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2013 DIGILAW 356 (HP)

STATE OF HIMACHAL PRADESH v. DEEP RAM

2013-04-26

SURINDER SINGH, V.K.SHARMA

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JUDGEMENT SURINDER SINGH, J. - 1. THE respondent, (hereinafter to be referred as 'the accused'), was tried and acquitted by the learned trial court for the offence punishable under Section 20 (b) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short 'the Act' for allegedly keeping in possession of 150 grams 'charas' mainly on the following grounds:- i) The parcel was marked as S1 and the report opined that the sample was P1, sent for chemical examination. It was not known as to how the sample was marked as P1 by the chemical examiner, which fact was also not clarified by the chemical examiner while submitting in the court. Thus, the comparison of the seal by the chemical examiner as per his report goes to show either the seal impression was not sent, or there was no comparison made by the chemical examiner. iii) The independent witnesses did not support the prosecution case. The statement s of the official witnesses were also contradictory. 2. WE have heard the learned counsel for the parties and have reassessed the evidence on record. We do find material discrepancy in the prosecution case with respect to the identity of the sample sent and examined in the laboratory. Though the road certificate Ext. PW4/B reflects that a sample parcel was sent bearing Mark SI for examination, but the report of analyst Ext. PW7/H does not make any mention to this effect, rather he referred it to be P1, the identity of the sample is not established. Further we have also noticed that the result of the examination, whereby the chemical examiner opined it be a sample of 'charas' does not contain the qualitative test, which was alleged to have been performed in the laboratory. Even there is no reference about the presence of tetrahydrocannabinol in the sample nor the microscopic examination indicated the presence of cystolithic hair in the sample. 3. HOWEVER, it is mentioned that the sample contained the resin 39.61 % W.W. but resin of which plant has not been specified, then how it was 'charas'; is not known. Whereas 'charas' as defined under Section 2 (iii) of the Act, 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. 4. Whereas 'charas' as defined under Section 2 (iii) of the Act, 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. 4. THUS, according to this definition the stuff to fall to 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, ilke flowering and fruiting tops, leaves or stem, of cannabis plant. 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. 5. 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. 6. BEING in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act, which varies according to the quantity possessed. In Sunil Vs. State of Himachal Pradesh and other connected matters, decided by Division Bench of this court, Latest HLJ 2010 (HP) 207, almost identical report came under scrutiny of this court and it was held that the report aforesaid did not confirm to the legal requirement as laid down in the Act. Legally, the prosecution is obliged to prove its case in accordance with law to sustain conviction. The prosecution is also obliged in the instant case to prove that the stuff recovered from the accused was 'charas' falling within the definition of 'charas', as referred above. For that we have scrutinized the report of the analyst . Merely by saying that it was an extract of 'charas' would not make it 'charas'. It has not been shown that the resin contents were of cannabis plant. The report in question is silent on this aspect, therefore, we find the report discrepant and not in conformity with the statutory definition of 'charas'. As such for the aforesaid reason, the acquittal of the accused cannot be converted into conviction. 7. IN view of the above, the appeal filed by the appellant-State sans merit and is accordingly dismissed. 8. The report in question is silent on this aspect, therefore, we find the report discrepant and not in conformity with the statutory definition of 'charas'. As such for the aforesaid reason, the acquittal of the accused cannot be converted into conviction. 7. IN view of the above, the appeal filed by the appellant-State sans merit and is accordingly dismissed. 8. THE bail bonds entered upon by the accused during the proceedings of the case are hereby discharged.