Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 443 (HP)

State of Himachal Pradesh v. Dhani Ram

2013-05-17

SURINDER SINGH, V.K.SHARMA

body2013
JUDGMENT Justice Surinder Singh, J. (oral) Acquittal of the respondent, hereinafter referred to as ‘the accused, passed by the learned trial Court in Sessions Case No. 41 of 2005 decided on 23.2.2007, 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’ for allegedly keeping in his possession 750 grams of charas in a bag while travelling in HRTC bus No. HP-42-0803. 2. In short, prosecution case is that the police party headed by PW-14 ASI Palam Singh was on routine checking, at a place known as “Baloo”. Around 7.45 pm, when the aforesaid bus of HRTC Chamba Depot arrived there from Bhanjruaru, it was stopped for checking. The accused was found sitting on seat No.37 having a bag in his lap. The bag of the accused was checked up. It contained 750 grams of charas. The weights and scale were arranged from the shop of PW-3 Sanjay Gupta and it was he who had allegedly weighed the recovered stuff, two samples of 20 grams each were separated therefrom. The samples were put in Four Square cigarette-packet separately and were sealed with seal impression ‘P’. The remaining bulk of charas was packed in the same bag by making it a parcel and sealed in a cloth parcel with the same seal. NCB forms (Ext.PA) in triplicate were also filled in at the spot. The case property was taken into possession vide recovery memo Ext. PW-14/B. Ruqua Ext. PW-14/A was sent through Constable Shaukat Ali to the Police Station for registration of the case. 3. On the receipt of ruqua, SHO deputed PW-12 ASI Ravinder Kumar. On reaching the spot, PW-14 prepared the inventory Ext PW-12/A and handed over the case file along with the accused and case property to PW-12 aforesaid. Further investigation was conducted by him. He recorded the statements of the witnesses, arrested the accused and prepared arrest memo Ext. PW-12/E. The accused produced bus-tickets Ext. P-1 and Ext. P-2, which were taken into possession vide memo Ext. PW-1/A. 4. The accused and the case property were produced before PW-11 ASI Swaran Singh. Further investigation was conducted by him. He recorded the statements of the witnesses, arrested the accused and prepared arrest memo Ext. PW-12/E. The accused produced bus-tickets Ext. P-1 and Ext. P-2, which were taken into possession vide memo Ext. PW-1/A. 4. The accused and the case property were produced before PW-11 ASI Swaran Singh. The accused was put in the judicial lockup and all the three parcels of the case property were resealed by him with seal impression ‘T’ in the presence of H.C. Hans Raj and to this effect he prepared resealing memo Ext. PW-11/A. 5. On 2.4.2005, PW-11 ASI Swaran Singh had deposited the case property with MHC PW-9 Ramesh Chand for safe custody in Malkhana. One of the sample parcels was sent on 3.4.2005 through PW-8 Constable Naresh Kumar for chemical analysis to the CTL, Kandaghat vide R.C. No.47/05. After depositing the same in the Laboratory, he obtained the receipt and handed over back to MHC PW-9 Ramesh Chand. Special report regarding search and seizure was also sent to the official superior within the statutory time. On examination in the Laboratory, report Ext. PA on the NCB form was issued and on the basis of the test conducted in the Laboratory, the Chemical Examiner opined that the exhibit contained the contents of charas. 6. After completing investigation, challan was presented in the Court for trial of the accused. He was accordingly charge-sheeted for offence the aforesaid offence to which he pleaded not guilty and claimed trial. At the end of trial he was acquitted. The case of the accused was that he was innocent and nothing was recovered from his possession. 7. Mr. J.S. Rana, learned Assistant Advocate General, vehemently argued that the statements of officials witnesses prove the case against the accused for keeping in possession the contraband aforesaid. 8. On the other hand, Mr. Anup Chitkara, learned counsel for the accused supported the impugned judgment of acquittal and argued that the Chemical Examiner report in question is not in conformity with the definition of the charas for which the accused was tired. Therefore, this is an additional ground available to the accused for upholding the impugned judgment of acquittal. 9. We have carefully examined the rival contentions of the parties and have scanned the evidence on record. 10. Therefore, this is an additional ground available to the accused for upholding the impugned judgment of acquittal. 9. We have carefully examined the rival contentions of the parties and have scanned the evidence on record. 10. Apart from examining the official witnesses, the prosecution had also examined co-passengers of the bus, namely, PW-1 Pawan Kumar, PW-2 Sham Singh and PW-4 Sardar Mohammad. None of them have supported the case of the prosecution. Even PW-3 Sanjay Gupta who is alleged to have brought the weights and scale and allegedly conducted the weighment of the recovered stuff, also turned hostile. Significantly, he denied having visited the spot when the accused was apprehended. He also denied having made any statement to police. According to him, there were number of shops at village Baloo between the distance of about 30 to 50 yards. The co-passengers aforesaid have also denied that the accused was sitting on seat No.37 in the said bus. However, PW-4 Sardar Mohammad, Conductor of the bus, stated that the accused was travelling in the bus and he had issued bus tickets Ext. P1 and Ext. P-2 to the accused but nothing as alleged was recovered from the accused. 11. Though the above witnesses turned hostile to the prosecution but at least it stands proved that the accused was one of the occupants travelling in the bus aforesaid. 12. Now the next question arises whether any offensive material was recovered from the possession of the accused? For that, we shall have to examine the statements of PW-14 ASI Palam Singh, PW-5 Surinder Kumar and PW-6 Shaukat Ali. A perusal of their statements shows that the accused while travelling in the aforesaid bus, was having black coloured bag in his lap, from which the alleged offensive substance was recovered. Pertinently, PW-5 Constable Surinder Kumar is not a signatory to any of the recovery documents. The witnesses to search and seizure memo are PW-1 Pawan Kumar and PW-2 Sham Lal, as already stated they have not supported the case of the prosecution qua recovery. 13. PW-6 Shaukat Ali stated that the recovered stuff was weighed by Sanjay Gupta but PW-3 Sanjay Gupta when examined in Court denied this fact. The witnesses to search and seizure memo are PW-1 Pawan Kumar and PW-2 Sham Lal, as already stated they have not supported the case of the prosecution qua recovery. 13. PW-6 Shaukat Ali stated that the recovered stuff was weighed by Sanjay Gupta but PW-3 Sanjay Gupta when examined in Court denied this fact. Further it is pertinent to note that the Investigating Officer stated that he had filled in the NCB forms on the spot, which were also produced and proved by the prosecution either in his statement or any other witness. Further according to ASI/SHO he had deposited the case property in the Malkhana register. But the extract of Malkhana has not been produced in evidence to show about the depositing of the sample of seal and NCB. 14. Also one of the samples was allegedly sent for its analysis on 3.4.2005 through Constable PW-8 Naresh Kumar vide road certificate but he did not state that the sample of seals were sent along with sample parcels for its analysis to the Laboratory, although he stated about taking the case property along with NCB form for its analysis to the Laboratory yet the copy of road certificate has not been placed and proved on record to substantiate his version. 15. To prove the link of the sample parcels sent for analysis, either the facsimile of the seal used at the time of re-sealing should have been on the NCB form or the sample seal must have been sent separately along with sample parcels to the Laboratory so as to compare the seals by the Chemical Examiner at the time of its receipt in the Laboratory, to find out whether these seals were intact and tallied with the sample parcels. As already discussed above, neither the sample of seal was deposited nor sent with the sample parcels for analysis. Even the NCB form Ext. PA, on which the report of Chemical Analyst contained, also does not have the facsimile of seals, which could have facilitated the Chemical Examiner to compare it with the seal found on the sample parcels. As already discussed above, neither the sample of seal was deposited nor sent with the sample parcels for analysis. Even the NCB form Ext. PA, on which the report of Chemical Analyst contained, also does not have the facsimile of seals, which could have facilitated the Chemical Examiner to compare it with the seal found on the sample parcels. Though a certificate has been appended to the report that the seal/seals on the sample tallied with the specimen impression of seal/seals were sent separately, but this lithographic impression appears to be appended in a mechanical manner which cannot be taken as a conclusive proof in absence of the cogent and reliable evidence of the sample seal having sent for comparison. 16. Further it is incumbent upon the prosecution to prove that the seals which were used on the spot to seal the case property and thereafter in the police station at the time of its resealing remained un-tampered till it reached the Laboratory to overrule the possibility of any tampering. In the instant case, link evidence is not available which casts a doubt on the probity of the prosecution case. 17. Further we also find that the report in question is not in conformity with the statutory definition of ‘charas’. 18. 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.” 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. 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.” 19. 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. 20. 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. 21 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. 22. As per definition of ‘charas’ reproduced herein above, resin is not an ingredient of ‘charas’ unless it is of cannabis plant. ‘Charas’ means the whole resin in whatever form, whether crude or purified of cannabis plant. 22. As per definition of ‘charas’ reproduced herein above, resin is not an ingredient of ‘charas’ unless it is of cannabis plant. ‘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’. 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 found in the sample examined, whether these were of cannabis plant. 23. For aforesaid reasons, in our considered opinion, the appeal filed by the State sans merit and is accordingly dismissed. 24. The bail bonds entered upon by the accused during the proceedings of the case are hereby discharged. 25. Send down the records.