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2009 DIGILAW 1331 (HP)

RAM BAHADUR v. STATE OF H. P.

2009-12-22

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surinder Singh, J.(Oral)-Appellant has challenged his conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ passed by the learned Special Judge (Fast Tract Court), Kullu, in Sessions Trial No. 12 of 2007, whereby he was sentenced to undergo imprisonment for a period of ten years and to pay a fine of rupees one lac and in default of payment of fine further to undergo rigorous imprisonment for a period of one year for allegedly possessing 2.5 kg. of charas. 2. In brief, prosecution case is that PW4 ASI Khem Chand, Incharge of Police Post jari, Police Station Kullu, was heading a Police patrol party on 20.10.2006 and was present at the place known as ‘Sora Aage’. At about 4.30 p.m., appellant came from the side of village ‘Malanger’, with a plastic bag hung on his left shoulder. On seeing the Police party, he tried to runaway. Police got suspicious that he might be carrying some contraband with him, thus he was overpowered. His identity was asked. The place was secluded, no independent witness was present. 3. After complying with the provisions of Section 50 of the Act, in the presence of PW1 HHC Dina Nath and Constable Hira Singh, no incriminating article was found on his personal search. However, on checking his plastic bag, 2.5 kg. charas found wrapped in a polythene envelop, was recovered. Two samples of 25 grams each were separated therefrom and sealed with seal, producing the impression of letter ‘H’ of English alphabet. Remaining bulk was also sealed in the same bag with the same seal. Sample of seal was taken on a piece of cloth Ext. PC. NCB forms in triplicate were filled-in by the Police. The facsimile of seal was also affixed thereon. Seal after its use was handed over to HHC Dina Nath. The case property was taken into possession vide seizure memo Ext. PF. 4. Appellant was arrested and grounds of arrested were informed to him. Ruka Ext.PJ was sent for the registration of the case. Appellant as well as case property was produced before PW8 Inspector SHO Shrawan Kumar. He re-sealed the case property with seal impression ‘T’ There after, he deposited it with PW5 MHC Roop Singh. Its entry was made in the Malkhana Register. NCB forms, photocopy of the FIR and the seizure memo were also deposited. 5. Appellant as well as case property was produced before PW8 Inspector SHO Shrawan Kumar. He re-sealed the case property with seal impression ‘T’ There after, he deposited it with PW5 MHC Roop Singh. Its entry was made in the Malkhana Register. NCB forms, photocopy of the FIR and the seizure memo were also deposited. 5. On 22.10.2006 PW5 Roop Singh handed over one of the sample parcels sealed with seal impressions ‘H & T’ in this case along with NCB forms in triplicate and other concerned documents, to PW6 Constable Diwan Chand to deposit it in the C.F.S.L., Chandigarh, vide RC No. 293 of 2006, for analysis. On its deposit, he obtained the receipt which was handed over to MHC Roop Singh. 6. On analysis, Sample tested positive, the report is Ext. PX. Appellant was put on trial and at the end of the trial, he was convicted and sentenced as aforesaid, which has been challenged in this appeal. 7. The only point canvassed by the learned counsel for the appellant is that on the basis of report of analysis of the sample Ext. PX, the prosecution has miserably failed to prove that the contents recovered from the appellant was ‘charas’ falling within the definition contained in Section 2 (iii) of the Act, in view of the recent verdict of the Division Bench of this Court rendered in Sunil Kumar versus State (Cr. A. No. 267 of 2009) along with six other connected matters on 11th December, 2009. 8. In fact, Charas is one of the three forms of cannabis (hemp) as defined in Section 2 (iii) of the Act, which reads as follows:- “(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.” 9. According to the definition of “Charas”, as given in Section 2(iii)(a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 10. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 10. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ‘ganja’. 11. When ‘Charas’, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act. 12. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in Sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No.S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For Charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No.23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55. 13. Now examined on the basis of above definition of ‘charas’, we would like to reproduce the result of examination of sample parcel, in this case, as per the report Ext. PX given by the Director of Forensic Science Laboratory. It reads as under:- “RESULTS OF THE EXAMINATION Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below: Exhibit-1 is a sample of charas.” 14. Report Ext. PX is signed by Dr. R.S. Verma in his capacity as the Director of Forensic Science Laboratory. The similar type of report was under scrutiny of this Court in a bunch matter in Sunil Kumar versus State (supra). In Panne Lal’s case Cr. A No. 45 of 2008 connected with Sunil Kumar’s case Dr. Report Ext. PX is signed by Dr. R.S. Verma in his capacity as the Director of Forensic Science Laboratory. The similar type of report was under scrutiny of this Court in a bunch matter in Sunil Kumar versus State (supra). In Panne Lal’s case Cr. A No. 45 of 2008 connected with Sunil Kumar’s case Dr. R.S. Verma, the Director, who issued the instant report (Ext.PX) was examined as a witness of the prosecution and in another connected case, i.e., State versus Jeet Ram (Criminal Appeal No. 363 of 2008 in bunch matters), he was examined as a witness of the defense. 15. With reference to his statement and of one Sh. A.K. Wasuja, Chemical Examiner, examined in Criminal Appeal Karuna Shankar Puri versus State connected with Sunil Kumar’s case this Division Bench observed:- “From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal versus State and as DW-1 in appeal titled State versus Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW-1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri versus State, it appears that both the Experts are unaware of the term “Charas”, as defined and made an offence under the Act and that the tests were conducted by them to find if the stuff contained tetrahydrocannabinol and cystolithic hair. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW-9/D given in case titled Raj Kumar versus State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps uncertained quantity of Charas/ resin. We have noticed hereinabove that tetrahydrocannabinols are found not only in the Charas, which means separated resin of cannabis plant but also in ganja, as defined in Section 2(iii)(b) of the Act and even in the leaves, seeds and stems of cannabis plant. We have observed so, on the basis of authoritative literature. In The New Encyclopaedia Britannica, 15th Edition, tetrahydrocannabinol or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. We have observed so, on the basis of authoritative literature. In The New Encyclopaedia Britannica, 15th Edition, tetrahydrocannabinol or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, tetrahydrocannabinol will be found even in the leaves, stem, seeds and the flowering and fruiting tops of cannabis plant. But resin is Charas, when it is separated from the plant or its aforesaid parts. Presence of resin in the aforesaid parts does not make such parts Charas nor is the resin in such parts Charas, unless separated, in view of the definition in Section 2(iii)(a) of the Act.” 16. After detailed examination of the identical reports like Ext. PX in this case it was also observed:- “As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. According to Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of bhang it is 15 per cent, in the case of ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant.” 17. Against the above back-ground, it was held:- “In view of the above-stated position, we hold that Experts’ reports in none of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility of the stuff recovered from them being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.” 18. This case is also fairly and squarely covered by Sunil Kumar’s judgment and other connected matters (supra) and, in our considered opinion, the Chemical Report Ext. PX does not prove that stuff recovered was charas within the meaning of the Act. Accordingly, the conviction and sentence of the appellant passed by the learned trial Court is unsustainable and is therefore, set aside. Consequently, appeal is allowed. 19. Appellant being in Jail, serving sentence, awarded by the learned trial Court, is ordered to be released at once in case his custody is not required in any other case. Release warrant be prepared accordingly.