contains the resin content in it. 5. As noticed hereinabove, the total quantity of stuff recovered from the appellant was 1.050 kgs. The Chemical Examiner has found resin content in it to the extent of 35.38 per cent. That means the Charas/resin content in the recovered stuff was 371 grams. This quantity is less than the commercial quantity, as specified vide Notification No. S.O.1055(E), dated 19th October, 2001, issued by the Central Government, even though more than the upper limit of the small quantity fixed by the same Notification. Thus, the appellant is liable to be punished not under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, as done by the trial Court, but under Section 20(B) of the said Act for which no minimum sentence is prescribed. The offence under Section 20(B) is punishable with imprisonment that may extend to ten years and with fine which may extend to Rs. 1,00,000. Looking to the quantity of resin/Charas found in the stuff recovered from the appellant, we feel that the ends of justice would be met in case his sentence is reduced from ten years rigorous imprisonment and a fine of Rs. 1,00,000 to three years rigorous imprisonment and a fine of Rs. 20,000, in default of payment of fine rigorous imprisonment for a further period of six months. We order accordingly. 6. Appeal stands disposed of.