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2013 DIGILAW 610 (HP)

Duni Chand v. State of Himachal Pradesh

2013-06-27

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT Surinder Singh, J (oral): The appellant is aggrievedand dissatisfied by the judgment of the conviction and sentence passed by the learned Sessions Judge, Kullu in Sessions Trial No.83 of 2004, on 23.9.2005, whereby he was convicted for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, in short “the Act”, for allegedly keeping in his possession 1.00 kilo grams Charas and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of `Rs1,00,000/-;in default of payment of fine to further undergo imprisonment further for four year. 2.Heard and gone through the evidence on record. 3.In short, the prosecution story as emerges from the evidence on record can be stated thus. On 7.6.2004, PW3 SI Neel Chand was heading a police patrol party. When they were on detection of crime in Nagar area, falling under Police Post Patli Kuhal (Kullu) and just across half kilometer ahead of Nagar bridge, they spotted the appellant, hereinafter referred as “the accused” coming from the opposite side carrying a rucksack on his back. On seeing the police party, the accused had tried to escape which raised suspicion, thus the police party apprehended him. According to the case of the prosecution, it was an isolated place and no witnesses were available, as such, SI Neel Chand associated PW1 ASI Bhim Sain and PW2 C. Sunder Singh, the police officials from the patrol party, as witnesses. (ii) The rucksack of the accused was searched, which led to the recovery of a polythene bag Ext.P4 containing the Charas in the shape of small round-chapaties. On its weightment, it turned out to be one kilogram. (iii) Out of the recovered stuff, two samples of 25 grams each were separated, packed and sealed and on each of the samples parcel six seal impressions of English letter ‘H’ were affixed. The bulk Charas Ext.P5 was also sealed with the same seal in the rucksack Ext.P3 after wrapping it in the polythene bag Ext.P4. (iv) NCB forms in triplicate out of which one is Ext.PW3/B were filled in by the Investigating Officer. The sample of seal was taken separately on a piece of cloth Ext.PW1/A. The case property was taken into possession vide seizure memo Ext.PW1/B and the seal after its use was handed over to PW1 ASI Bhim Sain. (iv) NCB forms in triplicate out of which one is Ext.PW3/B were filled in by the Investigating Officer. The sample of seal was taken separately on a piece of cloth Ext.PW1/A. The case property was taken into possession vide seizure memo Ext.PW1/B and the seal after its use was handed over to PW1 ASI Bhim Sain. (v) The accused was arrested and grounds of arrest in writing were informed to him. (vi) A ruqa was sent for the registration of the case, which culminated into FIR Ext.PW7/A. Police prepared site plan of recovery Ext.PW3/D and recorded the statements of the witnesses. (vii) PW3 SI Neel Chand produced the case property before PW7 SI/SHO Roop Singh. He resealed the sample parcels with seal impression ‘M’ alongwith the remaining bulk. The facsimile of the seal was also put by him on the NCB forms. Sample seal was also taken on a piece of cloth Ext.PW7/C. Thereafter the case property alongwith samples of seal and NCB forms were deposited with PW5 MHC Mohan Singh for its safe custody in Malkhana. The MHC aforesaid made its entry in the Malkhana register, extract thereof is Ext.PW5/A. (viii) On 8.6.2004, one of the samples parcel was sent through PW2 C. Sunder Singh vide R.C. Ext.PW5/B for its deposit in the Laboratory to which he did and after getting the receipt on the R.C., it was deposited back with the MHC aforesaid in the Police Station. (ix) The report of search and seizure Ext.PW3/E was sent to the officer superior within the statutory period. 4.On receipt of the report of analysis Ext.PA and after completing the investigation, the challan was presented in the Court for the trial of the Accused. 5.The accused was accordingly charge- sheeted for the offence aforesaid, to which, he pleaded not guilty and claimed trial. 6.To prove its case, prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. The defence taken by the accused was that on 7.6.2004, he was waiting for the bus in village Harchhandi, there were 2-3 ladies and a foreigner. Police found an unclaimed bag and on suspicion, he alongwith said foreigner were taken to Police Post Patli Kuhal, where the foreigner was let off and case was fabricated upon him. The defence taken by the accused was that on 7.6.2004, he was waiting for the bus in village Harchhandi, there were 2-3 ladies and a foreigner. Police found an unclaimed bag and on suspicion, he alongwith said foreigner were taken to Police Post Patli Kuhal, where the foreigner was let off and case was fabricated upon him. He opted to lead the defence evidence and examined DW1 Budh Ram to prove that near the place of alleged recovery, there were 9-10 houses at village Mayli to which he also belonged and there has been a common path being used by the villagers. The main plank of defence by the accused was that this was a fabricated case and the independent witnesses though available from the nearby village could have been associated, but, the police avoided to do so and planted the case against him. The learned trial Court disbelieved the defence and while relying upon the evidence of the prosecution, convicted and sentenced the accused as aforesaid. 7. We have reappraised the evidence on record very closely and cautiously scanned it. 8.All the official witnesses have stated in one voice that the accused was apprehended across the Nagar-bridge with a rucksack on his back and recovered the alleged contraband aforesaid from his possession. In their cross-examinations, though desperate attempts were made to assail the recovery for want of independent witnesses, but it has been testified by the official witnesses in one voice that the place was lonely and secluded and no witness was readily available. A path in the site plan Ext.PW3/D to village Nagar, Ghordor as well as Mayli has been shown at some distance from the main road, where accused was apprehended but there is nothing on record to prove that many persons were crossing the road at the relevant time and despite availability of the independent witnesses, the police avoided to include them during the search of the bag. Also there is no requirement that when the recovery is from an open place, it was imperative for the police to join independent witnesses. 9. By now, legally it is well established that the testimony of the official witnesses requires to be appreciated like other private witnesses and can be relied upon if their statements are worth confidence inspiring. 10. Also there is no requirement that when the recovery is from an open place, it was imperative for the police to join independent witnesses. 9. By now, legally it is well established that the testimony of the official witnesses requires to be appreciated like other private witnesses and can be relied upon if their statements are worth confidence inspiring. 10. On the meticulous scrutiny of the evidence by us, we do not find any contradictions in the statements of the official witnesses in so far as the recovery from the possession of the accused is concerned, but before the accused can be held liable for the offence charged, it is incumbent upon the prosecution to prove that it was a contraband falling within the definition of the Act and for that, we find that link evidence is complete from the time of its recovery till its deposit in the Laboratory and the report of analysis Ext.PA reveals that the Chemical Examiner had only applied qualitative and quantitative tests. i.e. the microscopic examination which disclosed presence of cystholithic hair and on beams alkaline was found positive. The sample so analyzed also contained 35.11% resin and on the basis of this report, the Chemical Examiner was of the opinion that the Exhibit contained the contents of Charas. 11.A report akin to the present one was examined by the Division Bench of this Court in Sunil Kumar vs. State of H.P. and other connected matters [Latest HLJ, 2010 (1) HP 207] in which one of us (Justice Surender Singh) was one of the Member and while taking note of the statutory definition of Charas and punishment provided therefar, held that such a report is not in conformity of the definition of Charas hence it was discarded. 12.‘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.” 13.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. 14.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. 15. 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. 16. 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. 17.In the instant case from the stuff recovered, one of sample parcels from each recoveries were sent for examination to CTL Kandaghat, report whereof does not show the presence of characteristic cystholithic hair nor it has been mentioned whether the resin found in the said sample was that of cannabis plant so as to bring it within the definition of charas referred to above. It also does not depict the presence of cannoniboils/ tetrahydrocannabinol. In other words the report of chemical examiner did not say any thing about the source of resin also. Therefore, in our considered opinion, report of the analysis Ext. PW10/F is discrepant and does not conform to the definition of charas as such the conviction and sentence passed against the accused is liable to be set aside. 18. Consequent upon the aforesaid analysis, the appeal filed by the accused is allowed and judgment of conviction and sentence is set-aside. Therefore, in our considered opinion, report of the analysis Ext. PW10/F is discrepant and does not conform to the definition of charas as such the conviction and sentence passed against the accused is liable to be set aside. 18. Consequent upon the aforesaid analysis, the appeal filed by the accused is allowed and judgment of conviction and sentence is set-aside. The accused is acquitted by giving him the benefit of doubt. He is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 19.The matter stands disposed of, so also the pending application(s), if any. Send down the records.