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Himachal Pradesh High Court · body

2010 DIGILAW 1040 (HP)

State Of H. P. v. Dile Ram

2010-08-13

R.B.MISRA, V.K.SHARMA

body2010
JUDGMENT : R.B. Misra, J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 13.11.1997, passed by Learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No. 15 of 1997, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused. 2. The prosecution case is that on 5.2.1997, at about 12.30 A.M., PW.11 Shyam Lal, Head Constable, Incharge Police Post, Balichowki, in connection with routine patrol duty, was present at Zero point at Balichowki on Banjar Aut, State Highway. PW.10 Hem Chand Constable had been accompanying PW.11 at the time of patrol duty. PW.11 Shyam Lal, Head Constable had associated PW.1 Sat Pal, Parkash Chand son of Balbir and Parkash Chand son of Amar Singh as non official witnesses in the police party. It had been alleged that at about 12.30 A.M., on 5.2.1997, accused person was noticed coming towards Zero point from the side of Banjar. The accused person was in possession of one bag of red colour. At the sight of the police, accused person had felt scared and had tried to escape. This had aroused the suspicion of the police. PW.11 had over powered the accused person. PW.11 had entertained suspicion against the accused person. The accused person was suspected to be carrying contraband. As such, PW.11 had given option of search to the accused person before the Magistrate or a Gazetted police officer vide document Ex. PA. The accused person, vide document Ex. PB, had consented for search before the local police party headed by PW.11 Shyam Lal, Head Constable. In the presence of the accused and non official witnesses, the police searched the bag Ex.P2 of the accused person. The bag was found containing charas which on weighment was found to be of 2kg. The police had taken two samples of 25 grams each from the charas recovered from the accused person. The samples packets of the charas and rest of the charas weighing 1950 grams had been separately sealed in three packets with seal 'H' and had been taken into possession vide recovery memo Ex.PC. The accused person had been arrested having apprised him of the grounds of arrest vide document Ex. PE. Ex. The samples packets of the charas and rest of the charas weighing 1950 grams had been separately sealed in three packets with seal 'H' and had been taken into possession vide recovery memo Ex.PC. The accused person had been arrested having apprised him of the grounds of arrest vide document Ex. PE. Ex. PD was specimen impression of seal 'H' used in sealing the case property. PW.11 had prepared report Ex.PW.8/A and had sent the same to the police station Aut for registration of the FIR. FIR Ex. PW.8/B had been registered against the accused person. PW.11 had deposited the sealed packets duly sealed with seal 'H' at the police station. One sample packet of charas had been got examined from Chemical Examiner, who vide report Ex.PA, had found the packet examined by him containing charas. Under the Act, the accused person could not have been in possession of charas weighing 2kg. 3. After investigation, respondent-accused was arrested and charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence. 4. We have gone through the contents of the prosecution witnesses and have also gone through the material on record. Mr. Rajinder Dogra, learned Additional Advocate General, has submitted that independent witness, namely, Satpal (PW.1), has supported the prosecution case, and the police officials in discharge of their duty, in a natural course, have searched the accused and have recovered 'charas' of 2kg from his possession and the same was sent for chemical examination, where it was found to be 'charas' being carried by the accused, as such, in reference to the prosecution witnesses, the case of the prosecution is treated to be reliable. 5. On the other hand, It has been submitted on behalf of Mr. O.P. Sharma, Senior Advocate, that though an independent witness, namely, Satpal (PW.1) has been examined by the prosecution, yet there are inconsistencies and contradictions in the testimonies of the prosecution witnesses, as such, the prosecution case cannot be said to be reliable. 5. On the other hand, It has been submitted on behalf of Mr. O.P. Sharma, Senior Advocate, that though an independent witness, namely, Satpal (PW.1) has been examined by the prosecution, yet there are inconsistencies and contradictions in the testimonies of the prosecution witnesses, as such, the prosecution case cannot be said to be reliable. Learned counsel for the respondent-accused has further submitted that the possibility of the alleged charas being only bhang i.e. the dried leaves of cannabis plant, the possession of which is no offence, cannot be ruled out and hence, no offence is made out under Section 20 of the 'NDPS Act'. 6. In view of the aforesaid analysis, Mr. O.P. Sharma, Senior Advocate has submitted that stuff recovered as 'charas' but was dried leaves of cannabis plant. In view of the decision of this Court in Panne Lal v. State of H.P., 2010 (2) Crimes 558 (H.P.), the possession of such recovered good cannot be said to be contraband good and possession of which is not an offence. In support of his submissions, Mr. O.P. Sharma has referred some paragraphs of the above said judgment. For convenience, same are given as below: "9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh: 1. Sunil v. State (Cr.A No. 267/2007) 2. Surinder Singh v. State (Cr.A No. 311/2007) 3. Panne Lal v. State (Cr.A No. 45/2008) 4. State v. Jeet Ram (Cr.A No. 363/2008) 10. In all the aforesaid cases, reports given by the above said of the Forensic Science Laboratory are similar, rather verbatim the same. They read as follows: 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. They read as follows: 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. Shri R.S. Verma, who signed these reports, as Director of the said Forensic Science Laboratory, was examined as a witness, in two cases. In one case, i.e. Panne Lal v. State (Cr.A No. 45/2008), he was examined as a witness of the prosecution and in another, i.e. State v. Jeet Ram (Cr.A No. 363/2008), he was examined as a witness of the defence. 15. Dr. R.S. Verma, who was examined as PW11, by the trial Court, in the case giving rise to appeal titled Panne Lal v. State (Cr.A No. 45/2008), admitted that Charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with Charas and that resin containing tetrahydrocannabinol is Charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify Charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyse the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin. 16. While appearing as DW1 before the trial Court, in another, i.e. State v. Jeet Ram (Cr.A No. 363/2008), he (Dr. R.S. Verma) that it is tetrahydrocannabinol which is the active agent in the resin and that it is the presence of tetrahydrocannabinol, which shows that the sample stuff is a cannabis product. His saying that presence of tetrahydrocannabinol that the stuff is cannabis product clearly suggests that the test conducted by was to find out if the stuff was a product of cannabis and not the specific product,defined as Charas in Section 2(iii)(a) of the Act. Cannabis are. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis (hemp), Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant, of is not an offence. Cannabis are. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis (hemp), Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant, of is not an offence. We may observe that finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. He stated that there was resin present in the sample, but he did not mention its percentage in his report, as the same was not required to be mentioned. His statement that resin was present in the sample indicates that the entire stuff was not resin. Further, his statement that the presence of indicates that the stuff is cannabis product, shows that tetrahydrocannabinol is to be present not only in resin/Charas but also in other forms of cannabis hemp), i.e. ganja and mixture, as defined in Sections 2(iii)(b) and 2(iii)(c) of the, As a matter of fact, tetrahydrocannabinol is present not only in the three forms of cannabis (hemp), defined in Section 2(iii) of the Act, but also in its, stem and even the seeds, as we would be indicating in the later part of this and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, is the fabric of the cannabis plant, do not mean that the analysed stuff is, means separated resin, per Section 2(iii)(a) of the Act, and not any other product of cannabis. 17. In the remaining two cases, reports are given by Shri A.K., of State Forensic Science Laboratory, Junga (H.P.), who was examined as a Court witness by one of us (Surjit Singh, J) sitting in single. In one of his reports, Ex. PX, in case titled Karuna Shankar Puri v. State (Cr. A No. 500/2008), he has stated that Charas is a mass and resin is an ingredient of Charas, which on testing was found present. Mention in the result of analysis suggests that the witness is not even of the definition of Charas. Resin is not an ingredient of Charas but it is the separated resin alone which is Charas, per definition given in Section 2(iii)(a) of the Act. 18. Mention in the result of analysis suggests that the witness is not even of the definition of Charas. Resin is not an ingredient of Charas but it is the separated resin alone which is Charas, per definition given in Section 2(iii)(a) of the Act. 18. Chemical Examiner, Shri A.K. Wasuja, when examined as a Court witness, by this Court, in Criminal Appeal No. 500 of 2008, titled as Karuna Shankar Puri v. State, stated that he did not agree with the definition of "Charas", as given in Section 2(iii)(a) of the Act and that as a matter of fact "Charas" was composition of about 400 substances. In of this claim, he relied upon Ex. C1, comprising four sheets of some literature downloaded by him from the Internet. Ex. C1 does not pertain to Charas but Marijuana or Marihuana, which means cannabis. When his attention was drawn to this fact, he admitted that Ex. C1 pertained to Marijuana. 19. "Marijuana", as per Websters Third New International Dictionary, Volume 11, means the dried leaves and flowering tops of the pistillate hemp plants that are the source of the drug cannabis and are sometimes smoked in cigarettes with consequent effect of the drug on the higher nerve centres to produce peculiar psychic disturbances and other words for "Marijuana", as per the aforesaid Dictionary are bhang, ganja and hashish. That means "Marijuana" includes not only Charas, ganja and mixture, as defined in clauses (a), (b) & (c) of Section 2(iii) of the Act, respectively, but also dried leaves and other parts of cannabis plant. 20. From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW11 in the appeal titled Panne Lal v. State and as DW1 in appeal titled State v. Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri v. State, it appears that both the Experts are unaware of the term "Charas", as defined and made an under the Act and that the tests were conducted by them to find if the stuff 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. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW9/D given in case titled Raj Kumar v. State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps un-certained quantity of Charas/resin. 21. We have noticed herein above 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. 22. In The New Encyclopaedia Britannica, 15th Edition, or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). 23. In Parikhs Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Sixth Edition, it is mentioned at Page 10.54, in answer to Question No. 10.21 that tetrahydrocannabinol THC is active principal and it is present in bhang to the extent of 15 per cent, in ganja to the extent of 25 per cent and in Charas to the extent of 2540 per cent. 24. In Principles and Practise of Forensic Medicine, First Edition, by Dr. Umadethan, it is mentioned at Page 486 that principal psycho active substance in cannabis (Marijuana, Marihuana) is delta 9 tetrahydrocannabinol and besides this there are cannabinol, cannabidiol, cannabinoleic acid and 400 other cannabinoids. 25. Cannabis, according to Lyons Medical Jurisprudence in India, Tenth Edition (Page 747), includes bhang, which means dried leaves, ganja, flowering tops, Charas, the resin which exudes from the leaves and branches, which is often adulterated and Majun, a sweetmeat prepared with bhang. 26. 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. 27. 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. 27. Learned Advocate General, who appeared for the State, submitted that a similar question was raised before a Division Bench of Gujarat High Court, in Dhanpalsingh Barunsingh Thakur and others v. State of Gujarat, 1995 Cri. L.J. 3751, and the learned Judges, relying upon the report of the Chemical Examiner, held that the entire sample stuff was Charas. A reading of the judgment shows that the Expert, who appeared as PW1 based his opinion not only on his own tests but also the report of Botanical Expert. The substance was found to contain cannabis species, as it gave positive result, when subjected to paraaminon phenol test and thin layer chromatography test. Contention raised in that case was that the Expert had not given the opinion that the substance was resin obtained from cannabis plant or a concentrated preparation and resin known as hashish oil or liquid hashish. No doubt, the Expert in that case did not specifically say that the sample stuff was resin of cannabis plant but he conducted two tests, i.e. paraaminon phenol test and thin layer chromatography test and came to the conclusion that the sample was Charas, which meant resin. 28. In the present case, as noticed herein above, it is made out from the reports, particularly report Ex. PW9/D as also the testimony of the two Experts, namely Dr. R.S. Verma and Shri A.K. Wasuja, that the entire stuff was not resin and that the tests, which they conducted, were meant to ascertain whether the stuff was cannabis (Marijuana) and not for Charas. Therefore, the judgment of the Gujarat High Court, referred to above, does not help in determining the question we are dealing with. 29. As noticed herein above, 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. 29. As noticed herein above, 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 in the stuff. As noticed herein above, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. According to Parikhs 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. 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 offense, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offense, 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. 31. In view of the abovestated 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 offense, cannot be ruled out." 7. 31. In view of the abovestated 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 offense, cannot be ruled out." 7. On analysis of the prosecution witnesses and material on record, we also notice that report of the Government Opium & Alkaloid Works, Neemuch (M.P.) Ex.PX, indicates as below: "On opening the PVC inner packet, one big sized match box is found (brand Wimco homelites) containing sample in the form of cylindrical rods wrapped in a plastic sheet in the form of dark brown colour having the characteristic odour of charas & gives the three lists for T.H.C. (Telrahydro Cannabinol). The sample is used up in lists & empty packet etc. is being returned herewith under bb sealed cover. The results thus obtained have been analysed as given below: The sample is found by qualitative analysis to be charas." 8. On close scrutiny of the prosecution witnesses, we find that PW.1 has suggested that the recovery and apprehension of the accused person had not been made at Zero point, Bali Chowki, was at some distance from the main market. It has also been stated by PW.1 that the police party had offered itself for search and search memo stood prepared and it was attested by the witnesses. There was no search memo relating to search of the police party by any one available on record. The prosecution has not examined Prakash son of Amar Singh, who was from Bali Chowki, and was said to be present at the time of recovery, for the reason best known to the prosecution he was given up as unnecessary. Whereas, Prakash Chand was also stated to have arranged scale and weights and such an evidence of Prakash Chand was of considerable means. Two witnesses namely PW.1 Satpal and Prakash Chand belonged to the area, which was far away. Close scrutiny of the testimony of PW.1 reveals that the police relieved him after sometime of the recovery of 'charas'. Whereas, PW.11 Shyam Lal, Head Constable, had stated that he had relieved PW.1 Satpal and other two non official witnesses at 4.00 A.M., on 5.2.1997. Close scrutiny of the testimony of PW.1 reveals that the police relieved him after sometime of the recovery of 'charas'. Whereas, PW.11 Shyam Lal, Head Constable, had stated that he had relieved PW.1 Satpal and other two non official witnesses at 4.00 A.M., on 5.2.1997. Apparently, non official witnesses would not have been present with the police for 6/7 hours from 9.30 P.M. on 4.2.1997 till 4.00 A.M., on 5.2.1997. Such aspect had created considerable doubt in the prosecution case. As per testimony of PW.11, there was no provision of light at the point of recovery, as such, the documents were prepared with the help of torch light. The police post was at a distance of 150 meters from zero point and PW.11 has recorded the statement of witnesses Sat Pal and Prakash Chand, who weighed the charas' from 2.30 A.M. to 7.30 A.M. 9. On scrutiny of the statement of prosecution witnesses and material on record, we find that prosecution has failed to bring home the guilt to the respondent-accused beyond reasonable doubts. 10. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Additional Sessions Judge has carefully analysed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 11. The bail bonds furnished by the accused/respondents are hereby discharged.