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2013 DIGILAW 639 (HP)

BIMLA RANI v. STATE OF H. P.

2013-07-03

R.B.MISRA, SURINDER SINGH

body2013
Judgment : SURINDER SINGH, J. - 1. Appellant has challenged her conviction and sentence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short 'the Act' for allegedly keeping in possession 1 kg 20 grams of charas. 2. In short, prosecution story can be stated thus. On 25.10.2007, PW8 Ranjit Singh, Incharge CIA Staff, Chamba along with HC. Ajit Kumar, Constables Surinder Kumar, Daya Singh, Manohar Lal, Kamlesh Kumar, Raj Kiran and Lady Constable Deepa Kumari was present at Gunnu nullah, falling in police station Tissa. Around 6.10 p.m., accused came from Tissa side having a polythene bag in her hand. Noticing the police party, she tried to escape but she was apprehended by the police. (ii) On inquiry, lady constable Deepa Kumari asked her identity. Thereafter on checking envelope to which she was carrying in her hand, it was containing stuff in the shape of sticks. PW8 ASI Ranjit Singh on smelling it prima facie came to the conclusion that it was charas. (iii) Thereafter constable Raj Kiran was deputed to arrange for the weights and measure. The recovered stuff was weighed which came to be 1 kg 20 grams. (iv) (Two samples of 25 grams each were separated from the recovered stuff and sealed with seal impression producing the impression of English letter and 'A' remaining bulk was also sealed with same seal in the same envelope by making a parcel. Seal impressions were taken on Ext. PW8/A. Facsimile of the seals was also taken on the NCB forms Ext. PW8/B, which were prepared on the spot in triplicate. (v) Seal after its use was given to PW1 constable Manohar Lal. Case property was taken into possession vide memo Ext. PW1/A. (vi) Ruka Ext. PW8/C was sent for the registration of the case through PW6 constable Surinder Kumar, its copy was also sent to Superintendent of Police, Chamba for information through HC Ajit Kumar. (vii) Site plan Ext. PW8/D of the alleged place of recovery was also prepared. Thereafter on reaching police station, inventory Ext. PW3/A was prepared by ASI Ranjit Singh and handed over the case file to PW9 ASI Sadanand for further investigation. (viii) ASI Sadanand aforesaid re-sealed the case property with seal impression "A' its facsimile was also taken on NCB forms produced before him. He also retained the seal impression Ext. Thereafter on reaching police station, inventory Ext. PW3/A was prepared by ASI Ranjit Singh and handed over the case file to PW9 ASI Sadanand for further investigation. (viii) ASI Sadanand aforesaid re-sealed the case property with seal impression "A' its facsimile was also taken on NCB forms produced before him. He also retained the seal impression Ext. PW2/B. (ix) Case property was deposited with MHC Madan Lal along with sample of seals and NCB forms. Its entry was made in the malkhana register, abstract whereof is Ext. PW4/A. (x) On 26.10.2007, one of the sample parcels was sent through PW5 constable Tilak Raj for its analysis to FSL Juna vide RC, copy whereof is Ext. PW4/B to which he deposited on 29.10.2007 and obtained receipts on the RC. On his return he handed over it back to PW4 HC Madan Lal. (xi) Special report regarding arrest was sent to the officers superior. (xii) On analysis, report Ext. PW11/A was issued and it was stated therein that sample was that of charas. After completing investigation, challan was presented in the Court for the trial of the accused. She was accordingly charge sheeted to which she pleaded not guilty and claimed trial. 3. To prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were put to her were denied by her and alleged her false implication in the case. 4. The learned Special Judge believed statement of the prosecution witnesses as such convicted and sentenced the accused as aforesaid. Shri Ashok Sharma, learned counsel for the accused vehemently argued that no independent witness was examined and even constable Raj Kiran was a material witness who was given up. He further argued that there has been contradiction in the statements of the official witnesses rendering the entire prosecution case doubtful. 5. On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further argued that contradictions with respect to the time and arrival of the police party in the police station are of very minor nature whereas documentary evidence supports the case of the prosecution in toto and none of the prosecution witnesses were confronted with the alleged contradictions as such these are ignorable. 6. We have carefully examined the evidence on record. 6. We have carefully examined the evidence on record. We find that PW8 ASI Ranjit Singh has fully corroborated the case of the prosecution. He also stated about the sampling from the recovered stuff as well as sealing process. He further stated having taken seal impression on the NCB forms on the spot as well as taking separate sample seals on the piece of cloth. He categorically stated about handing over the seal to constable Kamlesh Kumar which fact also stands admitted by the said constable when examined in the Court. Recovery from the accused stands proved and duly corroborated by PW1 aforesaid. However in cross examination, he had stated that it took about four hours to complete the entire proceedings and the police party remained there on the spot during the whole night as they had put picketing there and returned to police station next morning. But Investigating officer PW8 ASI Ranjt Singh stated about arrival in the police station at 10.40 p.m. He prepared inventory memo and the case property was produced by him before PW9 ASI Sadanand to which he verified. He in cross examination also stated that this case property, was produced before ASI Sadanand at 10.40 p.m. but perusal of inventory Ext. PW3/A shows that on 26.10.2007 it was prepared at 1.50 p.m. in the police station and the same was handed over to ASI Sadanand. This witness was not confronted with the aforesaid document by the accused and further such type of minor discrepancies are bound to occur as the alleged incident had taken place in the month of October 2007 and the witnesses were examined in the Court in the month of July, 2008. An attempt could have been made by the learned Public Prosecutor for refreshing the memory of the witness to seek clarification with the permission of the Court, but even Public Prosecutor failed to discharge his duty earnestly. An attempt could have been made by the learned Public Prosecutor for refreshing the memory of the witness to seek clarification with the permission of the Court, but even Public Prosecutor failed to discharge his duty earnestly. Be that as it may, the documentary evidence on record is quite consistent with respect to this aspect of the case, that police party had reached in the police station during the intervening night of 25/26-10-2007 along with accused and the case property, which was produced before ASI Sadanand at 1.50 a.m. and not only this, case property contained all the three parcels after verification it was re-sealed by the said officer with his seal producing the impression of English letter "A" and he also retained specimen of seal impression Ext. PW2/A, thereafter he is categorical in his statement that it was deposited with MHC, police station Tissa along with sample of seals and NCB forms. For that matter the statement of PW2 Ashok Kumar is also important who has supported the version with respect to sealing process by ASI Sadanand and also that MHC Madan Lal (PW4) categorically stated that on 26.10.2007 at 5.15 a.m. ASI Sadanand had deposited the case property specifying the seal impressions on each of the parcels and its entry in the malkhana register abstract whereof was placed and proved by him as Ext. PW4/A in evidence. Not only that even during the trial, he also identified the case properties Ext. P1 to P3, i.e., all the three parcels to be the same which were deposited by him in the malkhana. 7. Further, we find that the link evidence is also complete. On 26.10.2007 one of the sample parcels was sent through PW5 constable Tilak Raj vide RC No. 54 of 2007 Ext. PW4/B. He also testified that he took sample parcel having seal impression "A" and along with sample of seals, NCB forms and copy of FIR for its deposit in FSL Junga to which he deposited on 29.10.2007. He further stated that so long as case property remained with him, it remained in tact and this fact has not been disputed in his cross examination except putting a vague suggestion that he was deposing falsely. Even the report Ext. PW11/A specifically states its receipt in the laboratory on 29.10.2007 through constable Tilak Raj. He further stated that so long as case property remained with him, it remained in tact and this fact has not been disputed in his cross examination except putting a vague suggestion that he was deposing falsely. Even the report Ext. PW11/A specifically states its receipt in the laboratory on 29.10.2007 through constable Tilak Raj. It was also certified that seal impressions were in tact and tallied with the seal impression sent by the SHO on NCB forms. To this extent, there is consistency in the evidence and the recovery of the alleged stuff stands proved from the accused. 8. The argument that independent witnesses were not associated and examined when they were available and further that Investigating Officer stated about the existence of the shops and even the weights and measure were brought by constable Raj Kiran from some distance at least that person from whom these articles were taken could have been associated as independent witnesses. This argument does not carry any weight because the association of the independent witness against the above factual back ground is not imperative. Further non-examination of Raj Kiran is also not fatal to the prosecution case in any manner. As already stated above, qua the recovery of the alleged stuff from the accused, prosecution witnesses are consistent and worth inspiring confidence. We also did not find that there has been a breach of link from the time of recovery till its deposit in the laboratory. However, despite holding so, we are not convinced that the prosecution has been able to prove that recovered stuff fall within the definition of charas. For that matter, we hereby reproduce result of the examination which is as follows:- "Various scientific tests such as physical, identification, chemical and chromatographic testes were carried out in the Laboratory with the exhibit p/1 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol ion both the sample. The microscopic examination indicated the presence of cystolithic hair in both the sample. Charas is Resinous mass and resin is an ingredient of Charas which on testing was found present. And the quantity of Resin in cannabis plant/charas sample varies from one area to the other area. The microscopic examination indicated the presence of cystolithic hair in both the sample. Charas is Resinous mass and resin is an ingredient of Charas which on testing was found present. And the quantity of Resin in cannabis plant/charas sample varies from one area to the other area. The result thus obtained is given below." ....Charas" A similar report as in hand was examined by the Division Bench of this Court in Sunil 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 Members. Shri A.K. Wasuja Chemical Examiner who has issued the report in the present case was summoned as Court witness in one of the cases in Sunil's case by the learned Single Judge of this Court to seek clarification as to how he had come to the conclusion that examined stuff was charas. 9. From the report reproduced above, the stuff examined was opined to be charas on account of presence of cannabinols, including the presence of tetrahydrocannabinol and he had further stated that charas is a resinous mass and resin is an ingredient of charas which on testing was found present. His report suggested that entire sample mass that was analyzed by him was not resin but some quantity of it was found present in the mass. 10. The present report also suggest that the term used by its author A.K. Wasuja is different from the definition of charas as given in Section 2 (iii) (a) of the Act which is reproduced as hereunder:- '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." 11. 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. 12. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 12. 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. 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. 13. 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. 14. Thus keeping in view the definition of charas and also the report, as discussed above, in the light of Sunil's case (supra), in our considered opinion, prosecution was not able to prove that the stuff recovered from the accused was charas, falling within the statutory definition, as discussed above. Therefore, the appeal is allowed. Accused is acquitted by giving her the benefit of doubt. Consequently, the judgment of conviction and sentence passed by the learned trial Court is set aside. Accused is undergoing sentence, she be set free, if not required in any case. Registry is directed to prepared the release warrant of the accused in conformity with this judgment. 15. Send down the records.