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2013 DIGILAW 554 (HP)

STATE OF HIMACHAL PRADESH v. SHAMSHER SINGH

2013-06-18

DEV DARSHAN SUD, SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J. 1. ASSAILING the judgment dated 15.12.2007, passed by the learned Special Judge (I), Kangra Division at Dharamshala, Distt. Kangra, H.P. in Sessions Case No. 19-K/VII-2007, titled as State of H.P. vs. Shamsher Singh, whereby respondent-accused stands acquitted of the offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), in relation to F.I.R. No. 487 of 2006, dated 16.12.2006, registered at Police Station Kangra, the Whether reporters of Local Papers may be allowed to see the judgment? State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. THE prosecution case, in brief, is that on 16.12.2006, at about 7.15 p.m. at place Balla Mataur, the police party apprehended the accused and recovered 2 k.g. and 400 grams of charas from his possession. Two samples of 25 grams each were taken out from the recovered charas and sealed with seal impression-T. The remaining bulk was also sealed with the same seal. One sealed sample along with the NCB form and specimen seal were sent for chemical examination which were deposited at CFSL, Chandigarh, on 20.12.2006. As per the Chemical Examiner's report (Ext. PX) the contraband stuff was opined to be charas. With the completion of investigation, challan was presented in the Court for trial. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 3. IN order to establish its case, prosecution examined as many as twelve witnesses and the statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication. 4. AFTER trial, accused stands acquitted. Hence, the present appeal. Having heard learned counsel for the parties and perused the record, we are of the considered view that in the instant case no ground for interference is made out. 5. THE Chemical Examiner vide report (Ext. PX) has opined that on microscopic examination cystolithic hair were found present. As such, the Chemical Examiner has opined that the contraband substance so recovered was charas. It does not specifically state that the contents of resin is only of cannabis plant; concentrated preparation and the resin known as hashish oil or liquor hashish. 6. PX) has opined that on microscopic examination cystolithic hair were found present. As such, the Chemical Examiner has opined that the contraband substance so recovered was charas. It does not specifically state that the contents of resin is only of cannabis plant; concentrated preparation and the resin known as hashish oil or liquor hashish. 6. IN similar facts and circumstances, the Division Bench of this Court while deciding Criminal Appeal No. 391 of 2002, titled as State of H.P. versus Subhash Sharma @ Bhasi, vide judgment dated 19.9.2011 has taken a view that the contraband recovered cannot be said to be charas for the reasons indicated in paragraphs No.15 & 16 of the aforesaid judgment. The relevant paragraphs No.15 and 16 of which read as under :- "15. ......... The cystholithic hair is a fiber which could also be found in flowering tops of the cannabis plant, but the definition of charas does not include other parts like flowering and fruiting tops, leaves or stem. The definition of charas is given in Section 2 (iii) (a) of the Act. Charas, 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. Since it does not make any mention whether this resin was of a cannabis plant. Therefore, in our opinion the report of analysis is discrepant. The Division Bench of this Court in which one of us (Surinder Singh, J) was also one of the Members Sunil Kumar versus State Latest HLJ 2010 (HP) 207 examined almost similar reports in a Bunch matters and taking note of the aforesaid definition of charas under the Act viz-a-viz the statement of the Experts recorded during the trial as well as before this Court, held that charas should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. Thus, in absence of the fact that it was also that of a cannabis plant, result of analysis cannot be said to have in conformity with the definition of charas. As such the accused persons were given the benefit of doubt and were accordingly acquitted. 16. Thus, in absence of the fact that it was also that of a cannabis plant, result of analysis cannot be said to have in conformity with the definition of charas. As such the accused persons were given the benefit of doubt and were accordingly acquitted. 16. In the instant case, as already stated above, firstly the sample so analyzed by the laboratory could not be connected with the recovered stuff and secondly report of the analysis is falling short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considered opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed." In view of the observations made by this Court in Subhash Sharma @ Bhasi's case (supra) and in view of the Chemical Examiner's report, we are of the considered view that the contraband substance so recovered in the present case cannot be said to be charas. As such, benefit of doubt has to be given to the accused. 7. AFTER applying the verdict of Subhash Sharma @ Bhasi's case (supra) in the present case we are of the considered view that in view of the observations in the report, indicated at Ext. PX, the contraband goods recovered in the present case could also not be charas. As such, inter alia, on many other grounds relied upon and considered by the learned Special Judge (I) Kangra at Dharamshala, to arrive at its findings the prosecution has failed to bring home the guilt to the accused beyond reasonable doubt. We are of the considered view that prosecution has failed to bring home the guilt to the accused. Accordingly, the criminal appeal, being devoid of any merit is dismissed. Bail bonds, furnished by the respondent, are hereby discharged. Appeal stands disposed of, so also pending application(s), if any.