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2019 DIGILAW 362 (JK)

Mohd. Lateef Sheikh v. State of J&K

2019-07-30

RASHID ALI DAR

body2019
JUDGMENT : Rashid Ali Dar, J. 1. Learned Additional Sessions Judge, Anantnag (Special Court under Section 36 of NDPS Act), in terms of judgment dated 09.07.2018, has convicted the appellant herein for commission of offence under Section 8/20(b)(ii)(C) of NDPS Act (for short 'the Act') and sentenced to rigorous imprisonment for a term of eleven years with fine of rupees one lac twenty-five thousand. 2. On perusal of the impugned judgment, it appears that the appellant herein had been arrested on 27.11.2008, when at K.P. Road adjacent to the General Bus Stand, Anantnag, a police party was performing their duties and had received an information through reliable sources that the appellant' herein is involved in the trade of illicit "Bhang leaves" and was taking the same in a bag for selling purposes. On receipt of the information, SP. Headquarter, who had been informed through phone, along with Executive Magistrate visited the spot. A "Nylon Bag" containing 14 Kilograms of "Bhang leaves" was recovered which was seized on spot. A "Nylon Bag" containing 14 kilograms of "Bhang Leaves" was recovered which was seized on spot. Proper it may be to reflect the exact words of report conveyed to Police Station, leading to registration of case: xxxxxxxxxxxxxxxxxx 3. A case had been registered accordingly and the investigation commenced. On conclusion of the investigation, final report was submitted and the appellant herein found prima facie guilty of commission of offence under Section 8/20 Narcotic Drugs and Psychotropic Substances Act (for short the Act). On 12.12.2009, the accused was charged 12.12.2009 with the commission of offences under these provisions of law. Accordingly, on his denial to charge, the prosecution was directed to lead evidence It may be pertinent herein to mention that in the calendar of witness, seven persons have been cited as prosecution witnesses out of which PW (5) Altaf Hussain Khan (SP) and PW (6) Shabir Ahmad Masoodi (Scientific Officer, FSL) have not been examined. 4. Accordingly, on his denial to charge, the prosecution was directed to lead evidence It may be pertinent herein to mention that in the calendar of witness, seven persons have been cited as prosecution witnesses out of which PW (5) Altaf Hussain Khan (SP) and PW (6) Shabir Ahmad Masoodi (Scientific Officer, FSL) have not been examined. 4. Before learned trial court, the grounds raised on behalf of the appellant had been: (i) Mandatory provisions of Section 52 and 57 of the Act have not been followed; (ii) There has been infraction of Section 43 of the Act; (iii) There being no independent witness and so the search and seizure stood vitiated and the credibility of the prosecution witnesses who were police personnel stood shacked; (iv) The substance allegedly recovered from the appellant not being contraband within the meaning of the Act; (v) Non examination of material witnesses i.e. PW(5) Altaf Hussain Khan (SP) and PW(6) Shabir Ahmad Masoodi (Scientific Officer, FSL) being fatal for the prosecution case; (vi) There being no evidence available before the learned trial court as to the reliability of the report submitted on behalf of FSL and there being also non-compliance of Section 510 Cr.P.C., the appellant could not be convicted. 5. The learned trial Judge considered the entirety of the evidence and by the judgment dated 09.07.2018 found the appellant guilty of commission of offence under Section 8/20(b)(ii)(C) of NDPS Act. By order dated 18.07.2018, the appellant has been sentenced to rigorous imprisonment for a term of eleven years with fine of rupees one lac twenty-five thousand. Aggrieved thereby, appellant has filed the present appeal. 6. In the memo of appeal, the said grounds along with few more raised before the learned trial court have been reiterated. It would also be proper herein to have brief narration of the same: (i) The impugned judgment of conviction and sentence is absolutely perverse and based on no evidence whatsoever as it is the basic principle of Criminal Jurisprudence that suspicion howsoever grave it may be, cannot take place of proof, and there is a large difference between something that may be proved and will be proved. The mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not substitute for legal proof. The mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not substitute for legal proof. The gap between "may be" true and "must be" true, must be bridged by clear, cogent and unimpeachable evidence produced by the prosecution before an accused is condemned as a convict. The basic and golden rule governing the subject is while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital difference between conjectures and sure conclusions to be arrived at, on the touch stone of dispassionate judicial scrutiny based upon a complete and comprehensive apprehension of all features of the case as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and in case the facts and circumstances of a particular case so warrant, then the benefit of doubt must be given to the accused, keeping in mind that fear doubt is based upon reason and common sense. (ii) The Trial Court has acted in a hasty manner and has wrongly appreciated the evidence on record. The very basis of the prosecution case is not only defective but also based on mutually destructive premises. The Trial court has not considered an important aspect of the matter with respect to the defects and lacunas in the prosecution case. The star witness of the witness which has to be the PW-1 (Author of the docket/FIR) and the only witness whose statement was recorded under Section 164-A Cr.P.C., have absolutely failed the prosecution case. It is glaring in the record that the statement of the said star witness made under Section 161 Cr.P.C., on the day of occurrence itself i.e. 27-11-2008 is at variance in material particulars with the contents of the written docket which has been sent to P/S for registration of FIR. It is worthwhile to mention that the author of the FIR is an important witness who cannot afford to faultier to the colossal limits and expect the prosecution case to succeed. It is worthwhile to mention that the author of the FIR is an important witness who cannot afford to faultier to the colossal limits and expect the prosecution case to succeed. There are 2 different stories narrated by the PW-1, one in the docket sent for registration of FIR on 27-11-2008 which has been exhibited as EXPW-1, dated 25-03-2010 and the second in his statement recorded under Section 161 Cr.P.C. on the same date i.e. 27-11-2008. To gloss over it all the PW-1 narrated a yet another story in his statement recorded during trial. (iii) In the docket, the PW-1 has stated that he has received information from reliable sources that the accused was taking bung leaves for illegal trade in a bag whereupon he informed in charge Police Post and S.P. on phone and also informed Executive Magistrate Anantnag on phone to come on spot. On arrival of S.P. on spot, the said witness along with other persons nabbed the accused on spot and recovered 1 bag of about 14 Kilograms of "bhang leaves" and seized the same and thereafter sent the docket for registration of FIR. (iv) In the statement under Section 161 Cr.P.C., PW-1 has stated that he while on duty saw a person with a white colour bag on his shoulder in suspicious circumstances whereupon he received information that the said person is involved in illicit trade of bung and Charas. He along with other persons stopped the accused and searched the bag and the bung was recovered and seized. Thereafter he informed in Charge Police Post and also S.S.P. Anantnag and Executive Magistrate Anantnag on phone who later on came on spot. (v) In the statement recorded during trial though the witness has tried to play safe but he has totally stated at variance with the contents of the FIR/docket. In the statement recorded trial, the witness has admitted to have arrested the appellant on spot and also searched him before informing his superior officers which story is a total negation of the contents of FIR/Docket. The trial court has not taken note of self-destructive evidence of the prosecution. (vi) The trial court has not taken into account that the search and seizure of the contraband has not been made in accordance with law nor the sampling and sealing of the contraband has been made in accordance with rules. The trial court has not taken note of self-destructive evidence of the prosecution. (vi) The trial court has not taken into account that the search and seizure of the contraband has not been made in accordance with law nor the sampling and sealing of the contraband has been made in accordance with rules. The seizer memo mentions the sealing of the contraband on spot. But the seal has neither been preserved nor any seizure or any memo has been prepared with respect to the seal. The seizure memo does not bear the time nor any date which is not only material but a fatal lacuna in the prosecution case. (vii) It is admitted by one and all the prosecution witness that the accused/appellant was nabbed, arrested, searched and seizure was made at a public place frequented by large No. of people at the time of the occurrence. But the prosecution has not joined any independent witness in the calendar of challan nor any such witness has been examined. It is the established principle of law that the prosecution should examine all those who have witnessed the occurrence and in case without any justification the prosecution fails to join and examine independent witnesses, an adverse inference has to be drawn against the prosecution in terms of Section 114 (G) of the Evidence Act which lays down the general rule that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This is the solemn duty of the prosecution which cannot be brushed aside lightly. The PW-7 has made an attempt to explain this plea by stating that independent witnesses have refused his request to join the prosecution as a result of which the independent/civilian witnesses were not joined. This is not sufficient to absolute the prosecution from its solemn absolute the prosecution from its solemn duty mentioned the names of the civilian witnesses who have allegedly turned down the request of PW-7 to join the prosecution and PW-7 has further failed to explain as to whether he has exercised his powers in terms of Section 160 and 161 Cr.P.C. in relation to the said civilian witnesses. In absence of detailed steps taken in this behalf, the bald assertion of PW-7 is a failed attempt to absolve the prosecution from their failure to join independent/civilian witnesses of the occurrence. In absence of detailed steps taken in this behalf, the bald assertion of PW-7 is a failed attempt to absolve the prosecution from their failure to join independent/civilian witnesses of the occurrence. Hence the entire prosecution story has reasonably failed to bring home the charge to the appellant/accused. (viii) The quality of the prosecution evidence is not of such a standard which would support the impugned judgment of conviction and sentence. In order to sustain conviction, the prosecution witnesses have to be of high quality and calibre whose version is acceptable in its face value. Such a witness is called sterling witness. What makes a witness sterling in nature is the truthfulness and consistence of his statement from the starting point till the end. It must be free of prevarications. His version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence, the scientific evidence and the expert opinion. His statement must be so consistent to match a complete chain of circumstantial evidence will support conviction. However, in the present case the prosecution witnesses have given statements which are self-contradictory and the statement of prosecution witnesses are at variance with each other. (ix) The trial court has wrongly relied upon the statement of the accused/appellant recorded under Section 342 Cr.P.C. to fill up the gaps and lacunas in the prosecution case. This is no more res-integra that statement of the accused under Section 342 Cr.P.C. is neither evidence nor the same can be used against the accused in any manner whatsoever. (x) All the prosecution witnesses are interested witnesses who though not having any animosity with the accused [ae] nonetheless having an interest in seeing the accused convicted. The PW-1 to 3 being members of the Naka Party who actually nabbed the accused/appellant as per the prosecution case they have definitely an interest in depositing against the accused/appellant. It is a matter of common knowledge that not only false incrimination but even fake encounters being used to proceed ahead in the ladder of promotion by unscrupulous police officers. This possibility cannot be rolled out. The important and independent witnesses like a third party disinterested and unrelated witness such as the bystander of passer by have been held to be most important witnesses in a case. This possibility cannot be rolled out. The important and independent witnesses like a third party disinterested and unrelated witness such as the bystander of passer by have been held to be most important witnesses in a case. Such witnesses having being available but deliberately not joined as witness is a telling commentary on the doubtful nature of the prosecution case. (xi) The prosecution evidence is full of contradictions, variances and prevarications. The contradictions are not cosmetic in nature but substantial and with respect to the core particulars of the prosecution case. (xii) The arrest memo on record of the case is a sad commentary on the illegal exercise of powers by the police concerned. The arrest memo does not mention time of arrest. Besides, it does not certify as to whether the appellant/accused was apprised of his rights at the time of the arrest. The accused/appellant has neither been informed about his right of having any of his relatives informed nor the appellant was informed about the grounds of his arrest. The arrest of the accused/appellant has been made in violation of the directives issued by the Hon'ble Supreme Court in celebrated case of Joginder Kumar Versus State of U.P. and others. (xiii) The arrest, search and seizer of the accused person has been made in violation of the Section 42, 50 and other provisions of NDPS Act. It is worthwhile to mention that the NDPS Act is a sort of strict liability law wherein near possession of a contraband is made penal in nature. In view of the gravity of the offence and the harsh punishment it entails, strict compliance with the provisions of NDPS Act was mandatory. As the prosecution claim to have prior information about the accused being in the process of transporting contraband, it was bounden duty of the concerned police to have intimated their superior officers in writing which has not been done. Besides, search and seizer of he accused which is doubtful in fact has not been conducted in accordance with the Section 42 and 50 of the NDPS Act. 7. Learned counsel appearing for the appellant while being heard emphatically contended that the judgment rendered by the learned trial court requires to be set aside. He, in particular, placed reliance on the following judgments: (i) State of J&K v. Jarnail Singh & Ors., 2018 (1) JKJ 179 [HC]. 7. Learned counsel appearing for the appellant while being heard emphatically contended that the judgment rendered by the learned trial court requires to be set aside. He, in particular, placed reliance on the following judgments: (i) State of J&K v. Jarnail Singh & Ors., 2018 (1) JKJ 179 [HC]. (ii) Sri Pramod Jha v. State of West Bengal, 2008 (1) CHN 710 . (iii) Edmund S. Lyngdoh v. State of Meghalaya; 2016 (15) SCC 572. (iv) Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467 . (v) 2006 (3) JKJ 136 [HC] Sher Singh Alias Shera v. state of J&K, 2007 (1) SLJ 126. (vi) Sukhdev Singh v. State of Haryana, 2013 (2) JKJ 99 [SC]. (vii) Jamal Din v. State of J&K, 2018 (1) JKJ 230 [HC]. (viii) Vinod Kumar v. State of Punjab JKJ Soft JKJ/29881, (2015) 3 SCC 220 . 8. On the other hand, Mr. Shah learned Sr. AAG, appearing on behalf of the respondent, submitted that the pleas raised on behalf of the appellant were devoid of any merit. It is being submitted that the recovery has taken place on a public way and so plea raised about compliance of Section 42 and 50 of NDPS Act is fallacious, more particularly when the substance was not recovered from the person of the appellant. It would be only when the person of the suspect is to be searched, the mandate of Section 50 has to be complied with. In the instant case, recovery has taken placed from a bag which was in possession of the appellant and so the reliance placed on the compliance of Section 50 is misplaced. 9. It is also the submission of Mr. Shah that the learned trial court has rightly supported its findings from assertion made by the appellant on his explanation in terms of Section 342 Cr.P.C. It is stated by the appellant in the statement under Section 342 Cr.P.C. that it was the bag which was recovered at the relevant point of time and so prosecution was not required to prove it by any further evidence. Witnesses examined by the prosecution clearly sound that the appellant herein had been in possession of the "bhang". 10. Similarly, the plea raised about non-compliance of Section 510 Cr.P.C., according to Mr. Witnesses examined by the prosecution clearly sound that the appellant herein had been in possession of the "bhang". 10. Similarly, the plea raised about non-compliance of Section 510 Cr.P.C., according to Mr. Shah, is also improper as the said provision clearly indicates the report to be admissible in evidence without examining of its author. The plea raised about nature of the contraband is also termed to be without any substance as the definition of 'Cannabis' in terms of Section 2(iii) of the Act clearly provides that 'leaves' do fall within the ambit of the Act. 11. We have considered the rival arguments. It is an admitted feature of the case that the recovery which allegedly took place on spot was "bhang kay Patay" "bhang leaves" being carried in a sack . In the seizure memo, EXPW-3, particulars of container in which it was packed is given "safaid nylon bori". Further details are not given as to whether contents had "resin", if any and whether it was 'crude' or 'purified' or it contained 'flowering' or 'fruiting tops' of the 'cannabis' plant. 12. The memo of sample of recovered substance if any prepared on spot and intended to be sent to FSL for examination is neither available on file nor the Investigating Officer states that it was prepared, yet reference of it is found in the judgment of the trial court and it i" sounded" to have been received by Forensic Laboratory and analysed by PW (6) (who was not produced before the trial court as a prosecution witness). 13. In the FSL report, description of the sealed packet, which is stated to have been received in FIR No. 408/2008, is given by noting the number and date of the communication of Dy. SP Headquarter, Anantnag, dated 04.12.2008. The packet is stated to have been received through Ab. Hamid Head Constable. Admittedly, said Head Constable has neither been cited nor examined as a prosecution witness. 14. In the said packet "charas" is noted by PW 6 to have been detected. SP Headquarter, Anantnag, dated 04.12.2008. The packet is stated to have been received through Ab. Hamid Head Constable. Admittedly, said Head Constable has neither been cited nor examined as a prosecution witness. 14. In the said packet "charas" is noted by PW 6 to have been detected. However, having regard to absence of the 'memo of sample' of recovered substance of the allegedly recovered substance coupled with the factum of non-citing of Abdul Hamid Head Constable as a witness, it would be risky to accept the opinion of the trial court that sample of the recovered substance was prepared by the investigating agency and transmitted to FSL for examination, after however, believing the other part of the version of the prosecution that the alleged recovery has taken place and same was "Cannabis" within the meaning of Clause (iii) of Section 2 of the Act. 15. The indication in the judgment of the learned trial court that as per Section 510 Cr.P.C. of the J&K Criminal Procedure Code, the report which was tendered by the chemical examiner can be considered as evidence, even if assumed to be so, would not lead thus to an inference that the sample analysed by the expert originated from the recovered substance or that the report was framed thereon. 16. Section 510 of J&K Cr.P.C. permits the report of the chemical examiner to be used as evidence during enquiry or trial. Relevant provision in the Central Criminal Procedure Code in this regard is Section 293, which reads as under: "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. (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 applies to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of-Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkine 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. (Emphasis supplied) 17. Proper it may be to have a glance of Section 510 of the J&K Cr. P.C: "510. Report of Chemical Examiner. -(1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or the Chief Inspect of Explosives or the Director of Finger Print Bureau or an Officer of the Mint, 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, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the subject matter of his report." 18. Section 510 of the State Code, as seen, although deals with the same matter with which Section 293 deals, does not contain the similar text. As noted hereinabove, Section 293 of Central Code recites the names of the officers who are covered by this section. 19. While interpreting Section 510 of the State Code and what value a report of an expert has, a Division Bench of this Court in para 14 and 15 of the judgment in " 2006 (3) JKJ 32 [HC] Mohd. Yaqoob v. State of J&K" (2007 (I) S. L. J. 280), has observed: "14. 19. While interpreting Section 510 of the State Code and what value a report of an expert has, a Division Bench of this Court in para 14 and 15 of the judgment in " 2006 (3) JKJ 32 [HC] Mohd. Yaqoob v. State of J&K" (2007 (I) S. L. J. 280), has observed: "14. Learned trial Court appears to have relied upon the report of Mr. K.K. Raina with the aid of Section 510 of the Code of Criminal Procedure to hold it admissible in evidence. We are not inclined to agree with this finding of learned trial Court on this aspect of the matter too. This is so, because the report of Mr. Raina, who has been shown to be a Scientific Officer, was not admissible in evidence under Section 510 of the Code of Criminal Procedure because Section 510 does not make the report of a Scientific Officer admissible in evidence. This apart, even if one were to accept this report and to take it as an evidence in the case, it could not have been so done unless the prosecution had proved that the articles/material, on which the expert report had been sought for, had been duly submitted to him for examination or analysis. Expression 'duly submitted to him for examination' appearing in Section 510 of the Code of Criminal Procedure, is not merely surplusage, which could be ignored. It is only when a matter was duly submitted to an expert and proved to be so submitted, that the evidence of the expert as mention in Section 510 of the Code of Criminal Procedure, would become admissible in evidence. (emphasis supplied) 15. We are further not satisfied with the finding of the learned trial Court that the hair strands of the accused and those in the hands of deceased had matched, because the report of the Scientific Officer was neither admissible in evidence and nor the hair strands too had been proved to have been sent to the expert for examination. The investigating Police Officer having not been produced as the prosecution witness in the case, there was no occasion for the trial Court to have relied upon the report of the Scientific Officer, so as to treat it as evidence in the case. The investigating Police Officer having not been produced as the prosecution witness in the case, there was no occasion for the trial Court to have relied upon the report of the Scientific Officer, so as to treat it as evidence in the case. The sending of the material/articles alleged to be blood stained and the hair strands, was required to be proved by the Investigating Officer, who had been alleged by the prosecution to have sent these things to the Forensic Science Laboratory. Learned trial Court has, thus, erred in relying upon the report of the Scientific Officer, which report was not admissible in evidence. This having not been proved, because of the omission of the prosecution to produce the Investigating Police Officer, the report of the Scientific Officer could not have been admitted in evidence, unless of course, he had been produced as prosecution witness in the case." 20. We have noticed above, that the learned trial court seems to have been influenced by a mere submission made on behalf of the State that the sample were sealed and packed properly and mark of bolt was put on it and thereafter samples were properly sent to the FSL for expert opinion. The trial court, as we have marked above, has ignored to take into consideration the omission on the part of Investigating Agency to cite and examine Head Constable Ab. Hamid as prosecution witness and also the effect of non-examination of PW (5) Altaf Hussain Khan (SP) who is stated to have witnessed the exercise of taking samples from the recovered substance. The communication bearing No. HQA/FSL/16/08/5050-51, dated 04.12.2008, of which reference is found in the report of FSL expert and stated to have been forwarded by Dy. Superintendent of Police (Hqrs.) Anantnag, too has not been proved. Lapse on the part of prosecution on such vital aspect does not find any answer in the judgment of the trial court. Even perusal of trial court record does not reflect the communication so referred having been enclosed with the final report submitted matter before court under Section 173 Cr.P.C. We, thus, find the judgment of the trial court being not in accordance with the principles of law laid down in this regard. The judgment of the Division Bench of this Court referred above has totally escaped the attention of the Id. Trial court. The judgment of the Division Bench of this Court referred above has totally escaped the attention of the Id. Trial court. Taking support of opinion of FSL expert for concluding that the recovered substance has to be treated as 'Cannabis' is thus palpably erroneous. Reference or reliance on the judgment based on Central provision is also misplaced. 21. To say at the cost of repetition, the non-examination of the persons referred above (FSL expert, Head Constable Abdul Hamid and Dy. SP Headquarter noted in the communication of FSL expert) makes the situation murky. It points out towards no serious effort having been made by the prosecution to prove the charge against the appellant. The principle of law referred by the trial court laid down in "Bhaskaran v. State" ( 1967 KLT 165 ), and other related cases under Central Code had no application to the facts of the instant case and so ought not to have been relied on by the trial court in the fact situation. 22. Could the answer found in the examination under Section 342 Cr.P.C. be taken as a substitute of the obligation cast on the prosecution to prove the case beyond reasonable doubt. This requires a brief analysis here. We would like to emphasize the underlying purpose of this provision in Code, without encroaching the 'right of silence' of the accused during the criminal trial. It enables the trial court to have a direct dialogue with the accused. Just as a matter of fair play, the accused is asked to explain the incriminating material brought forth by prosecution. We cannot substitute it for the requirement to have evidence of prosecution, to prove a charge against the accused beyond reasonable doubt. 23. It would be an abuse of Section 342 Cr.P.C. if we allow the prosecution to be casual in discharge of its duty to prove a criminal case beyond reasonable doubt and fall back upon an assertion made by accused in his reply without reference to the context in which it was made and segregate a part of it. We have noticed that the appellant does not state having been found in possession of 'charas' at the relevant time. He does not say anything about the form of leaves. Prosecution witnesses too do not state it contained 'flowering and fruiting tops. We have noticed that the appellant does not state having been found in possession of 'charas' at the relevant time. He does not say anything about the form of leaves. Prosecution witnesses too do not state it contained 'flowering and fruiting tops. We do not thus feel it was proper for the trial court to infer that accused admitted it was 'Bhang' so it has to be assumed as being 'Cannabis' and having a content of 'Charas' in it. 24. Examining the same from another angle, we do not see the reply given to the question put forth to the appellant in examination under Section 342 Cr.P.C., had been an admission of 'Charas' being transported by him. He has denied that he was transporting the substance attributed to him. It is being put forth that when he was plying the cart, someone had kept a Sack on it wherefrom 'Bhang' was recovered. Having regard to the substance of the answer, it cannot be said it was an unqualified admission so as to assume -that it was 'Cannabis' which was being carried on the cart by the appellant. 25. Pertinent it may be to note that the Act defines 'Cannabis' as: (iii) "cannabis(hemp)" means- (a) Charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also including concentrated preparation and resin known as hashish oil or liquid hashish; (b) 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; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom. 26. In "Arjun Singh v. State of Haryana" reported in 2005 CRI. L. J. 253, (Punjab and Haryana High Court) accused Arjun Singh had filed appeal against the judgment dated 27.07.2002 passed by Additional Sessions Judge, Rohtak, in terms of which he had been convicted under Section 20-B of the Narcotic Drugs and Psychotropic Substances act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1 lakh (rupees one lac). In the said case, as per prosecution version, 151/2 Kgs of hemp (bhang) was recovered from the possession of the appellant therein when he was travelling in a train. 1 lakh (rupees one lac). In the said case, as per prosecution version, 151/2 Kgs of hemp (bhang) was recovered from the possession of the appellant therein when he was travelling in a train. The Punjab and Haryana High Court, while placing reliance on the three judgments in Gurdal Singh v. State of Punjab, (2002 (3) Rec Cri. R (Cri) 334); Manjee v. State of Rajasthan (1996 Cri LJ 3787) and Samid v. State of U.P. (1995 All LJ 1108), in para 5 of the judgment observed as under: "5. After hearing the arguments of the learned counsel for the parties, I am of the opinion that this appeal deserves to be allowed and the conviction and sentence of the appellant are liable to be set aside. In all the aforesaid three judgments, it has been held by different High Courts, including this court, that bhang (hemp) does not fall under the definition of cannabis (hemp) as defined under Section 2(iii) of the Act. Thus, its possession does not constitute an offence punishable under the Act." (Emphasis supplied) 27. Similarly, in "Sevaram v. State of Rajasthan", 1993 CRI.L.J. 2503, a first information report was registered on 30-9-1991 by the Patrolling Officer of the Custom Department against the accused appellant therein alleging that on 29-9-1991 when he was patrolling with his team in the cattle fair, Deedwana, on search from plastic bag 2 totals of 'Bhang' was recovered from him and thereafter from village Nimod about 750 gms. dry leaves of Bhang were recovered. A sample of 30 grams of Bhang was sent for chemical examination and on examination it was found to be 'Bhang'. A challan was filed against the accused appellant under Section 8/20 of the NDPS Act, 1985, in the court of Munsiff and Judicial Magistrate, Ist Class, Deedwana who committed the case to the court of Addl. Sessions Judge, Nagaur. Charge was framed against the appellant under Section 8/20 of the N.D.P.S. Act, the appellant therein confessed the offence and submitted that he does not want to fight the case. After conclusion of the trial, the learned Addl. Sessions Judge found him guilty for the offence/and convicted and sentenced him 10 years' rigorous imprisonment within a fine of rupees one lac and in default of payment of fine, to further undergo two years' rigorous imprisonment. After conclusion of the trial, the learned Addl. Sessions Judge found him guilty for the offence/and convicted and sentenced him 10 years' rigorous imprisonment within a fine of rupees one lac and in default of payment of fine, to further undergo two years' rigorous imprisonment. The judgment was challenged before Rajasthan High Court in an appeal under Section 374 Cr.P.C. Rajasthan High Court in para 8 of the judgment observed as under: "8. In the instant case, as stated above as per the case of prosecution from the appellant 2 tolas of Bhang (Sukhi Pati) and later on from village 750 gms. dry leaves of Bhang were recovered. According to Section 2(iii) of the NDPS Act the alleged Bhang and dry leaves recovered from the appellant can be said to be a cannabis plant and if the case of the prosecution is accepted as such then also the conviction of the appellant under Section 8/20 is not sustainable for the simple reason, that the Legislature in its wisdom has excluded the seeds and leaves when not accompanied by tops from the purview of N.D.P.S. Act. However, flowering and fruiting tops have been included in the N.D.P.S. Act. Moreso, the prosecution has not come out with a case that the appellant was cultivating cannabis plant and the only case against the appellant is that dry leaves of the cannabis plant were recovered which has already been excluded. In view of this, the conviction of the appellant under Section 8/20 is not sustainable in the present case. The same view has been expressed in Daulat Ram v. State (supra). That apart, the appellant is 70 years old and he has stated that he is suffering from piles. He has also admitted that he was taking 'Bhang' (Sukhi Patti) as medicine for his personal use for the last 20 years and prosecution has not place any material otherwise on record. On this count also, the appellant cannot be convicted as he was addict to Bhang (Sukhi Patti) which has already been excluded from the purview of the NDPS Act as stated above and further if a person keeps Bhang i.e. leaves of cannabis plant for his personal use, then also he cannot be held guilty in view of Rule 24 of the Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985." 28. Analysing the impugned judgment of the trial court in the light of what is stated above, we are of the opinion that the conclusion drawn by the learned trial court was not permissible under law. We need not to delve upon or consider other grounds raised in the memo of appeal. Missing links in the prosecution case, noted above, between the alleged recovery, its seizure, samples if any prepared, custody of sample after its preparation, explanation as to who handed over same to Dy. SP HQ and thereafter to Ab. Hamid Head Constable, what sample exactly Ab. Hamid took to FSL are conspicuous and erodes the credibility of prosecution case. Furthermore, as noted above, the Bhang, unaccompanied by flowing and fruiting tops itself do not fall within the definition of 'Cannabis'. All taken together do vouch to hold that there has been failure on the part of prosecution to prove charge against the appellant. The learned trial court has thus erred in convicting the accused-appellant for the commission of offence under Section 8/20(b)(ii)(C) of NDPS Act, on the premises that he was transporting 'Cannabis' within the meaning of the Act. 29. In the upshot, appeal is allowed and the judgment of the learned trial court is held liable to be set aside and is, accordingly, set aside. The appellant is acquitted of the charge for commission of offence under Section 8/20(b)(ii)(C) of NDPS Act and shall be released forthwith, unless, of course, he is not required/wanted in any other case. 30. Trial court record along with copy of this judgment be sent back.