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2013 DIGILAW 348 (HP)

STATE OF HIMACHAL PRADESH v. Parshant Gill

2013-04-25

SURINDER SINGH, V.K.SHARMA

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JUDGEMENT SURINDER SINGH, J. 1. ACQUITTAL of the respondent (hereinafter referred to as 'the accused), passed in Sessions Trial No. 5 of 2007 decided on 1.12.2007, has been challenged by the State in the instant appeal for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act'. 2. PRECISELY , the case of the prosecution is that on 17.12.2006 at about 4.30 p.m., police party headed by PW13 Sub Inspector Abtar Singh were near Kiani link road for checking vehicles. In the meantime one Maruti Car bearing registration No. HP48-5471 came from Pukhri side being driven by the accused. The documents of the vehicle were demanded by the said police officer but he could not produce the same, instead getting apprehensive that he might be having some illegal weapon with him, he was overpowered and searched in the presence of the witnesses. While conducting his personal search, police recovered a polythene envelop containing 1 kg 800 grams of charas which was in the back of the jacket worn by him. Out of the recovered quantity, two samples of 25 grams each were separate and sealed with seal impression 'M'. Remaining bulk was also sealed with the same seal. Seal after its use was handed over to PW1 Hoshiar Chand. NCB forms in triplicate were also filled in on the spot. Facsimile of the seal was used and also taken on each of the said forms. Driving license of the accused was taken in to possession. Case property was also taken into possession vide memo Ext. PW1/A in the presence of PW1 Hoshiar Singh and PW2 Hans Raj independent witnesses. Copy of memo was supplied to the accused free of cost. Ruka Ext. PW4/A was prepared and sent for registration of the case through constable Mehar Singh. Special report regarding search and seizure was also sent to the official superior within the statutory time. Site plan Ext. PW13/A of the place of alleged recovery was also prepared. Accused was arrested and grounds of arrest were informed to him in writing Ext. PW2/A. Registration certificate Ext. PW13/B was also taken into possession vide memo Ext. PW6/A. 3. IT is further the case of the prosecution that the case property was produced before PW12 ASI Onkar Singh in police station Chamba for re-sealing, who was acting as SHO. Accused was arrested and grounds of arrest were informed to him in writing Ext. PW2/A. Registration certificate Ext. PW13/B was also taken into possession vide memo Ext. PW6/A. 3. IT is further the case of the prosecution that the case property was produced before PW12 ASI Onkar Singh in police station Chamba for re-sealing, who was acting as SHO. He is stated to have re-sealed the case property with seal impression 'B' and facsimile of the seal was also taken on the NCB forms as well as on the piece of cloth Ext. PW12/A. Thereafter the case property was received by PW10 MHC Ramesh Chand which was deposited in the malkhana alongwith NCB forms and sample of seals. 4. ON 18.12.2006 one of the sample parcels along with copy of FIR and NCB forms was sent to CFSL, Chandigarh through constable Krishan Lal for its deposit/analysis. It is alleged that there was some objection therefore, it was returned and re-sent on 26.12.2006 vide RC No. 138 of 2006 which was received in the Laboratory on 27.12.2006 vide report Ext. PA which was opined to be a sample of charas. 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 as many as fourteen witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He did not lead any evidence in defence. 6. AT the end of the trial, the accused was acquitted on the ground that the alleged independent witnesses have turned hostile to the prosecution, there are contradictions in the statements of the witnesses. report of analysis is not connected with the alleged recovery and also non-compliance of Section 50 of the Act. We have considered the rival contentions on behalf of the learned counsel for the parties and reappraised the evidence on record. 7. ON reappraisal of the evidence we find many material discrepancies in the prosecution case, which are material in nature and also that the link evidence is not complete to connect the accused with the alleged offence and further that the report of the analysis is not in consonance with the law declared by this Court. 7. ON reappraisal of the evidence we find many material discrepancies in the prosecution case, which are material in nature and also that the link evidence is not complete to connect the accused with the alleged offence and further that the report of the analysis is not in consonance with the law declared by this Court. Therefore, we are unable to convert the acquittal of the accused in to conviction for the reasons recorded hereinafter. 8. PW 13 has stated that the independent witnesses were included at the time of search as Hoshiar Chand and Hans Raj happened to be present by chance. Pertinently, both these witnesses have not supported the case of the prosecution and turned hostile rather they stated that no charas was recovered from the accused in their presence. Further, after the alleged recovery and sampling, the case property is stated to have been deposited in the malkhana by PW13 S.I. Abtar Singh with PW10 MHC Ramesh Chand. He did not say that it was produced before PW12 ASI Onkar Singh who was officiating as SHO for re-sealing. Though in cross-examination he stated that PW13 SI Abtar Singh was present but even Onkar Singh aforesaid has not stated to whom after re-sealing the case property was handed over. So it remains a mystery as to who had produced the case property to him before re-sealing when especially Abtar Singh himself stated that it was directly deposited by him with PW10 MHC Ramesh Chand who deposited it in the malkhana. Not only this, MHC Ramesh Chand stated that on 18.12.2006 one of the sample parcels was sent to analysis to CFSL Chandigarh through PW5 constable Krishan Lal vide RC No. 137 of 2006 Ext. PW10/B which was returned after objection but said PW Krishan Lal has not made any reference in his statement that it was ever entrusted to him on 18.12.2006 rather he stated that it was entrusted to him on 26.12.2006 vide RC No. 138/2006, instead of 18.12.2006 to which he deposited on 27.12.2006 in the Laboratory, but record does not show that the sample parcel was in fact, entrusted to him on 26.12.2006, as stated by him against the said RC. Therefore, the statements of PW10 MHC Ramesh Chand and PW5 Krishan Lal both are inconsistent and not coinciding with each other. Therefore, the statements of PW10 MHC Ramesh Chand and PW5 Krishan Lal both are inconsistent and not coinciding with each other. If MHC Ramesh Chand aforesaid is believed, then it is not shown that after its return sample parcel was received in the same shape and deposited in the malkhana and then re-sent on 26.12.2006. The extract of malkhana Register has not been placed and proved on record to explain this position. Even NCB forms also did not find light of the day during the trial. Further, the report of analysis makes a mention that one of the sample parcels was received in the Laboratory on 27.12.2006 through Constable Krishan Lal. It does not say about the receipt of the NCB forms. The result of the examination does not conclude that it contained any resin or the properties found in the sample were that of cannabis plant. It reads 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." 9. 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'. 10. '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. 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." 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. 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. 12. 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. 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. 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. 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'. 13. 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. 14. ON the strength of the above evidence, we also find breach of the link evidence and totality of the circumstances aforesaid makes the prosecution case a suspect. Needless to say that in the instant case on the facts asserted, Section 50 of the Act is not attracted. For aforesaid reasons, in our considered opinion, 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. 16. SEND down the records.