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Himachal Pradesh High Court · body

2010 DIGILAW 954 (HP)

Bajinder Singh v. State of Himachal Pradesh

2010-07-15

R.B.MISRA, V.K.SHARMA

body2010
JUDGMENT R.B. Misra, Judge (oral).- The present appeal has come up for consideration after leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to the impugned judgment dated 25.02.2009, passed by the learned Special Judge (Sessions Judge), Kinnaur Sessions Division at Rampur, convicting the accused namely Bajinder Singh, for the offense under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and verdict was given on 25.02.2009, whereby the accused-respondent was convicted and sentenced to undergo for rigorous imprisonment for 10 years and fine of Rs, 1,00,000/ - under Section 20 of NDPS Act and in default of payment of fine, the appellant shall further undergo simple imprisonment for one year. 2. In order to adjudicate the present appeal, it is necessary to deal the prosecution story. As per prosecution story, on 02.01.2007 at about 9.30 A.M., PW-7 Rajinder Kumar, ASI/SHO, Police Station, Ani, in connection with routine patrol duty, was present in the area of Chamba nullah. PW-4 Pushap Dev H.C., PW-6 Sunder Singh Constable and Bhup Singh Constable had been accompanying PW-7. At such time, the accused person was noticed on way from Shawad towards Chamba nullah and Nagan. The accused person had been carrying one bag of green colour in his hand. At the sight of the police, the accused person had felt scared and had tried to escape. PW-7, with the help of his men, had overpowered the accused person. The accused person was suspected in possession of contraband goods covered by the Act. PW-7 had deputed PW-6 to send for non-official witnesses in case some one was available in the nearby area. PW-6 had reported that no one was available in the nearby area, the accused person having been apprehended in secluded site of Chamba nullah. As such, PW-7 in the presence of police officials had given an option of search before the Magistrate or Gazetted Officer to the accused person vide consent memo Ext. PB. The accused person had consented for search before the police party headed by PW - 7 as per his endorsement under his signatures on consent memo Ext. PB. Thereafter PW-7 had offered himself for search by the accused person vide search memo Ext. PC. Nothing incriminating had been recovered from PW-7. PB. The accused person had consented for search before the police party headed by PW - 7 as per his endorsement under his signatures on consent memo Ext. PB. Thereafter PW-7 had offered himself for search by the accused person vide search memo Ext. PC. Nothing incriminating had been recovered from PW-7. In the presence of police officials and the accused persons, the search of the bag of the accused person had been carried out by PW-7, the bag was found containing two polythene packs each containing charas in the shape of billets. PW7 had weighed the charas and had found the same 1850 grams. PW-7 had drawn two samples of 25 grams each from the charas recovered from the accused person. Sample packets of charas and the rest of the charas along with green bag and polythene packs had been separately sealed in three packets with seal X had been taken into possession vide recovery memo Ext. PD. The accused person had been arrested after having apprised him of the grounds of arrest vide document Ext. PE. Requisite number of NCB form had been updated. Clear impression of seal X had been separately taken. Seal X had been handed over to PW-4 when done with. PW-7 had prepared report (Ruqua) Ext. PH and had routed the same to Police Station through PW-6 for registration of FIR. PW-7 had deposited the case property with the MHC. PW-7 had prepared special report, copy Ext. PA and had routed the same to SDPO, Ani on 02.01.2007. One sample packet of charas had been got examined from Director, Central Forensic Science Laboratory (CFSL), Chandigarh, who vide report Exhibit PJ had found the same containing charas. 3. After investigation, the prosecution submitted a chargesheet under Section 20 of NDPS Act and in order to prove its case prosecution examined ten witnesses, whereas, the accused-respondent through his statement under Section 313, had denied the prosecution case and in defence the accused has examined DW-l Uma Shankar, Driver of HRTC, PW-l Constable Bal Mukand, PW-2 ASI Om Parkash, PW-3 HC Tain Singh, PW-4 HC Pushap Dev, PW-5 ASI Lal Singh, PW-6 C. Sunder Singh, PW-7 ASI Rajinder Kumar, PW-8 SI Om Parkash, PW-9 HHC Nihal Chand and PW-10 HHC Roshan Lal. 4. PW-7 ASI Rajinder Kumar, Investigating Officer has supported the prosecution case. 4. PW-7 ASI Rajinder Kumar, Investigating Officer has supported the prosecution case. He has narrated that he conducted the search of the bag, carried by the accused, which contained two polythene packets in which the charas in shape of candles, was found. The recovered charas was weighted with the scale lying in the kit of the Investigating Officer and the charas was found 1.850 Kg and out of the recovered charas, two samples of 25 grams each were separated for chemical analysis. The samples were sealed with three seals of 'X'. The remaining charas was again put in the aforesaid two polythene packets and then put in to the same bag and sealed in a cloth parcel, with 9 seals of 'X' and specimen seal impression was also taken on separate white cloth piece and the seal after 'its use was handed over to Head Constable Pushap Dev. 5. PW-7 in his cross-examination has stated that he sent Constable Sunder Singh to call witnesses with the hope that some body may be available. During half an hour of our standing at Chamba nullah only one vehicle crossed through the road and no witnesses were available. PW-7 has further stated in his cross-examination that seal 'X' has been affixed on the parcel on the side from where the parcel had been hand stitched. The parcel shown to PW-7 does not have any seal to the side from where it is hand stitched and the parcel only contains seal on two sides, only. PW -7 has further stated in his cross-examination that he instructed the MHC to send the sample parcels of charas to CFSL Chandigarh, at the earliest. However, the sample parcels, of charas remained with MHC for the remaining six clays and he did not send them to CFSL, Chandigarh, during that period, due to shortage of staff. PW-7 has further stated that SHO, Police Station, Anni was suspended for planting charas of one person to the other person. This PW has further denied in cross-examination that unclaimed charas recovered by the police from the bus No.HP06-2825 was planted to the accused. 6. PW-7 has further stated that SHO, Police Station, Anni was suspended for planting charas of one person to the other person. This PW has further denied in cross-examination that unclaimed charas recovered by the police from the bus No.HP06-2825 was planted to the accused. 6. PW-4 Head Constable Pushap Dev while supporting the prosecution case, has stated that the during search two polythene packets, containing charas in the shape of sticks, were recovered from the bag and the same were weighed and found 1.850kg, out of which two samples of 25 grams each were separated and wrapped in polythene packet and sealed in two parcels. The bulk charas was put into the same polythene packet, parcel and sample were sealed with three seals bearing seal impression 'X' on each parcel and bulk charas parcel was sealed with 9 seals of seal impression 'X'. PW-4 has further stated that one parcel sealed with 9 seal impressions 'X' has been produced in the court and PW-4 has further stated in his cross-examination that there was no other bag with the accused when personal search of the accused was carried out on the spot after his arrest. 7. PW-6 Constable Sunder Singh while supporting prosecution case has stated that the accused was noticed coming from Shawad side towards Nagan with one bag in his hand. 8. Learned counsel for the convicted-appellant Mr. Anup Chitkara has made following submissions : (a) The case of prosecution is based on the statement of the Police officials, therefore, in absence of independent witnesses, their testimonies have to be seen with greater care and caution and version of officials are to be corroborated by material witnesses. (b) The substance, which has been tested by Laboratory vide report Exhibit P-J to be the charas, was in fact sample drawn from the bulk seized from the convict-appellant. (c) No criminal offense has been made out against appellant/convict. (d) The possibility of the alleged charas being only bhang i.e. the dried leaves of cannabis plant, the possession of which is no offense, cannot be ruled out and hence, no offense is made out under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. (c) No criminal offense has been made out against appellant/convict. (d) The possibility of the alleged charas being only bhang i.e. the dried leaves of cannabis plant, the possession of which is no offense, cannot be ruled out and hence, no offense is made out under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. (e) Adequate endeavour was not made by the prosecution to associate independent witnesses and only ten minutes effort to invite independent witnesses was not sufficient as such the prosecution case relied by police official/witnesses could not be fool proof. 9. It has been further submitted by Mr. Chitkara that stuff recovered as charas is not charas but was dried leaves of cannabis plant. In view of the decision of this Court in Panne Lal versus 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 offense In support of his submissions Mr. Chitkara 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 versus State (Cr. A No.267/2007) 2. Surinder Singh versus State (Cr.A No.311/2007) 3. Panne Lal versus State (Cr. A No.45/2008) 4. State versus 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 analyzed 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. Chemical tests and chromatographic analysis. indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analyzed 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 versus State (Cr.A No.45/2008), he was examined as a witness of the prosecution and in another, i.e. State versus 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 PW-11, by the trial Court, in the case giving rise to appeal titled Panne Lal versus 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 DW-1 before the trial Court, in another, i.e. State versus 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 offense We may observe that finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. 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 offense 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 (HP.), 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 versus 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 versus 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. C-1, comprising four sheets of some literature downloaded by him from the Internet. Ex. C-1 does not pertain to Charas but Marijuana or Marihuana, which means cannabis. When his attention was drawn to this fact, he admitted that Ex. C-1 pertained to Marijuana. 19. "Marijuana", as per Webster's 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 cannabin 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 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 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. 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. 21. 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. 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 Parikh's 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 25-40 per cent. 24. In Principles and Practice 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 Lyon's 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 versus State of Guajrat, 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 PW-1 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 para-aminon 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 hereinabove, it is made out from the reports, particularly report Ex. PW-9/ 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 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. 29. 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 in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. 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 percent 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." 10. 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." 10. In view of prosecution witnesses PW-4, PW-6 and PW-7, only one bag was being carried by the accused, when apprehended and search was made. However, Ex. P-F, which was witnessed by Sunder Singh, Bijender and MHC Pushp Dev, indicated that one bag of rexine, in which a diary, used cloths were kept was also recovered. Such recovery of another bag has not been proved by the prosecution. 11. In view of the testimony of PW-7 when two samples of 25 grams each were separated for chemical analysis and each sample was sealed with three seals of 'X' and remaining charas was again put in aforesaid polythene packets and put into the same bag, which was sealed in cloth parcel with 9 seals of 'X' then under what circumstances another bag of rexine was found at the time of search. 12. On analysis of prosecution witnesses and the material on record, we also notice that exhibit P-J indicates examination report of CFSL as below: "Various laboratory tests were carried out with the exhibits-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. On scrutiny of statement of prosecution witnesses and material on record, we find that prosecution has failed to bring home the guilt to the appellant-accused beyond reasonable doubts. 14. In the light of verdict given by this Court in Panne Lal versus State of H.P., 2010(2) Crimes 558 (H.P.), the possession of such recovered goods cannot be said to be contraband goods and possession of which is not an offense. Therefore, chemical report given in present case is doubtful. Relying upon the decision of Panne Lal Versus State of H.P, (supra), the benefit of doubt is given to the accused/appellant. 15. In our considered view the appellant/convict shall liable to be set free to his liberty forthwith, unless required in any other process of law.