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Himachal Pradesh High Court · body

2012 DIGILAW 872 (HP)

State of Himachal Pradesh v. Parkash Chand

2012-11-23

R.B.MISRA, SURINDER SINGH

body2012
Judgment Surinder Singh, J. The present appeal by the State has been directed against the acquittal of the respondent passed by the learned Trial Court on 04.07.2007 in Sessions Trial No.1 of 2007, for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 200 grams of “Charas”. 2. We have heard the learned counsel for the parties and have carefully gone through the record. 3. In short, the case of the prosecution, is that on 27.09.2006, a police party headed by S.I.Mohinder Singh (PW6), had prior secret information that the accused was dealing in narcotics. On this information, he constituted a raiding party by joining Sh.Babu Ram (PW1) and Sh.Pritam Chand (PW4) local shopkeepers as independent witnesses. On the way, they came across the accused and he was stopped. Accused was informed by S.I.Mohinder Singh (PW6) that the police party entertained suspicion on him that he is possessed of some narcotic. As such, to satisfy the provision of Section 50 of the Act, PW.6 aforesaid gave option to him to be searched either by Magistrate or by a Gazetted Officer being his legal right in writing Ex.PW.1/A. The accused exercised the option and consented to be searched by the police party. The consent Memo Ex.PW1/B was signed by the accused. Thereafter, police party rendered themselves to be searched by the accused but nothing incriminating was found, as such, a Memo Ex.PW1/C was executed in the presence of the witnesses. 4. Thereafter, the personal search of the accused was conducted by I.O. PW.6, and recovered 200 grams of “Charas” from the pocket of the jacket worn by the accused. Out of which two samples of 5 grams each were separated and sealed with seal impression ‘M’ on each parcel. The facsimile of the seal was taken on a piece of cloth (Ex.P7) vide seizure memo Ex.PW1.E. The seal after its use was handed over to Babu Ram (PW1). The jacket aforesaid was also taken into possession vide memo Ex.PW1/D. 5. The accused was apprised of his arrest in writing and grounds of arrest Ex.PW1/G were informed to him. NCB forms in triplicate were also filled in on the spot. Out of which one is Ex.PW2/B. The facsimile of the seal used on the spot was also taken in the relevant column. The accused was apprised of his arrest in writing and grounds of arrest Ex.PW1/G were informed to him. NCB forms in triplicate were also filled in on the spot. Out of which one is Ex.PW2/B. The facsimile of the seal used on the spot was also taken in the relevant column. “Ruqa” was sent for registration of the case which culminated into the present FIR. 6. MHC Parvesh Kumar (PW7) handed over the case file to PW.8 Sandeep Kumar with the direction to hand over the same to PW6 Mohinder Singh. PW.6 Mohinder Singh deposited the case property along with specimen of seal impressions, NCB forms and other documents with PW7 HC Parvesh Kumar for being entered into Malkhana register. 7. On 02.10.2006 vide R.C. No.143/21 PW.7 Parvesh Kumar handed over one sealed sample parcel, specimen seal impression, NCB forms to PW.5 HHC Shamsher Singh for depositing the same in the CFSL, Chandigarh, but the officials of CFSL Chandigarh raised some objections and he brought it back and deposited with HC Parvesh Kumar (PW7). On 9.10.2006, again PW.5 aforesaid was deputed to CFSL Chandigarh on the direction of PW7 to deposit one sealed parcel along with aforesaid specimen seal and NCB forms. It tested positive for charas. The report of the Chemical Examiner is Ex.PW6/G. 8. After completing the investigation, challan against the accused was filed for the aforesaid offence, he was put on trial and at the end got acquittal mainly on the ground that independent witnesses did not support the case of the prosecution and there were material contradictions in the statements of the official witnesses. 9. On reappraisal of the evidence on record, we find that the report of the analyst is not in conformity with the definition of Charas for which accused was tried. For the sake of convenience, result of the examination as per Ex.PW6/G is reproduced as under:- “Various laboratory tests were carried out with the exibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characterstic cystolithic hair. The results thus obtained has been given below:-Exhibit-1 is a sample of Charas”. 10. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characterstic cystolithic hair. The results thus obtained has been given below:-Exhibit-1 is a sample of Charas”. 10. “Charas” as defined under Section 2(iii) is one of the three forms of cannabis (hemp), as defined under 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.” 11. Thus, 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, or cannabis plant. 12. If the result of the examination, as quoted above, is seen in the light of the definition of Charas, it does not conform to the definition of Charas given under the statute. The analyst report does not show whether on the examination any resin was of a cannabis plant. Therefore, on the basis of this report, it cannot be said that the content so examined falls within the definition of Charas and was a contraband within the meaning of said Section. 13. Also we find that the link evidence in the present case is not complete. The record reveals that Shamsher Singh (PW5) aforesaid had taken the case property on 02.10.2006 to deposit in CFSL Chandigarh. According to PW7 Parvesh Kumar some objections were raised which were recorded in the daily diary (Ex.PW7/D), which says that the samples which were taken on 02.10.2006 by Shamsher Singh (PW5) for being deposited the same to the Laboratory, could not be deposited as the forms were not complete. PW.7 H.C. Parvesh Kumar stated that the objections were removed and the case property was taken again to the Laboratory on 09.10.2006 and on the same day it was deposited in the laboratory. There is no evidence on record that under whose control, care and custody the case property remained after 2.10.2006 to 7.10.2006. PW.7 H.C. Parvesh Kumar stated that the objections were removed and the case property was taken again to the Laboratory on 09.10.2006 and on the same day it was deposited in the laboratory. There is no evidence on record that under whose control, care and custody the case property remained after 2.10.2006 to 7.10.2006. The officials of the CFSL Chandigarh were neither examined nor they have given any certificate regarding the safe custody of the aforesaid case property till its return after raising objections through constable Shamsher Singh. 15. Further PW1 Babu Ram and PW4 Pritam Chand have denied the suggestion of being associated in the raiding party but according to them they were called to the Police Station where sealing process was done. The accused in his statement under Section 313 of the Code of Criminal Procedure has denied the recovery aforesaid. According to him, a false case has been foisted upon him. PW.4 in his statement admitted that accused was a Communist Leader and S.I. Mohinder Singh used to harass the public, that is why SHO on the complaint of the accused was transferred from that place earlier. But when he was posted again in the said Police Station in the year 2006, he is alleged to have foisted a false case against the accused. 16. Thus on the emphatic examination of the evidence on record, we find that the report of the analysis could not be linked with the alleged recovery and the link evidence was not complete, as such, acquittal of the accused for the aforesaid offence cannot be interfered with. 17. The State appeal sans merit, hence dismissed. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records.