Dharam Pal vs State of Himachal Pradesh

Sanjay Karol, J.—Assailing the judgment dated 8.9.2005, passed by the learned Addl. Sessions Judge, Fast Track Court, Chamba, H.P. in Sessions Trial No. 66/04/04, titled as State of Himachal Pradesh vs. Dharam Pal, whereby the accused-appellant has been convicted for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs. 30,000/-, the accused has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973. The prosecution case, in brief, is that on 12.2.2004, at about 2.35 p.m. at place near Balupul Chowk, the police party apprehended the accused and recovered 500 grams of charas from his possession. Two samples of 25 grams each were taken out from the recovered charas and sealed with seal impression-T. The remaining bulk was also sealed with the same seal. On 15.2.2004 one sealed sample along with the NCB form and specimen seal were sent for chemical examination which were deposited at CTL Kandaghat on 16.2.2004. As per the Chemical Examiner''s report (Ext. PW 12/B) the contraband stuff was opined to be charas. With the completion of investigation, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as fourteen witnesses and the statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication.

After trial, the accused stands convicted of the charged offence, inter alia, on the ground that the prosecution was able to establish its case that the accused was carrying contraband substance i.e. charas which was 500 grams, and sentenced, as aforesaid.

The Chemical Examiner vide report (Ext. PW 12/B) has opined that on microscopic examination cystolithic hair were found present, the Beam''s Alkaline Test was positive and resin was found to be 29.01%. As such, the Chemical Examiner has opined that the contraband substance so recovered was charas. It does not specifically state that the contents of resin is only of cannabis plant; concentrated preparation and the resin known as hashish oil or liquor hashish.

In the instant case, in my considered view, interference is warranted, keeping in view the ratio of law laid down by a Division Bench of this Court in Criminal Appeal No. 391 of 2002, titled as State of H.P. vs. Subhash Sharma @ Bhasi, decided on 19.9.2011. The relevant paragraphs No. 15 & 16 of which read as under:-

... The cystolithic 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 a 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.

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.

In view of the observations made by this Court in Subhash Sharma @ Bhasi''s case (supra) and in view of the Chemical Examiner''s report, I am of the considered view that the contraband substance so recovered in the present case cannot be said to be charas. As such, benefit of doubt has to be given to the accused. Thus, on this short ground alone, the present appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside and the accused is acquitted of the charged offence. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged.

Appeal stands disposed of, so also the pending application(s), if any.