Mohinder Singh vs State of Himachal Pradesh

Surinder Singh, J.—The appellant by means of the present appeal has challenged his conviction passed u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short "the Act", whereby he has been sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of `40,000/-with default clause, for allegedly keeping in possession 20.76% resin weight-in-weight of recovered stuff of 2.00 Kilograms.

The prosecution case as revealed by PW9 HC Balram Ram can be summed up thus. On 16th February, 2007, ''Shivratri festival'' was going on at Mandi. He was heading a police party and was present at Bus-Stand on patrol duty. About 9.45 a.m. the appellant hereinafter to be referred as "the accused" on seeing the police party had tried to escape. Police entertained suspicion that he may be either a thief or a pickpocket, thus chased him and apprehended after covering a short distance. PW2 Kali Dass, a Scrap Dealer and one Anil Sharma were associated as the independent witnesses. The identity of the accused was asked in their presence. Police party conducted the personal search of the accused and he was found having tied three polythene packets on each of his legs with strings, which contained two kilograms of Charas, some in flat shape and some billets.

(ii) Out of the recovered stuff, two samples of 25 grams each were randomly separated and sealed with seal impression ''H''. The strings were also put in the remaining bulk and sealed with the same seal. The seal impression was taken on a piece of cloth. Sample parcel and bulk were marked as P1 and P2.

(iii) NCB forms in triplicate were filled in, one of which is Ext.PW9/A. It is stated that the facsimile of the seal impression ''H'' was also fixed on each of the NCB forms and its facsimile was also taken on a piece of cloth Ext.PW1/B. Seal after its use was handed over to PW2 Kali Dass. Case property was taken into possession vide seizure memo Ext.PW1/A in the presence of the witnesses.

(iv) Ruqa Ext.PW9/B was sent to the Police Station, for the registration of the case through PW5 C. Yaqub Khan.

(v) Police prepared site plan Ext.PW9/C of the place of alleged recovery. Statements of the witnesses were recorded. Accused as well as the case property, both were produced before PW11 Rakesh Kumar, the then Inspector/SHO of Police Station. He resealed each of the parcels with his own seal producing the impression of English alphabet ''U''. Its impression was also taken separately on a piece of cloth Ext.PW11/A, the facsimile whereof was also taken on NCB forms. He filled in the relevant columns of the NCB forms and handed over the parcel duly sealed alongwith NCB forms to PW6 MHC Nand Lal for its deposit in the Malkhana, with a direction to send one of the sample parcels to State Forensic Science Laboratory, Junga, for analysis. He recorded the above facts in the daily diary Ext.PW11/B.

(vi) On 18.2.2007, one sample parcel, copy of FIR, seizure memo, NCB forms and specimen seal alongwith police docket were allegedly sent through PW7 HHC Het Ram for its deposit in the Laboratory, to which he took it vide RC No. 62/2007 and after its deposit on 19.2.2007, he obtained its receipt and handed over back to MHC Nand Lal.

(vii) Sample was examined in the Laboratory on 3rd March, 2007 and the Chemical Examiner found that the sample marked as P/1 is the sample of Charas. His report is Ext.PW9/E.

After completing the investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted, tried and convicted as aforesaid, hence the present appeal.

Shri Virender Singh Rathore, learned counsel for the accused vehemently argued that the Chemical report of the analysis does not conform to the definition of the "Charas". Further he ventilated that though the official witnesses have stated that the NCB forms, sample of seal etc were deposited in the Malkhana alongwith the case property, but its entry did not find mentioned in the Malkhana register, as also on the road certificate, thus, during the trial, they gave an improved version not supported by the official record. He also pointed out that the defence taken by the accused stands probablised that he was traveling in the Bus. There was an abandoned bag which contained some stuff and ultimately this was foisted upon him. The story as projected is incorrect. He also referred to the statement of the alleged independent witness Kali Dass who himself is facing wrath of the police as having been implicated in a false theft case and another witness was not examined. The said witness did not support the case of the prosecution. According to learned counsel, the entire case is surrounded by suspicion and evidence so led cannot be made the basis for the conviction of the accused.

Contra, Shri R.P. Singh, learned Assistant Advocate General supported the impugned judgment of conviction and sentence. Further argued that the very intention of the accused that the recovery of stuff was proved to have been tied in the lower part of his legs and kept concealed under socks. It is also pointed out that the link evidence after the recovery till the sample reached and examined in the Laboratory is complete. Sample of seals, facsimile of which was on the NCB forms tallied with the sample analyzed by the Chemical Examiner and after conducting various chemical tests, he came to the conclusion that the sample contained the contents of Charas. He further submitted that though there was no requirement to join the independent witnesses to witness the search, yet police had associated two witnesses out of which one was examined and he turned hostile for obvious reasons. Statements of the official witnesses are confidence inspiring and were rightly acted upon, therefore, no interference is called for.

To appreciate the rival contentions of the parties, I have thoughtfully considered the evidence on record in extenso and examined the law on the points raised.

At the very outset, I would like to say that though PW2 Kali Dass, an independent witness did not support the case of the prosecution. He also stands contradicted with his earlier statement recorded by the police u/s 161 of the Code of Criminal Procedure. Further, the stand taken in defence is also not probablised, which is different from the explanation given u/s 313 of the Code of Criminal Procedure, wherein the accused stated that the Investigating Officer had taken Shawls from him and did not make its payment, which fact has not been put to the Investigating Officer. Further it is not suggested to any of the witnesses that DW2 Raj Kumar was also present on the spot when the accused was apprehended. He was only examined to help the accused, may be because of his affinity with him or for some other reasons.

Further, PW2 Kali Dass cannot be said to be independent witness. He is a scrap dealer and was already under the pressure of the police as he stated in the cross-examination that he was framed by police in a theft case, registered in the Police Station Gohar, but however, contra the Investigating Officer (PW9) stated to have recovered 2.00 kilograms stuff from the person of the accused, as stated above which cannot be said to be a planted case without any malice against the accused, but it has to be established by the prosecution whether the stuff recovered is a contraband within the meaning of the Act.

There is a positive case of prosecution that the stuff recovered from the accused was Charas. According to the definition of Charas as given in Section 2(iii) (a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant.

''Flowering and fruiting tops'' of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja.

When Charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act.

Being in possession of cannabis (hemp) is an offence, punishable u/s 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as "small" and "commercial" in Sections 2(viia) and 2(xxiiia), respectively. "Small" and "commercial quantities" of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No. S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For Charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No. 23, "small quantity" is less than 100 grams and "commercial quantity" is above 1 Kg. In respect of Ganja, "small quantity" is less than 1000 grams and "commercial quantity" is more than 20 Kgs, per entry 55.

The Division Bench of this Court had examined the various reports including one of such appeared in the case Sunil Kumar vs. State of H.P. and other connected matters [Latest HLJ 2010 (1) HP 207] of which I was also one of the member. In the light of the statement of the expert witness examined before the learned trial Court as well as by this Court in Sunil Kumar''s case, supra, the Court did not find those reports which were better placed than the present one, in conformity with the statutory definition of Charas.

In the instant case, the report of analysis is Ext.PW9/E. It reads as follows:-

Results of the Examination

Various tests were carried out with the exhibit under reference for identification chemical and chromatographic test indicated that the sample under reference is Charas. It contains resin 20.67% W W. The results thus obtained is given below:-

Exhibit marked as P/1 is a sample of CHARAS.

In Sunil Kumar''s case supra, the report of analysis indicated the presence of the cannabinols including tetrahydrocannabinol and the Microscopy also indicated the presence of characteristic cystolithic hair. In the instant case, there is no mention of cannabinols etc. mentioned by the expert except that some tests were conducted and also the sample so analyzed contained the resin to the extent of 20.67% W.W., without mentioning that the resin was of cannabis plant. In fact, the tests conducted by the Analyst were to find out whether it was Charas within the meaning of the Act. The cannabis products are many. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis (hemp), u/s 2(iii) of the Act, and one such is bhang, i.e. the leaves of the plant, possession of which is not an offence. Even finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. Analyst observed that there was resin present in the sample, but resin of what.

As a matter of fact, tetrahydrocannabinol is present not only in the three forms of cannabis (hemp), defined in Section 2(iii) of the Act, but also in its leaves, stem and even the seeds, as we would be indicating in the later part of this judgment and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, which is the fabric of the cannabis plant, do not mean that the analysed stuff is Charas, which means separated resin, per Section 2(iii)(a) of the Act, and not any other product of cannabis.

On the proper analysis of report Ext.PW9/E, I am at loss to hold that the sample so analyzed was that of Charas, covered under its statutory definition, therefore, the report of the analysis aforesaid cannot be made basis for the conviction of the accused.

Further I find that the NCB forms, sample of seals etc. were stated to have been deposited in the Malkhana, but it does not find mentioned in the abstract of the Malkhana register Ext.PW6/A nor these documents mentioned in the Road Certificate Ext.PW6/B having been sent alongwith sample through PW7 HHC Het Ram for analysis. Not only this, receipt Ex.DA issued by the Laboratory only refers to the receipt of the sealed parcels. Further, NCB forms have been signed by the Chemical Examiner on 6.3.2007 on the date when the final report was issued by him. In absence of the aforesaid evidence that these articles were received in the Malkhana and sent through Road Certificate also become doubtful, but once it is held that the report of the analysis does not conform to the definition of the Charas, the conviction of the accused for the offence aforesaid can not be upheld.

For aforestated reasons, the accused is given the benefit of reasonable doubt. Consequently, the appeal is allowed. The impugned judgment of conviction and sentence passed by the learned trial Court against him is set-aside.

The accused be set at liberty, if not required in any other case. He is undergoing the jsentence. The Registry of this Court is hereby directed to issue release warrant forthwith.

The appeal stands disposed of, so also the pending applications, if any. Send down the record.