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2012 DIGILAW 368 (HP)

Manohar Singh v. State Of Himachal Pradesh

2012-07-03

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The challenge, in this appeal is made by the appellant, hereinafter referred to as 'the accused' against his conviction and sentence passed by the learned trial Court in NDPS Case No. 4 of 2006 decided on 24.3.2011 whereby he has been sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs. 50,000/- and in default of payment of fine to further undergo imprisonment for a period 6 months for allegedly keeping in his possession 32.87% WW resin of cannabis which is 329.4 grams in the recovered stuff of one kilogram. Heard and gone through the evidence on record. 2. Precisely, the case of the prosecution is that on 11.11.2005 there was a 'lavi fair'. Around 3.15 p.m., police party headed by PW10 Inspector/ SHO Dayasagar was on patrolling in their official vehicle. When they reached near the place known as 'Deodhank', they spotted the accused going towards village Bial with a bag in his hand. On seeing police party, he tried to escape, getting suspicious, he was intercepted and his identity was asked by PW Inspector Dayasagar aforesaid to which he disclosed. He was from Riwari District, Haryana State. 3. PW10 Inspector apprised the accused orally as well as in writing Ext. PW2/A of his right to be searched either by the police party present at the spot or before a Gazetted officer or a Magistrate. He opted to be searched before the police party present there. On the personal search of the accused, his personal effects were recovered and a memo to this effect was prepared but on the search of his bag Ext. P1 a Chadar/Loi was found in which one kilogram charas like stuff in the shape of sticks and boils was recovered. From the recovered stuff, two samples of 25 grams each were separated and sealed with seal impression 'A' and the remaining charas was put into the same polythene packet and then wrapped in the chadar/ loi and put into the same bag. Thereafter it was sealed with the same seal, facsimile of which was taken on the NCB forms, prepared on the spot, one of which is Ext. PW4/C. The case property was taken into possession vide seizure memo Ext. PW2/C in the presence of official witnesses. The seal impression was also taken on a piece of cloth Ext. PW10/A. 4. Thereafter it was sealed with the same seal, facsimile of which was taken on the NCB forms, prepared on the spot, one of which is Ext. PW4/C. The case property was taken into possession vide seizure memo Ext. PW2/C in the presence of official witnesses. The seal impression was also taken on a piece of cloth Ext. PW10/A. 4. The case property was deposited with PW4 MHC Amar Singh along with specimen impression and NCB forms to keep it in the malkhana. Thereafter on 5.12.2005 vide RC No. 86/2005 (Ext. PW4/A) one of the sample parcels was sent along with NCB forms and sample of seal through Constable PW6 Jiwa Nand for its examination to CTL Kandaghat. The abstract of malkhana Register is Ext. PW4/E. 5. The sample parcel was deposited in the Laboratory by PW6 Constable Jiwa Nand aforesaid and on the same day, after obtaining its receipt, it was handed over to the MHC aforesaid. 6. On examining the sample parcel, chemical examiner issued the report of analysis which is on the reverse of Ext. PW4/C. 7. After completing investigation, the challan was presented in the Court against the accused for his trial. 8. Accused was accordingly charge sheeted for the aforesaid offence to which he pleaded not guilty and claimed trial. 9. The prosecution to prove its case examined its witnesses and closed its evidence on 7.10.2009. The accused was also examined u/s 313 of the Code of Criminal Procedure. No evidence in defence was led and the case was listed for arguments. 10. Interestingly, thereafter on 23.2.2010, an application u/s 311 of the Code of Criminal Procedure was moved by the learned Public Prosecutor seeking analysis of the remaining part of the recovered stuff as only one sample drawn out of the total was sent for analysis and remaining quantity was required to be examined by the analyst for the just decision of the case. There was no resistance to this application, therefore, it was allowed. 11. The remaining part of the stuff was ordered to be sent for chemical analysis to the State Forensic Science Laboratory. The report Ext. PX thereof was received. Consequently supplementary challan was presented in the Court. Thereafter, prosecution examined four witnesses, namely, PW11 MHC. Lal Chand who had handed over the parcel to PW12 Constable Diwan Chand, who further deposited it in FSL Junga. The report Ext. PX thereof was received. Consequently supplementary challan was presented in the Court. Thereafter, prosecution examined four witnesses, namely, PW11 MHC. Lal Chand who had handed over the parcel to PW12 Constable Diwan Chand, who further deposited it in FSL Junga. PW13 Inspector Vidya Chand prepared the supplementary challan and PW14 Nanak Chand had collected the report of analysis. 12. The supplementary statement of accused u/s 313 of the Code of Criminal Procedure was also recorded. He denied the circumstances which were found attendant upon him and chose not to lead any evidence in defence. 13. At the end of the trial, the learned trial Court believed the evidence of prosecution and also found that the latest report of the analyst stood connected with the alleged recovery as such convicted and sentenced the accused as aforesaid. Hence the present appeal. 14. Now there are two reports of analysts on record. One is with respect to the sample weight 25 grams sent to the Laboratory on 6.12.2005. Its test was conducted on 28.6.2006. The result of the analysis is as under;- Microscopic exam = cystholithic hairs present Beams alkaline test = positive Resin = 33.01% General observation of the Chemist ~ I am of the opinion that the exhibit contains the contents of charas. 15. Inter alia almost similar type of reports were examined by the Division Bench of this Court of which I was also one of the Members, in Sunil Kumar v. State of Himachal Pradesh and others, Latest HLJ 2010 (HP) 207, which were rejected on the ground that the Chemical Examiner's reports do not conform to the statutory definition of "charas", as he did not mention that the resin was that of the cannabis. 16. 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. 5. 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. 5. 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. 17. Therefore, the report mentioned in para 15 above is required to be ignored as it is not in conformity with the statutory definition of charas for which the accused stood charge-sheeted. 18. The another report Ext. PX is alleged to be qua the remaining stuff sent for analysis on the request of the learned Public Prosecutor as aforesaid. The alleged parcel was received in the Laboratory on 27.2.2010 through PW12 Constable Diwan Chand. On analysis, it is opined that the exhibit is extract of cannabis and sample of charas. 19. Initially the recovered stuff was 1 kg, out of it two samples of 25 grams each were drawn. After deducting 50 grams (two samples of 25 grams each) taken as sample, remaining stuff should have been 950 grams but when it was received in the Laboratory, it was only 802 grams as indicated in Ext. PX. The evidence on record reveals that remaining bulk before its transmission to FSL was opened by the order of Court and exhibited in the statement of PW2 HC Prakash Chand on 13.7.2009. As per the Court observations, the parcel was found duly sealed with seal impression 'A' which was in tact thus allowed to be opened. On opening it, rexine bag Ext. PI, Chadar Ext. P2, polythene packet containing charas was exhibited as Ext. P3 allegedly recovered from the accused, were got identified from him. The second sample Ext. P4 was also allowed to be opened in the Court meaning thereby the remaining stuff whatsoever was opened during the trial in the learned trial Court, its contents were exhibited. It was much thereafter the remaining bulk was ordered to be sent for analysis on the request of the Prosecutor as aforesaid through PW12 HHC Diwan Chand on 27.2.2010. The description of parcel is given in column No. 7 of the report of analysis Ext. PX as follows: 7. Description of the parcel: One sealed cloth parcel bearing four seals of "A". The description of parcel is given in column No. 7 of the report of analysis Ext. PX as follows: 7. Description of the parcel: One sealed cloth parcel bearing four seals of "A". The seals were found intact and tallied with specimen seals sent by the forwarding authority on the form NCB-1. The parcel was kept in safe custody of the Assistant Chemical Examiner till the report of the same was signed and dispatched. 20. The extract of the malkhana register is Ext. PW4/E. The perusal thereof reveals that the remaining bulk parcel was containing six seals of 'A' and contents of recovered stuff was 950 grams whereas when received in the FSL it was only 802 grams. Further the seals which were noticed in the Laboratory were only four in number. Now, if parcel was opened before the learned trial Court and its contents were exhibited in the statement of PW2 aforesaid, in that event, it must have contained six seals of 'A' and when the contents thereof were already marked as exhibits and duly signed by the Presiding Officer, the same contents should have also been sealed by the learned trial Court with its own seal and so received and found in the said parcel, alongwith such sample of seals, when it was opened in the Laboratory but it was not so. Therefore, the identity and link of the contents exhibited before the learned trial Court in the statement of PW2 aforesaid and examined in the FSL the report of which is Ext. PX are not established. 21. Further, there is no mention either in the statement of PW2 aforesaid or in the zimini orders that after the parcels were opened and exhibited in the Court on 13.7.2009, the said parcels were resealed under the orders of the Court and handed over for its custody to the MHC concerned with the direction to produce it on the next date. Thus, Ext. PX report of analysis with respect to the bulk could not be connected with the recovered stuff alleged to have been found in the possession of the accused. 22. Therefore, for the above stated reasons the judgment of conviction and sentence passed by the learned trial Court is unsustainable and is accordingly set aside. Consequently, the appeal is allowed and the accused is acquitted by giving him the benefit of reasonable doubt. 23. 22. Therefore, for the above stated reasons the judgment of conviction and sentence passed by the learned trial Court is unsustainable and is accordingly set aside. Consequently, the appeal is allowed and the accused is acquitted by giving him the benefit of reasonable doubt. 23. The accused is stated to be in jail serving out the sentence, he be released forthwith if not required in any other case. Registry to issue the release warrant of the accused to the Superintendent Jail concerned forthwith. Record of the learned trial Court be returned.