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2013 DIGILAW 227 (HP)

STATE OF HIMACHAL PRADESH v. PAWAN KUMAR

2013-04-03

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. - 1. THE State has challenged the acquittal of the respondent, hereinafter referred to as the accused, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act', for allegedly keeping in possession 750 grams of Charas on 27.9.2006 at about 12.30 p.m. while travelling in bus bearing Registration No.HP-34-3184. 2. AS per the case of the prosecution on the arrival of the bus at 'Burah Mod', it was stopped at the Naka point. The bus crews were Sher Singh and Netar Singh. While checking, PW-8 ASI Shiv Chand found the accused sitting and holding an envelope of light-red colour in his lap, he got suspicious and asked about his identity, to which he disclosed but when checked envelop, it contained 750 grms of Charas. Out of the recovered stuff, two samples of 25 grms., each were separated and packed and sealed with seal impression 'N'. The remaining Charas was also sealed with the same seal. The seal impression was also taken on a separate piece of cloth. The I.O. filled in NCB forms in triplicate and the case property was taken into possession vide seizure memo Ex.PW-1/J in the presence of the bus crews aforesaid. A rukka was sent for registration of the case, which culminating into FIR Ex.PW-5/B. 3. POLICE also prepared the site plan Ex.PW-8/B of the alleged place of recovery. Accused was arrested. Grounds of arrest were informed to him. Thereafter the accused as well as the case property were produced before PW-5 Prittam Chand, SHO Police Station Aut, District Mandi. 4. THE case property was resealed with seal impression 'T'. The facsimile was taken on NCB forms, one of which is Ex.PW-8/F. Thereafter the case property was deposited in the Malakhana with MHC PW-6 Prakash Chand for safe custody, he made its entry in the relevant register, extract whereof is Ex.PW-6/A. The report regarding the search and seizure was given to the officer superior within the statutory period. 5. ON 24.10.2006, one of the parcels was taken by PW-7 Rupender Singh for its analysis, which was deposited by him on the same day along with police docket in the laboratory. He obtained the receipt on its deposit on the reverse side of the RC, which on return was handed over to MHC aforesaid. 6. THE sample parcel was examined in the laboratory. He obtained the receipt on its deposit on the reverse side of the RC, which on return was handed over to MHC aforesaid. 6. THE sample parcel was examined in the laboratory. The report is Ex.P-A. The relevant portion of the report is reproduced as hereinafter:- "RESULT OF 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 analysed as given below: Exhibit-1 is a sample of Charas. After examination, the parcel containing the exhibit/remnants of the exhibit has been sealed with the seal impression as per specimen provided below:" After receipt of the result of analysis, the accused was charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 7. TO prove its case, the prosecution examined as many as nine witnesses and the accused was also examined under Section 313 Cr.P.C. His case was denial simplicitor. At the end of the trial, he was acquitted on the grounds that the independent witnesses did not support the case of the prosecution and secondly, the sample parcel was sent after about 20 days to the laboratory for which no cogent explanation was given by the prosecution. We have heard the learned counsel for the parties 8. AND reassessed the evidence on record. At the very outset, we would like to say that the prosecution is under obligation to prove by leading a cogent and convincing evidence that the material which was recovered from the possession of the accused, was a contraband within the meaning of the Act. In the instant case, the positive case of the Prosecution is that the accused was having Charas in his possession. The definition of the Charas as defined under Section 2(iii) of the act, 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." 9. ACCORDING to the definition of "Charas", as given in Section aforesaid 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. ACCORDING to the definition of "Charas", as given in Section aforesaid 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. 10. 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. 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. 11. THE result of the examination as re-produced above also came up for scrutiny before the Division Bench of this Court in Sunil Kumar versus State of H.P. and other connected matters, reported in Latest HLJ 2010 (HP) 207 and after its thorough examination, the Division Bench, of which one of us (Justice Surinder Singh, J.) was one of the members, held that such a result would not conform to the definition of the Charas as reproduced above. Further, the report of the analysis also does not show the presence of the resin and its percentage in the stuff examined and there is no reference whether any of the ingredients found on examination were that of cannabis plant. Therefore, in our considered opinion and applying the judgment of Sunil Kumar's case supra, the prosecution has failed to prove that it was a contraband within the meaning of the Act and the recovery of the substance from the accused is not cogently linked with the accused in accordance with law. The independent witnesses also did not support the case of the prosecution and no cogent explanation has been given by the prosecution as to why there was delay in sending one of the samples of parcel to the laboratory. 12. THEREFORE, it is not a case for converting the acquittal into conviction; hence the State appeal is dismissed. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Appeal is dismissed.