CR.A/192/2005 on 28 December 2011

1. Joginder Singh son of Sh.Rattan Lal, R/O Village Ganda Lavi, P.S.Bharari, District Bilaspur, H.P.

2. Surinder Kumar son of Sh.Nikka Ram, R/O Chegatu P.S.Bharari, District Bilaspur, H.P.

...Respondents. ________________________________________________________________

Coram

The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Virender Thakur, Advocate. Justice R.B. Misra,J.

(Oral)

The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 20.11.2004, passed by Learned Additional Sessions Judge, Solan, H.P., in Sessions Trial No.22- NL/7 of 2003, acquitting the alleged respondent-accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), in reference to FIR

No.107/2003, dated 20.7.2003.

2. The prosecution case is that on 20.7.2003, at about 6.15 PM, while police party was on patrolling and laid a Nakkabandi near Baba Jago, Gurdwara, apprehended the accused-respondents, who after observing the police party tried to escape. During search of the scooter a polythene packet bearing marka Partap Dupatta House School Bazar was found in which 1 kg. 100 grams of charas in the form of sticks was recovered. Two samples of 25 grams each were separated, sealed and put in a match box and the remaining bulk was also sealed separately in another parcel and taken into possession vide memo Ex.PW.9/F. FIR Ex.PW.6/A was registered.

3. After investigation, respondent-accused were charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution examined as many as 11 prosecution witnesses, whereas, the accused through their statement under Section 313 of Cr.P.C., have denied the prosecution case.

4. On analysis of the prosecution witnesses and materials on record as well as keeping in view the discrepancies and inconsistencies emanating from the prosecution witnesses, the learned Additional Sessions Judge, Solan has arrived at the finding that the prosecution has failed to prove its case. Inter alia many other points one important aspect emanating from Ex.PW.9/M is that the 'NCB Form' appears to have not been prepared on the spot. More so, on microscopic examination by the Chemical Examiner cystholithic hair were found to be present in the contraband good recovered and beams alkaline test was found to be positive. On analysis, resin was found present upto 33.24% in the sample. In these circumstances Chemical Examiner has opined that the contraband good so recovered was said to be charas. Similarly this Court D.B. vide its judgment dated 19.9.2011 in Cr.Appeal No.391/2002 (State of H.P. Versus Subhash Sharma @ Bhasi) has taken a view that the contraband good so recovered cannot be treated to be charas. For convenience, Paragraphs 15 & 16 of the above judgment, are extracted as below:- “15. Also we find that the report of the analysis Ex.PW.11/ A though mentions about the presence of cystholithic hair and beams alkaline test positive but it does not say that the resin content of 28.04 was of a cannabis plant. Based upon the above, it is opined that the exhibit contained the content of charas. The cystholithic hair is a fiber which could also be found in flowering tops of the cannabis plant, but the definition of charas does not include other parts like flowering and fruiting tops, leaves or stem. The definition of charas is given in Section 2 (iii)

(a) of the Act. Charas, 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. Since it does not make any mention whether this resin was of a cannabis plant. Therefore, in our opinion the report of analysis is discrepant. The Division Bench of this Court in which one of us (Surinder Singh, J.) was also one of the Members Sunil Kumar versus State, Latest HLJ 2010 (HP) 207 examined almost similar reports in Bunch matters and taking note of the aforesaid definition of charas under the Act viz-a-viz the statement of the Experts recorded during the trial as well as before this Court, held that charas should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. Thus, in absence of the fact that it was also that of a cannabis plant, result of analysis cannot be said to have in conformity with the definition of charas. As such, the accused persons were given the benefit of doubt and were accordingly acquitted.

16. In the instant case, as already stated above, firstly the sample so analyzed by the laboratory could not be connected with the recovered stuff and secondly report of the analysis is falling short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considered opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed. “

5. In view of the aforesaid analysis, we are of the considered view that the contraband good so recovered, in this case, cannot be treated as charas as has opined by the Chemical Examiner. Besides many points taken by the learned Additional Sessions Judge only on the above aspect alone, the criminal appeal does not survive, being devoid of any merit, as such, is dismissed.

6. The

bail

bonds

furnished

by

the accused/respondents are hereby discharged.

(R.B. Misra)

Judge

December 28, 2011

(Sanjay Karol) (Purohit)

Judge