Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 158 (HP)

Ram Singh v. State Of Himachal Pradesh

2020-02-20

ANOOP CHITKARA

body2020
JUDGMENT Anoop Chitkara, Vacation J. - For possessing 1.114 Kilograms of Charas, the petitioner, who is under arrest, on being arraigned as an accused in in FIR number 09/2019 registered under Sections 20-61-85 of Narcotics Drugs and Psychotropic Substances Act, 1985 , dated 7.2.2019, in the file of Police Station Shillai, District Sirmour, HP, disclosing non-bailable offences, has come up before this Court under section 439 CrPC , seeking regular bail. 2. The status report filed. I have seen the status report(s) as well as the police file to the extent it was necessary for deciding the present petition, and the same stands returned to the police official. I have heard Mr. Sunil Chauhan, learned counsel appearing for the petitioner and Mr. Narender Guleria, learned Additional Advocate General for the respondent/State. 3. Ld. Counsel appearing for the petitioner contends that although the total weight of the contraband allegedly recovered is 1.114 k.g. but the percentage of resin would bring it below the commercial quantity. Resultantly, rigors of Section 37 of Narcotic Drugs and Psychotropic Substances Act will not attract. The submission of the counsel for the bail petitioner is that percentage of resin is to be considered and not the entire bulk. He further submitted that if resin is considered then it would fall below 1 kg, which is less than commercial quantity. Facts: 4. The gist of the First Information Report and the investigation is as follows: a) The case of the prosecution is that more than one kg Charas has been recovered from the possession of the bail petitioner, which as per police is a commercial quantity under Section 20 (ii) (C) of Narcotic Drugs and Psychotropic Substances Act. b) That on 7 th February, 2019, the Police party was on patrolling to detect the crime and to stop the same. When the Police party reached near a rain shelter situated 5 Kilometers ahead Shillai towards Timbi, then at 7:55 p.m. , they noticed one person carrying a back pack and standing near the shelter. Noticing such person standing alone in the cold night raised suspicion and then ASI asked him that what he is doing there in such a bad weather. The moment such person noticed the Police officials, he became perplexed and started running towards the backside of the rail shelter. After that, suspicion arose in the mind of the Police and they nabbed him. The moment such person noticed the Police officials, he became perplexed and started running towards the backside of the rail shelter. After that, suspicion arose in the mind of the Police and they nabbed him. They asked him about the contents of the bag, but he could not reveal. On inquiring, he disclosed his identity as Ram Singh, the petitioner herein. On search of the bag, the Police recovered brown coloured substance in the shape of sticks, which on smelling and on the basis of experience was found to be Charas. On weighing the same, it was found to be 1.114 Kilograms. Reasoning : 5. In the status report, the Police did not mention about any criminal history of the bail petitioner. 6. In the status report, the reference has been made to report of State Forensic Science Laboratory, Junga. Expert after conducting Scientific Chemical Test, gave his opinion as follows: 'the quantity of purified of resin as found in the exhibit stated as Charas is 33.24 % w/w. The exhibit is extract of cannabis and sample of charas'. a) In State of H.P. v. Mehboon Khan (FB), 2014 (2) RCR (Criminal) 447 , holds as follows, 'Para 55. d. There is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sunil's case that for want of percentage of tetrahydrocannabinol or resin contents in the samples analyzed, the possibility of the stuff recovered from the accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an offence, cannot be ruled out', is not a good law nor any such interpretation is legally possible. The percentage of resin contents in the stuff analyzed is not a determinative factor of small quantity, above smaller quantity and less than commercial quantity and the commercial quantity. Rather, if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but less than commercial and commercial, in terms of the notification below Section 2 (vii a) and (xxiii a) of the Act. Rather, if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but less than commercial and commercial, in terms of the notification below Section 2 (vii a) and (xxiii a) of the Act. e. We have discussed the Single Convention on Narcotic Drugs, 1961 in detail hereinabove and noted that resin becomes cannabis resin only when it is separated from the plant. The separated resin is cannabis resin not only when it is in `purified' form, but also when in `crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in `crude' form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.' f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that "mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in `crude' form or `purified' form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for `charas' under the Act.' b) In view of this pronouncement of Full Bench, the controversy is no more res-integra . The definition of Charas as per mandate of Section 2 (iii) is :- '2 (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 includes 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), (c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom; c) It is clear that as per Section 2(iii) (a) Charas is the resin in whatever form whether crude or purified, provided such resin has been obtained from the Canabis plant. It is common knowledge that Charas is made when resin is separated from flowering tops/ leaves of cannabis plant. That is why, Legislature, used the word 'separated resin'. Now when resin is separated from the flowering tops as well as leaves of the cannabis plant, it would be crude or purified, depending upon the procedure adopted for such process. If the process for separating resin is scientific and done in good chemical laboratory or done by experts using modern instruments, then the resin so separated would be very purified. If the process for separating resin is scientific and done in good chemical laboratory or done by experts using modern instruments, then the resin so separated would be very purified. To the contrary when the resin is separated from the leaves and flowers of cannabis plants by using old age traditions or manual process, like rubbing of body or hands or by splashing on wooden logs or through leather, then such resin would be in crude form. The legislature did not differentiate between the charas whether crude or purified. Therefore, the percentage of resin in cannabis alone is not Charas and prima facie the entire cannabis irrespective of percentage of resin is charas. d) Learned Additional Advocate General has brought to the notice of this Court that one bail application no. CrMP(M) No. 613 of 2019, where the similar question is pending adjudication by a larger bench of this Court. e) Be that as it may, the matter is subject matter of adjudication before the larger bench and it is for the larger bench to adjudicate upon this issue. f) As on date the petitioner has no case for bail because bulk quantity involved is more than 1 kg and resin alone cannot be taken to determine the quantity. 7. Even if all these submissions are accepted to be accurate, still this Court can release a person/accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband on clearance of the rigors contained in Section 37 of the Act. Section 37 of the Act is extracted as under:- '37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless: (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.' 8. Reading of Section 37(1)(b)(ii) mandates that two conditions are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail. 9. The first condition is when the Public Prosecutor does not oppose the bail application. 10. The second stipulation is that the Court must be satisfied that the reasonable grounds exist for believing that the accused is not guilty of such offence and also he is not likely to commit any offence while on bail. Be that it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions that the reasonable ground to believe that during the period of bail, the accused is not guilty of such an offence, still, it is not possible for the Court to give a finding or assurance that the accused is not likely to commit any such crime. However, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case. 11. To understand that why is the present bail petitioner not entitled to the discretion of pre-arrest bail, the following illustration is relevant. Take somewhat an identical case where some person, when he sees the police or when the cops challenge him, throws away his bag, containing the prohibited contraband in it, and runs away from the spot. At a later stage Investigating Officer arrests the person by claiming it was the same person who had run away on seeing the police party. But such person leads primary evidence of alibi by proving his presence at some other place, or some allegations that the police let off the real culprit, on some extraneous considerations, and that the police is making him a scapegoat. 12. In the present case, there is not even a whisper or a word in the pleadings of the accused which suggest that the petitioner was not present on the spot at the time of the alleged recovery of the contraband. 12. In the present case, there is not even a whisper or a word in the pleadings of the accused which suggest that the petitioner was not present on the spot at the time of the alleged recovery of the contraband. It is also not pleaded that there is some hostility with the police personnel. The only contention raised is that the police is falsely implicating the accused. 13. In the facts and circumstances of the case, the petitioner is unable to clear the check-post of Section 37 of the NDPS Act. Resultantly, the petition stands dismissed. The dismissal of this bail shall not come in the way of the petitioner filing subsequent bail petitions. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case, and the Court(s) shall decide the matter uninfluenced by any observation made hereinabove.