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Himachal Pradesh High Court · body

2013 DIGILAW 357 (HP)

State of Himachal Pradesh v. Gopi Chand

2013-04-26

SURINDER SINGH, V.K.SHARMA

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JUDGMENT Surinder Singh, J. (Oral): Respondent was chargesheeted, tried and acquitted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act (here-in-after referred to as the Act), keeping in his possession 150 grams of ‘Charas’. 2. We have heard Mr. Ramesh Thakur, learned Assistant Advocate General, for the appellant, but nobody appeared for the respondent despite notice and reflecting the name of the learned counsel for the respondent in the Cause List. Therefore, in view of the recent judgment of the Hon’ble Supreme Court rendered in K.S. Panduranga Vs. State of Karnataka, JT 2013 (3) SC 514, we proceed to decide the matter on its merit. 3. Mr. Ramesh Thakur, learned Assistant Advocate General, submitted that the learned trial Court has wrongly passed acquittal for non-compliance of the provisions of Section 50 of the Act, as the polythene packet containing contraband was in the hands of the respondent (hereinafter to be referred as ‘the accused’). 4. We have examined the point so taken in the light of the prosecution case as alleged against the accused. As per Investigating Officer PW-12 H.C. Prem Lal, on 13.10.2006 he was present at (Dosadka) Devidhar on patrolling duty. There he received a secret information that the accused was coming from his village on foot and going towards village Dohri, wearing black coloured T-shirt and might be in possession of contraband. This information was jotted down by him on a piece of paper to satisfy the provisions of Section 42(2) of the Act. A copy of Ext. PW10/A was sent to the higher officer through HHC Tilak Ram. Thereafter, he associated two independent witnesses PW-1 Narain Dass and Narad (not examined) and formed a raiding party. After covering about half kilometer, the accused was found coming from the opposite side clad in the same dress, who on seeing the police, got perplexed and had tried to run away. He was apprehended. His identity was asked and option was given to him in terms of Section 50 of the Act. The accused consented to be searched by the policy party in writing vide Ext. PW1/A. The police party gave their personal search to the accused, but nothing incriminating material was found. Memo Ext. PW1/B was prepared to this effect. He was apprehended. His identity was asked and option was given to him in terms of Section 50 of the Act. The accused consented to be searched by the policy party in writing vide Ext. PW1/A. The police party gave their personal search to the accused, but nothing incriminating material was found. Memo Ext. PW1/B was prepared to this effect. Thereafter, the said H.C. searched the polythene envelope, to which the accused was holding in his right hand, which contained 150 grams ‘Charas’ alongwith weighing scale and measures and weights of 100 gram and 50 gram. Thereafter, two samples from the recovered stuff of 25 grams each were separated and sealed with seal impression “N”. Thereafter the case property was taken into possession vide seizure memo. Ruka was sent for registration of case and after completing investigation on the spot, case property was deposited in the Malkhana. Later one sample was sent for examination tested positive for ‘Charas’. 5. On examining the facts as disclosed by the prosecution and its witnesses, we do find that in a given situation, compliance of the provisions of Section 50 of the Act is not attracted. In State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350 , which was also relied upon by the Apex Court in Ajmer Singh Vs. State of Haryana, (2010) 3 Supreme Court Case 746, it was held that a bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaia, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving alonwith them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word ‘person’ occurring in Section 50 of the Act. 6. Applying the aforesaid settled principle of law in the present case, we hold that the findings to the contrary by the learned trial Court that in the above factual position, the compliance of Section 50 of the Act was mandatory, is incorrect, but however, in the instant case, we do find that the report of the Chemical Analyst Ext. PW12/C is not in conformity with law. The result of the examination as contained in the report Ext. PW12/C is reproduced hereunder in verbatim: “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.” 7. Pertinently, the aforesaid report mentions the presence of cannabinols including tetrahydrocannabinol and also the presence of cystolithic hair but there is no reference with respect to resin contents in the said sample and also the source thereof. Only on the basis of the result of the examination as reproduced above, the Chemical Analyst was of the opinion that it was a sample of ‘Charas’. Almost similar type of report was inter-alia examined by the Division Bench of this Court in Sunil Vs. State of H.P., reported in Latest HLJ 2010 (HP) 207, alongwith six connected matters, which were not found in conformity with law. 8. Because “Charas” is one of the three forms 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.” 9. 8. Because “Charas” is one of the three forms 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.” 9. 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 hashis. 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. 11. 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 fail in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act. 12. 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(xxiia), 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. 13. Thus, we find that the report Ext. PW12/C is not in conformity with law falling within the statutory definition of ‘Charas’ given under the Act. As such, it is difficult for us to hold that the accused was found in possession of contraband within the meaning of Section 2(iii)(a) of the Act, for which he was chargesheeted. 14. 13. Thus, we find that the report Ext. PW12/C is not in conformity with law falling within the statutory definition of ‘Charas’ given under the Act. As such, it is difficult for us to hold that the accused was found in possession of contraband within the meaning of Section 2(iii)(a) of the Act, for which he was chargesheeted. 14. Therefore, we do not find any merit in the appeal filed by the State, which is dismissed. 15. The bail bonds furnished by the accused at any stage during the proceedings of this case, shall stand discharged forthwith.