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Himachal Pradesh High Court · body

2019 DIGILAW 261 (HP)

Vishambhar Isiah Striesand v. State Of H P

2019-03-13

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The instant petition has been instituted by the bail petitioner under Section 439 Cr.P.C, for, his being ordered to be released from judicial custody, wherein, he is extantly lodged for his allegedly committing offence(s) punishable under Sections 20, 21 and, Section 25 of ND&PS Act, in respect whereof, FIR No. 30 of 2017 of 17.2.2017, is lodged, at Police Station Manali, District Kullu, Himachal Pradesh. 2 . The Investigating Officer has recovered, from the alleged conscious and exclusive possession of the bail-applicant, hence contraband, nomenclatured as ''Ganja''. The weight of the afore ''Ganja'' is more than 100.20 kg, hence, renders it to fall within commercial quantity thereof. The learned counsel for the bail-applicant, while alluding, to, the definition of ''Ganja'' as, occurring in Section 2 (iii) (b) of the NDPS Act, provisions whereof stand extracted hereinafter:- "ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated;" (i) and hence thereupon contends, with much vigor, before this Court, that, ''Ganja'' includes only flowering or fruiting tops of cannabis, and, excludes the seeds and leaves. (ii) He further proceeds to contend, that, the learned Chief Judicial Magistrate concerned, had inspected the relevant seizure, and, in his report has mentioned, that, the substance/contraband, recovered from the purported conscious and exclusive possession, of, the bail-applicant, rather, carrying only seeds and leaves, (iii) thereupon he proceeds further to make submission before this Court, that, when seeds and leaves are excluded, from, the definition of ''Ganja'', hence, the recovery effectuated from the purported conscious and exclusive possession, of, the bail-applicant being not, of, ''Ganja'', and hence, the indulgence of bail be granted to the bail-applicant. 3 . 3 . However, for the reasons to be recorded hereinafter, his submission is straightway rejected: (a) a bare reading of the inspection report, reflects, its being in dis-concurrence, vis-avis, the report of the FSL concerned, wherein, the expert concerned, has, reported that the stuff as examined, is ''Ganja'', (b) the afore definition of, ''Ganja'', standing read in, a, piecemeal manner, by the learned counsel for the bail-applicant, in as much as, though the mandate borne therein enshrines qua seeds and leaves being excludable, for the relevant purpose, yet, with a further rider, that the apt exclusion, of, seeds and leaves, is, to be made, only when, they are not accompanied "by the tops". Consequently, when the CJM concerned hence proceeded to make the afore report, given his merely carrying a visual inspection thereof, and, with his being not possessed, with, the instruments concerned, and, contrarily, with the report of the FSL concerned, the relevant portion thereof is extracted hereinafter, rather with specificity,:- " GANJA Various scientific tests such as physical identification, chemical and chromatographic analyses were carried out in the laboratory with the exhibits stated as ganja in cloth parcels marked as mark-A & Mark-B, with representative & homogeneous samples. The above tests performed indicated the presence of cannabinoids including the presence of tetraphydrocannabinol in both the exhibits. The microscopic examination indicated the presence of characteristic cystolithic hairs in both the exhibits and Ganja specific colour test indicated the presence of Ganja in both the exhibits. The result thus obtained in given below:- The exhibits stated as ganja in cloth parcels marked as Mark-A & Mark-B are samples of Ganja." (i) hence illustrating qua various scientific tests, including microscopic examination of the contraband rather being conducted thereon, and, thereafter, it, recording a conclusion qua the presence of ''Ganja'' occurring in the exhibits, sent to it, for analyses, (ii) thereupon the report of the FSL concerned, enjoys statutory vigor, as, enshrined in Section 293 of the Cr.P.C., it, being prepared by the Assistant Director, and, when the afore report, of, the FSL, is, appended with the challan submitted, before the Court concerned, thereupon with, the, mandate of Section 294 Cr.P.C. also making, a, clear statutory contemplation, that, the documents appended with the challan being construable to be genuine, inclusive, of, occurrence of signatures thereon, hence, sanctity is to be meted to it. The provisions of Section 293, and, of Section 294 Cr.P.C. are extracted hereinafter:- "293. Reports of certain Government scientific experts.-. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applied to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant chemical Examiner to Government; [(b) the Chief controller of Explosives; (c) The Director of the finger Print Bureau; (d) the director, Haffkeine Institute, Bombay; (e) the Director [Deputy Director or Assistant Director] of a Central forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government. (g) any other Government scientific expert specified, by notification, by the Central Government for this purpose.]" 294. No formal proof of certain documents.- (1) where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved." 4 . (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved." 4 . The learned counsel for the bail-applicant, does not, contest the report of FSL or validity, of, signatures borne thereon, hence the report of the FSL, made, upon the relevant, exhibits, and, it carrying a clear pronouncement, qua, the stuff examined, being ''ganga, thereupon at this stage, prima facie sanctity is to be ascribed to it, and, in case the counsel for the bail-applicant opts to cast a challenge thereon, he holds, the, relevant opportunity, not at this stage, rather at the stage when the author of the report, steps into the witness box. 5 . The report of the FSL, unveils, that the exhibit sent for analyses to it, also carrying, the seal impression(s), as, embossed thereon by the CJM concerned, who also carried, a, visual inspection, of, the seized substance, hence, the learned counsel for the bail-applicant, is, precluded to contend, that, the report of the FSL, is, not amenable for any credence being meted to it, at this stage, it not standing connected with the seizure, as, occurred at the relevant site. 6 . The learned counsel for the bail applicant also contends, on anvil of a verdict, pronounced by Coordinate bench of this Court, wherein, co-accused, in the instant FIR, was, granted the facility of bail, and, that in parity therewith, the, indulgence of bail be also granted to the bail-applicant. The afore submission, is rejected as the co-accused, was, granted the indulgence of bail, merely, upon his renting the relevant premises, to, the bail-applicant, (a) and, further when the Investigating Agency in its final report filed, under, Section 173 of the Cr.P.C., had found him guilty, of having committed offence punishable under Section 25 of the NDPS Act, and, not under Sections 20 and 21 of the NDPS Act, (b) and moreover, while deciding Cr. Revision No. 152 of 2018, the, coordinate Bench has observed that the learned trial Court, has erred in framing charges in, a, most casual and caviler manner, and, has set aside the order of 28.10.2017, thereupon the claim for parity therewith reared by the bail-applicant, is, mis-placed. 7 . There is no merit in the instant bail application and the same is rejected. 8 . Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.