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Himachal Pradesh High Court · body

2010 DIGILAW 654 (HP)

STATE OF HIMACHAL PRADESH v. HIRA SINGH

2010-04-01

DEV DARSHAN SUD, KULDIP SINGH

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JUDGMENT Kuldip Singh, J.(Oral)-The State has come in appeal against the judgment dated 9.3.1998 passed by the learned Sessions Judge, Shimla in Session Trial No. 35-S/7 of 1997 acquitting the respondent. 2. The facts, in brief are that PW-7 Sub Inspector Ram Lal, Police Station, Boileauganj alongwith other police officials was at place Yadgar, totu at about 8.00 P.M. on 2.9.1997. The respondent was found standing at that place, he tried to give slip to the police but was apprehended. The respondent was carrying a polythene bag. The Sub Inspector suspected that the polythene bag contained some offending substance, therefore, he told the respondent that he wanted to search his person and that in case he so desired the search of his person could be arranged in the presence of some Gazetted Police Officer or a Magistrate. The respondent expressed the desire to be searched in the presence of some Gazetted Officer, therefore, presence of PW-8 Rakesh Aggarwal, Assistant Superintendent of Police was arranged. On arrival of Assistant Superintendent of Police, the person of the respondent was searched and 690 grams of charas contained in the polythene bag was recovered. 3. The sealing and sampling was done on the spot, one of the two samples was sent to Government Laboratory Neemuch (M.P.). The report of the Chemical Examiner was obtained, who opined that the contents of sample were of ‘charas’. The respondent was challaned, he was charged under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’). The prosecution had examined eight witnesses. PW4 Rajiv Kumar, PW-6 Deep Ram are the alleged independent witnesses in whose presence the charas was recovered. PW-8 Rakesh Aggarwal, Assistant Superintendent of Police allegedly effected the search and recovered the offending stuff. PW-7 Ram Lal, Sub Inspector apprehended the accused. PW-5 Lekh Raj, Constable is also a witness to the search of the person of the respondent. The other witnesses are formal. The respondent has denied the prosecution case in his statement under Section 313 Cr.P.C. The respondent was acquitted by the learned Sessions Judge on 9.3.1998, hence the State has come in appeal. 4. We have heard the learned counsel for the parties and have also gone through the record. PW-4 Rajiv Kumar has not supported the prosecution case, he was cross-examined with the permission of the Court. 4. We have heard the learned counsel for the parties and have also gone through the record. PW-4 Rajiv Kumar has not supported the prosecution case, he was cross-examined with the permission of the Court. In cross-examination, he stated that nothing was recovered from the respondent and his signatures were obtained on some papers by the police. He has denied that in his presence the respondent was apprehended and his search was carried out by the senior most Police Officer present on the spot. 5. PW-6 Deep Ram is another alleged independent witness of the recovery. He has stated that on 2.9.1997 at about 8.00 or 8.30 p.m. he was present at Totu Chowk , a Head Constable met him and asked him to accompany him to a point near Yadgar. The police people were saying that they would search the person of the accused but he was saying that he would not get his person searched by the police officials unless some respectable person was present to witness the search. Thereafter, a Gazetted Officer of Police Department came to the spot, who got his person searched from the accused. Thereafter, person of accused was searched. The accused was carrying a polythene bag which contained some stuff in the shape of balls and fingers. The stuff was weighed and found to be 690 grams. Memo regarding search and recovery of charas was prepared which is Ex.PE, which was signed by him and another witness Rajiv Kumar. In cross-examination, he has admitted that once he was convicted for possessing liquor in excess of the prescribed limit and he was sentenced to pay fine of Rs. 300/-. There are several houses and shops near the place where the accused was apprehended by the police and his person was searched. The Gazetted Officer arrived at the scene within an hour or so. They remained on the spot upto 1.30 a.m. 6. PW-5 Lekh Raj has stated that Ram Lal, Sub Inspector met the accused on the spot. In the meanwhile witness Raj Kumar (Rajiv Kumar), Deep Ram and a Sardarji came there. The Sub Inspector told the accused that he wanted to search his person and that in case he he so desired, his search could be arranged in the presence of some Gazetted Officer or a Magistrate. In the meanwhile witness Raj Kumar (Rajiv Kumar), Deep Ram and a Sardarji came there. The Sub Inspector told the accused that he wanted to search his person and that in case he he so desired, his search could be arranged in the presence of some Gazetted Officer or a Magistrate. The accused asked that he wanted his search in the presence of a Magistrate or a Gazetted Officer. Then Assistant Superintendent of Police was called on the spot and person of the accused was searched, charas weighing 690 grams was recovered from the person of the accused. Samples and the rest of the charas were sealed, seal after use was given to Dharminder Pal. In cross-examination, he has stated that A.S.P. arrived at the spot within 15 minutes of the apprehension of the accused. A.S.P. did not write anything on the spot. They remained at the spot for about half an hour after the arrival of the A.S.P. and during that half an hour, certain papers were written. 7. PW-8 Rakesh Aggarwal, S.P.Vigilance, has stated that from November, 1996 to January, 1998 he remained posted as Assistant Superintendent of Police, Shimla. On 2.9.1997 around 8.00 p.m., Kishori Lal driver of Police Station Boileauganj came to his residence in a Gypsy and handed over to him a written intimation regarding the apprehension of a man who was suspected to be carrying some narcotic substance. He reached the spot and disclosed his identity. Two independent witnesses were also present. The accused was holding a polythene bag, containing charas in the shape of fingers weighing 690 grams, sampling and sealing were done on the spot. The seal was handed over to witness Rajiv Kumar. The case property was deposited with SHO, Police Station, Boileauganj. In cross-examination, he has stated that he reached the spot around 8.30. He remained on the spot for about 1 ½ hours, the police officials who were present on the spot also returned to the Police Station by the same vehicle in which he started back. 8. PW-7 Ram Lal, Sub Inspector, Police Station, Boileauganj has stated that on 2.9.1997 he was at Totu in connection with routine patrolling. Lekh Raj, Constable told him that accused Hira Singh was in the habit of dealing in contraband stuff. He (witness) immediately got the vehicle stopped, the accused tried to escape but was apprehended. 8. PW-7 Ram Lal, Sub Inspector, Police Station, Boileauganj has stated that on 2.9.1997 he was at Totu in connection with routine patrolling. Lekh Raj, Constable told him that accused Hira Singh was in the habit of dealing in contraband stuff. He (witness) immediately got the vehicle stopped, the accused tried to escape but was apprehended. The accused was carrying a polythene bag in one of his hand. He wanted to search his person. The accused refused to get his person searched from him and claimed that he would like to be searched in the presence of some Gazetted Police Officer. He called two independent witnesses Deep Ram and Rajiv Kumar. Rakesh Aggarwal, Assistant Superintendent of Police was called on the spot. Charas weighing 690 grams was recovered from polythene bag which the accused was carrying, which was found in the search conducted by A.S.P. Rakesh Aggarwal. The sampling and sealing was done and seal ‘A’ was used. In cross-examination, he has stated that house of the accused is at a distance of 20 – 25 yards from where he was apprehended. A.S.P. remained on the spot for about one hour. The police party also remained on the spot for one hour after the arrival of the A.S.P. 9. PW-4 Rajiv Kumar has not supported the prosecution version. There are material contradictions in the statements of PW-6 Deep Raj, PW-7 Ram lal, Sub Inspector and PW-8 Rakesh Aggarwal, A.S.P. PW-6 has stated that they remained on the spot upto 1.30 a.m. On the contrary, PW-7 Ram Lal, Sub Inspector and PW-8 Rakesh Aggarwal, have stated that they remained on the spot for about one hour. PW-8 has stated that he reached the spot around 8.30 p.m. In other words, according to PW-7 and PW-8 the police left the spot at about 10.00. In these circumstances, the presence of PW-6 Deep Ram on the spot is highly doubtful. 10. PW-7 Ram Lal, Sub Inspector has stated that accused refused to get his person searched from him and claimed that he would like to be searched in the presence of some Gazetted officer. The accused reiterated his plea before the independent witnesses for being searched in the presence of some Gazetted Officer. Thereafter, PW-8 Rakesh Aggarwal, A.S.P. was called. 10. PW-7 Ram Lal, Sub Inspector has stated that accused refused to get his person searched from him and claimed that he would like to be searched in the presence of some Gazetted officer. The accused reiterated his plea before the independent witnesses for being searched in the presence of some Gazetted Officer. Thereafter, PW-8 Rakesh Aggarwal, A.S.P. was called. PW-7 has not stated that he told the accused that he has a right to be searched by a Gazetted Officer or a Magistrate. How the accused volunteered to be searched in presence of Gazetted Officer when he was not told that he has a right to be searched in the presence of Gazetted Officer or a Magistrate that has not been explained. In these circumstances, the accused was deprived his right to be searched in the presence of Gazetted Officer or Magistrate. PW-5 Lekh Raj, Constable has stated that Sub Inspector told the accused that he wanted to search his person and that in case he so desired, his search could be arranged in the presence of some Gazetted officer or a Magistrate. But PW-5 is stating something which even PW-7 Ram Lal has not stated. PW-5 Lekh Raj, Constable has stated that seal after use was given to Dharminder Pal. PW-8 Rakesh Aggarwal has stated that seal after use was handed over to Rajiv Kumar. This creates suspicion about the presence of PW-5 and PW-8 on the spot. The seal has not been produced in the Court. There are material contradictions regarding the recovery of charas from the person of accused. 11. The Chemical Examiner report Ex.PL is also not of any help to the prosecution. The Chemical Examiner report Ex.PL is as follows : “On opening of the packet one four square cigarette packet is found. Inside the packet the sample was found kept and in the form of crude cylindrical pieces and dark greenish brown colour having the charactertic odour of charas. It gives pointer tests for THC. (Tetra Hydro Cannabinol.) The sample is used up in tests and empty packets etc. is being returned herewith under lab sealed cover. The sample is found by qualitative analysis to be Charas.” 12. In Sunil v. State of H.P. Latest HLJ 2010(HP) 207 and others a Division bench has decided six appeals. It gives pointer tests for THC. (Tetra Hydro Cannabinol.) The sample is used up in tests and empty packets etc. is being returned herewith under lab sealed cover. The sample is found by qualitative analysis to be Charas.” 12. In Sunil v. State of H.P. Latest HLJ 2010(HP) 207 and others a Division bench has decided six appeals. In four appeals the reports given by the Director Forensic Science Laboratory were as follows:- “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”. 13. In Cr. Appeal No.314 of 2008, Raj Kumar v. State the report of the Chemical Examiner was as follows: “Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/1 & P/2 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in both the samples. The microscopic examination indicated the presence of cystolithic hair in both the samples. Charas is a Resinous mass and resin is an ingredient of Charas which on testing was found present. The quantity of Resin in cannabis plant/Charas sample varies from one area to the other area. The result thus obtained is given below. For both the samples. The exhibits P/1 & P/2 are the samples of CHARAS.” 14. In Cr. Appeal No.500 of 2008, Karuna Shankar Puri vs. State, the Chemical Examiner report was as follows:- “Various scientific tests such identification, chemical and chromatographic were carried out in the Laboratory with the exhibit P/1 reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol inn the sample. The microscopic examination indicated the presence of cystolithic hair in the sample. The result thus obtained is given below:- The exhibit marked as P/1 is a sample of CHARAS.” 13. The Division Bench in Sunil (supra) has held 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. The Division Bench has observed so, on the basis of authoritative literature. 14. The Division Bench in Sunil (supra) has held 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. The Division Bench has observed so, on the basis of authoritative literature. 14. In para-29 of the judgment the Division Bench has held as follows:- “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.” The Division Bench in para-30 has held as follows:- “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. 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. 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”. The Division Bench ultimately in para-31 has held as follows:- “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 offence, cannot be ruled out”. 15. Chemical Examiner report Ex.PL is not better then reports noticed by Division Bench in Sunil (supra). Therefore, on the basis of report Ex.PL and in view of Sunil (supra) it cannot be said that contraband recovered from the accused was charas. Thus, taken from any angle, the learned Sessions Judge has rightly appreciated the material on record in acquitting the respondent and the learned Addl. Advocate General has failed to make out a case that the findings of acquittal recorded by the learned Sessions Judge, do not emerge from the evidence on record. It is settled proposition in law that merely because other view is possible, the appellate court shall not convert the acquittal into conviction unless the judgment of acquittal is perverse or inference drawn from the evidence is not at all possible, but this is not the situation in the present case. There is no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.