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2013 DIGILAW 339 (HP)

STATE OF HIMACHAL PRADESH v. LAL BAHADUR

2013-04-24

SURINDER SINGH, V.K.SHARMA

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JUDGEMENT SURINDER SINGH, J. - 1. THE Trial Court acquitted the respondent (hereinafter to be referred as 'accused') on the grounds of alleged contradictions in the statements of the official witnesses and also that the independent witnesses have turned hostile, in the case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act' for allegedly keeping in possession 850 grams of 'charas'. 2. IN short the prosecution story can be stated thus. On 18.01.2007, at about 7.10 p.m. PW-9 ASI Deva Nand, Incharge CIA Staff, Solan, was heading a police party and was present on National Highway-22 at a place known as Rabon, near Uday Vihar. They spotted the accused holding a gunny bag in his right hand coming from the opposite side. The aforesaid ASI Deva Nand conducted search of the gunny bag. It was found to have contained 'charas' in the above quantity, which was in the form of sticks packed in a cloth bag. The accused alongwith the contents of the aforesaid bag was taken to the shop of PW-4 Shankar Lal, which was at a distance of about 50 meters where the recovered stuff was weighed, out of which two samples of 25 grams each were separated and sealed with seal impression 'B'. The remaining bulk was also sealed with the same seal alongwith the gunny bag. The sample seal was taken on a piece of cloth and the facsimile was taken on the NCB form in triplicate which were filled in on the spot. The case property was taken into possession vide memo Ex. PW-3/A in the presence of PW-3 Shri Mohan Lal and PW-4 Shankar Lal. Rukka, Ex. PW-8/A, was sent through PW-2 HHC Bir Singh to the Police Station for the registration of the case, which culminated into the present FIR. 3. THE police prepared the site plan of the place of alleged recovery. Statements of the witnesses were recorded. The accused was arrested and grounds of arrested were informed to him. The accused as well as the case property were produced before PW-8 S.I. Anil Daulta, who was Additional SHO, Solan. The case property was resealed with seal impression 'A' and its facsimile was also taken on a piece of cloth. A certificate to this effect was issued. The accused was arrested and grounds of arrested were informed to him. The accused as well as the case property were produced before PW-8 S.I. Anil Daulta, who was Additional SHO, Solan. The case property was resealed with seal impression 'A' and its facsimile was also taken on a piece of cloth. A certificate to this effect was issued. Thereafter the case property alongwith sample of seals was deposited in 'malkhana' with PW-7 MHC Sunil Kumar for safe custody. 4. ON 19.01.2007 one of the sample facsimiles was sent through PW-2 HHC Bir Singh for its deposit in CFSL, Chandigarh, vide RC Ex. PW-7/A alongwith the sample of seal which he could not deposit in the laboratory because of holidays, as such he brought it back and it was resent on 23.01.2007 which was received in the laboratory. On examination of the sample, it testified positive for 'charas' as per report Ex. PX. After completing investigation, challan was presented in the Court for trial of the accused. He was accordingly charge-sheeted for the aforesaid offence to which he pleaded not guilty and claimed trial. 5. TO prove its case prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the recovery of the alleged contraband from his possession. However, he admitted signatures on various papers which were obtained by the police forcibly. He raised the defence that he had refused to do the work of contractor at the instance of police and also refused to give shuttering for constructions work because two of the Head Constables had not paid his earlier wages. No evidence in defence was led. 6. AT the end of the trial, the accused was acquitted on the ground that the independent witnesses have turned hostile to the prosecution and the link evidence was not complete and further that there was contradiction in the statements of the material prosecution witnesses. Shri D.C. Pathik, learned Additional Advocate General, vehemently contended that the link evidence in the present case is complete. There is no material contradiction in the statements of the prosecution witnesses. However, the independent witnesses, though turned hostile, have not damaged the case of the prosecution to the extent as it is projected by the learned Trial Court. 7. PER contra, Shri Ramakant Sharma, Advocate, learned counsel for the accused, duly assisted by Ms. There is no material contradiction in the statements of the prosecution witnesses. However, the independent witnesses, though turned hostile, have not damaged the case of the prosecution to the extent as it is projected by the learned Trial Court. 7. PER contra, Shri Ramakant Sharma, Advocate, learned counsel for the accused, duly assisted by Ms. Soma Thakur, Advocate, supported the impugned judgment of acquittal and further ventilated that the prosecution has miserably failed to prove the alleged contents, examined in the laboratory, falling within the definition of 'charas' in view of Division Bench judgment passed by this Court in Sunil vs. State of H.P., Latest HLJ 2010 (HP) 207. 8. WE have considered the rival contentions on behalf of the learned counsel for the parties and reappraised the evidence on record. Pw-9 ASI Deva Nand and Pw-2 HHC Bir Singh have categorically stated about confronting the accused with the alleged recovery from his gunny bag on 18.01.2007 at National Highway 22, Rabon, near Uday Vihar. The accused failed to give any plausible explanation with respect to the alleged stuff. It was thereafter that the accused was taken to the shop of Pw- 4 Shankar Lal for weighing the said stuff, which was done in the presence of Pw-4 Shankar Lal and Pw-3 Mohan Lal who also happened to be present there and the sampling process was also completed in their presence. Pw-4 Shankar Lal as well as Pw-3 Mohan Lal did not support this part of the prosecution story and turned hostile. They were subjected to meticulous cross- examination by the learned Public Prosecutor, but nothing material could be extracted from them. However, in the cross- examination conducted by the accused, they admitted their signatures on the recovery memo having been obtained by the police at one time and in one go and further stated that the contents of the documents were not read-over and explained to them. They also stated that the accused was working as a labourer and later as a builder, Whereas, Pw-4 Shankar Lal denied his signatures on the parcels Ex. P6 and P7 shown to him alleged to have been recovered from the accused. 9. FURTHER PW-8 ASI Deva Nand stated that the case property was produced before him and it was resealed with the seal impression 'B'. P6 and P7 shown to him alleged to have been recovered from the accused. 9. FURTHER PW-8 ASI Deva Nand stated that the case property was produced before him and it was resealed with the seal impression 'B'. He also proved the certificate issued by him to this effect and it is deposited with PW-7 MHC Sunil Kumar. Thereafter it also stands established on record that PW-2 HHC Bir Singh has taken one of the sample parcels vide RC No. 5/07 on 19.01.2007 for depositing in CFSL, Chandigarh. According to PW- 7 MHC Sunil Kumar, he could not deposit the same in the laboratory on that day and again it was resent on 23.1.2007 vide RC No. 8/07 and he stated that on the same day, it was deposited in CFSL, Chandigarh. This fact has been testified by PW-2 HHC Bir Singh and he has further stated that he had taken the samples of 'charas' alongwith sample parcel, which fact also finds mention in the RC coupled with the fact that the report of analysis also shows receipt of the sample parcel alongwith the sample of seals, which tallied with each other and later on examined in the laboratory. 10. THEREFORE , in our considered opinion, we do not find any link evidence in this case between the alleged recovery of charas and till it was deposited in the laboratory. However, we do find and hold that the report of analysis does not conform to the definition of 'charas' for which the accused stands charge- sheeted. The report Ex. PX, though say that the sample was that of 'charas', but result of the examination to conclude this is as under: "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." The Division Bench of this Court in Sunil vs. State of H.P., Latest HLJ 2010 (HP) 207, happened to examine inter alia a similar type of report in the light of the medical authorities vis-a- vis the definition of 'charas' under the Act. After its scrutiny, the Court came to the conclusion that it does not conform to the statutory definition of 'charas'. 11. After its scrutiny, the Court came to the conclusion that it does not conform to the statutory definition of 'charas'. 11. 'CHARAS' is one of the three form 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. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 6. Flowering and fruiting tops of cannabis plant have been defined to meant 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. 7. When charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, 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. 8. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No. S.O. 527 (E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No. 23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55." 12. For charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No. 23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55." 12. 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. Thus being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment also varies according to the quantity possessed, as notified in the Schedule. 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. 13. 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 Kumar's 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'. 14. 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'. Neither it says any thing about resin nor the source of other ingredients was found in the sample examined whether these were of cannabis plant. For aforesaid reasons, in our considered opinion, prosecution has failed to prove the case against the accused beyond reasonable doubt and the report of analysis is found to be discrepant. As such the acquittal of the accused cannot be converted into conviction. The appeal filed by the State sans merit and is accordingly dismissed. 15. THE bail bonds entered upon by the accused during the proceedings of the case are hereby discharged.