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Himachal Pradesh High Court · body

2012 DIGILAW 20 (HP)

Lekh Raj v. State Of H. P.

2012-01-05

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The appellant was convicted by the learned trial Court for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short the Act for allegedly keeping in possession 22.30% charas in the recovered stuff of 1.6 kilograms and sentenced to undergo imprisonment for a period of four years and to pay a fine of Rs. 25,000/- with the default clause. The learned trial Court also gave him the benefit u/s 428 of the Code of Criminal Procedure for the period he remained in custody during the investigation and trial of the case. Hence the present appeal by the appellant hereinafter referred to as the accused. 2. In nutshell, prosecution story is that on 23.12.2007 PW6 Inspector Om Parkash accompanied by PW1 S.I. Rajinder Kumar, PW2 HHC Kashmi Ram PW3 HC Pune Ram and Satish Kumar were present at Jangli pul in connection with patrolling duty. At about 12.30 p.m. accused came from the side of Kandugad holding a plastic bag in his right hand. On seeing the police party, he is alleged to have got scared and tried to escape. Police entertained suspicion thus he was overpowered. (ii) It was a secluded and an isolated place, no independent witness was available, as such Inspector Om Parkash aforesaid joined PW1 Rajinder Kumar and PW3 HC Pune Ram as witnesses and informed the accused to exercise option u/s 50 of the Act as he was suspecting some contraband in his possession. (iii) The accused is stated to have opted to be searched by the police party present there. Thereafter PW6 Inspector Om Parkash rendered himself to be searched by the accused but no incriminating article was found as such memo to this effect was prepared. Thereafter Inspector aforesaid checked the polythene bag to which accused was holding in his hand. It contained 1.6 kilograms of contraband. (iv) Two samples from the recovered stuff weighing 25 grams each were separated and sealed with seal impression H. The remaining stuff was put back in the same polythene envelop/plastic bag and also sealed by making a parcel with the same seal. (v) NCB forms in triplicate were filled in one of which is Ext. PW6/A. Facsimile of the seal H was taken on each of them and seal impression was also taken on a piece of cloth Ext. (v) NCB forms in triplicate were filled in one of which is Ext. PW6/A. Facsimile of the seal H was taken on each of them and seal impression was also taken on a piece of cloth Ext. PW1/C and the case property was taken into possession vide memo Ext. PW1/D. (vi) Ruka Ext. PW2/A was sent to the police station for registration of the FIR. (vii) Site plan Ext. PW6/B of the place of recovery was also prepared. (viii) Accused was arrested and grounds of arrest were informed to him in writing Ext. PW1/E. (ix) On reaching the Police Station, he deposited the case property with PW4 MHC Rajinder Singh. He made its entry in the Malkhana Register. 3. Special report Ext. PW3/A was sent to the Additional S.P. within the statutory period. 4. On 25.12.2007 a sample parcel was sent for its examination to FSL Junja vide RC Ext. PW4/B through PW5 constable Sunder Singh. On its deposit on 26.12.2007 in the laboratory, he obtained receipt and handed it over to MHC on his return. 5. The sample parcel was opined to be that of charas. 6. It is also the case of the prosecution that thereafter PW8 MHC Pushp Dev officiating MHC on 1.3.2010 sent the bulk and the second sample parcel to FSL Junga through constable Puran Chand (PW9) vide RC Ext. PW8/A for analysis. These were also tested positive for charas. 7. After completing investigation, the challan was presented in the court against the accused for his trial. He was accordingly chargesheeted to which he pleaded not guilty and claimed trial. 8. To prove its case prosecution examined as many as ten witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure. Though in his statement he did not raise any specific defence rather he pleaded innocence but the trend of the cross examination shows that he tried to put that the alleged contraband was recovered from an Alto Car whereby three local persons were traveling, ultimately the case was foisted upon him to save them. 9. The leaned trial Court jettisoned the defence taken but while relying upon the official witnesses, convicted and sentenced the accused as aforesaid. 10. 9. The leaned trial Court jettisoned the defence taken but while relying upon the official witnesses, convicted and sentenced the accused as aforesaid. 10. Shri P.P. Chauhan, Advocate duly assisted by Shri D.R. Verma, Advocate for the accused took me through the evidence on record and vehemently argued that; (i) the prosecution did not include the independent witnesses from the nearby village, (ii) there has been discrepancy with respect to the time of the alleged recovery; (iii) it is also pointed out that there is also material contradictions in the statements of official witnesses. Lastly, the case property was alleged to have deposited in the malkhana but the entry of the bulk did not find mentioned in malkhana register (Ext. PW4/A) Therefore, in the above circumstances, accused deserves to be acquitted. 11. Shri P.M. Negi, learned Deputy Advocate General countered the above arguments on the ground that the aforesaid discrepancies as highlighted are of a very minor nature which are bound to be there due to time gap but these are not sufficient to reject the prosecution case at all. He further submitted that there may be a case of negligence on the part of the MHC who was examined to prove the entry of the case property in the malkhana but it appears that half cooked document was produced during the trial and the learned Prosecutor appears to be not vigilant. 12. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously gone through the evidence on record. 13. The recovery in the instant case is from an open and secluded place. There is no requirement of law to include independent witnesses. The facts are to be appreciated in the light of the statements of official witnesses if inspire confidence. Therefore, the prosecution case cannot be rejected on this ground. Further the contradiction with respect to the time of recovery is also not fatal. Though PW2 HHC Kashmi Ram stated that the accused was apprehended around 8.30 a.m. whereas other witnesses stated that he was apprehended at 12.30 p.m. at Janglipul is also ignorable owing to the time gap between the recovery and the date of the recording statements of the witnesses in the month of June, 2011 after about four years. PW2 aforesaid also clarified in his cross examination that the time of the alleged recovery was 12.30 p.m. 14. PW2 aforesaid also clarified in his cross examination that the time of the alleged recovery was 12.30 p.m. 14. Further in cross examination I.O Om Parkash aforesaid stated that on seeing the accused, they had taken the cover of the boulder whereas other witnesses did not say so. The ruka as well as police challan also does not refer to it. This fact appeared only in the cross examination of the witnesses which is also ignorable as not material. Also the contradiction with respect to the colour of the envelop occuring in the statement of PW1 SI Rajinder Kumar, PW2 HHC Kashmi Ram and PW3 H.C. Pune Ram get vanished because the case property stood identified during the trial of the case and this fact has not been challenged at all in the cross-examination. 15. Now what is important in this case is that PW4 MHC Rajinder Kumar stated about having deposited the case property in the malkhana and its entry having been made in the relevant register, the extract of which is Ext. PW4/A. Surprisingly, there is only the entry of two sample parcels out of which one was sent for the examination to Forensic Science Laboratory whereas at Sr. No. 1 there was an entry of one sample parcel, was struck-off, but the description of the bulk parcel does not find mentioned therein. If it was half-cooked document as submitted by the learned Deputy Advocate General, produced by the MHC concerned, I failed to understand why the learned Public Prosecutor remained dormant and did not point out this fact at that stage. Further, there is no proof of sending the second parcel having been drawn from the malkhana for sending it to the examination, as this fact does not find mentioned in Ext. PW4/A. The sample which was sent through Constable Sunder Singh on 26.12.2007 was stated to have been examined in the Laboratory. The date of examination is 01/0/08 which makes no sense. Be that as it may, the result of the examination is Ext. PA it is reproduced verbatim as under:- Result of analysis. Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/1 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of cystholithic hair in the sample. PA it is reproduced verbatim as under:- Result of analysis. Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/1 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of cystholithic hair in the sample. Charas is a resinous mass and resin is an ingredient of charas which on testing was found present. Resin is found to be 22.30% W/W. And the quantity of resin in cannabis plant/Charas sample varies from one area to the other area. The result thus obtained is given below. In the opinion of the undersigned based upon the tests performed above for the samples is that:- The entire mass of exhibit P/1 is a sample of charas. 16. The similar report was under scrutiny before the Division Bench of this Court in Sunil Kumar versus State Latest HLJ 2010 (HP) 207 of which I was also one of the Member. The Division Bench took cognizance of a report one of which was similar to the present one and on considering the definition of charas under the Act it was held to be contrary to the statutory definition. 17. 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. 18. 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. 19. 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. 20. 19. 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. 20. 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. 21. Thus being in possession of cannabis (hemp) is an offence, punishable u/s 20 of the Act. Punishment also varies according to the quantity possessed, as notified in the Schedule. 22. From the report referred to hereinabove, it is clear that the stuff was opined to be charas on account of the presence of cannabinols including tetrahydrocannabinol and cystholithic hair. 23. The Chemical examiner did not bother to take note of the definition about the charas given in the Statute rather he tried to clarify in his examination result that the quantity of resin in cannabis plant/ charas varies from one area to other area without specifying that the resin was of the cannabis plant. 24. As per definition of charas reproduced herein above, resin is not an ingredient of charas but charas means the whole resin in whatever form, whether crude or purified of cannabis plant. In Sunil Kumars case (supra) the Court took note of the statement of the expert recorded before the learned trial Court as well as in the High Court during the pendency of the appeal and examined the similar reports in the light of the definition given in the Act and came to the conclusion that the report does not conform to the statutory definition of charas. 25. The report in hand also suffers from the same vice. Thus, sample so analyzed by the Laboratory does not conform to the definition of charas. 26. In so far as the bulk and the second sample is concerned there appears to be some improvement in the examination result but it cannot be taken into consideration for the reason that it has not been explained in which case and from where this bulk and the sample were brought and taken to the Laboratory. It was neither shown to have been deposited in the malkhana register Ext. PW4/A nor drawn for its analysis. It was neither shown to have been deposited in the malkhana register Ext. PW4/A nor drawn for its analysis. The weight of the bulk and sample also differs considerably but for the seal impressions. Therefore, the sample report Ext. PW10A could also not be connected with the recovery alleged to have been effected from the accused. 27. For reasons aforesaid, in my considered opinion, prosecution failed to prove the case against the accused beyond a reasonable doubt. As such the conviction and sentence passed by the learned trial Court is set aside. Accordingly the appeal is allowed. 28. The accused is undergoing sentence, he be released forthwith if not required in any other case. Registry to issue release warrant to the Superintendent Jail concerned in conformity with this judgment. 29. Send down the record forthwith.