Nazar Khan vs State of H.P.

V.K. Ahuja, J.—This order shall dispose of an application filed by the Petitioner for grant of bail u/s 439 Code of Criminal Procedure, in FIR No. 41/2011 dated 2.3.2011, under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Brief facts of the case are that on 2.3.2011, at about 6.30 AM, at Chalon, a vehicle came from Manikaran side, which was stopped by ASI alongwith other police officials. Apart from the driver, one another person was found sitting on the front seat and the second person was found sitting on the back seat. On checking of the vehicle, it was found that one bag was there in the lap of the person sitting on the back seat. Another bag was found in the Dikki and on checking, Charas weighing 4 Kg. 500 grams was recovered and according to the story put up by the police, co-accused Raj Kapoor claimed that 1 Kg. belongs to him. 1 Kg. 500 grams belongs to co-accused Sahil and 2 Kg. belongs to the present Petitioner. The recovered Charas was taken in possession as per the procedure and a case u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered against the Petitioner and others. Bail application was firstly filed before the Court of learned Special Judge, Kullu (FTC Kullu), which was rejected. Hence, the present petition filed before this Court.

A notice of the petition was issued to the State.

I have heard the learned Counsel for the parties and have

gone through the record of the case.

During the course of arguments, learned Counsel for the

Petitioner had relied upon a Division Bench decision of this Court in Sunil v. State of H.P., Latest HLJ 2010 (HP) 207. Reliance was placed upon the observations made in paras 29 and 30 of the judgment, which read as under:

As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in the reports the percentage thereof. While, in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis.

According to Parikh''s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of bhang it is 15 per cent, in the case of ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is No. offence because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, u/s 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant.

It was held on merits of the case based upon the experts'' reports in those six cases that the stuff recovered from the accused was not Charas and that No. test have been conducted to ascertain whether stuff was Charas, as to say it as resin.

Reliance was placed upon another decision of the Division Bench of this Court in Bajinder Singh v. State of Himachal Pradesh, Latest HLJ 2010 (HP) 1263. In that case also, the Chemical Examiner had been examined by the Court as a Court witness and it was observed that the report of FSL does not provide percentage of tetrahydrocannabinol in the stuff recovered nor has conducted test so as to establish the recovery as Charas and accordingly it was held that the report cannot be relied upon.

Reliance was placed upon an earlier decision in Dharam Pal v. State of H.P., Latest HLJ 2007 (HP) 827, wherein it was held by the Division Bench of this Court that only the resin content of the cannabis plant is Charas. It means separated resin, in whatever form, whether crude a purified obtained from the cannabis plant and also includes concentrated preparation and resin known as ''hashish oil'' or ''liquid hashish''. Thus, it was held that the Charas recovered from the Appellant weighed 1 Kg. and 600 grams and as per the report of the Chemical Examiner, the percentage of the resin in the stuff is 28.92%. Thus in terms of weight, the ''charas'' content of the recovered stuff comes out to be 462.72 grams which is more than the small quantity but lesser than the commercial quantity fixed by entry No. 23. Held the Petitioners are only liable for the punishment prescribed for small quantity.

The submissions made by the learned Counsel for the Petitioners were that since in the report of the expert he has not mentioned the percentage of cannabis in the stuff recovered, the report cannot be relied upon.

I may refer to the report of the FSL, which shows that the total weight found was 4.448 Kg. of the Ext and results of the examination may be reproduced as under:

Various scientific tests such as physical identification, chemical and chromatographic analysis were carried out in the laboratory with the exhibit under reference. The above tests performed indicted the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. Charas is a resinous mass, which on testing was found present in the exhibit.The quantity of resin as found in the exhibit is 30.53% w/w. The result thus obtained is given below.

The exhibit is extract of cannabis and sample of CHARAS.

The judgment in Dharam Pal''s case had clearly laid down the law that the percentage of the resin content only shall be held to be Charas and not the whole quantity recovered. The definition of the term ''Charas'' has been given in Section 2(iii)(a), which is reproduced as under:

(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.

My attention has been drawn by the learned Assistant

Advocate General to the amendment made in the Act vide Notification dated 18.11.2009 and it was mentioned in the Table at the end after Note 3, the following Note shall be inserted, namely:

(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers wherever existence of such substances is possible and not just its pure drug contents.

This amendment was probably carried out after the judgments in regard to the resin contents were given and it refers to the fact that it shall apply to the whole mixture and not just it bear drug contents. This amendment was not considered by the Hon''ble Division Bench in the judgments referred to above, since there is nothing to suggest in those judgments that this amendment had been effected by that time and the Court had considered the same. Since the judgment in the first case of Sunil v. State of H.P. was passed on 11.12.2009 and this Notification is of dated 18.11.2009, which is prior to that date, but there is No. reference to this amendment also. According to the definition of ''Charas'' given in the Act, it is the separated resin in whatever form, whether crude a purified obtained from the cannabis plant and also includes concentrated preparation and resin known as ''hashish oil'' or ''liquid hashish''. The said judgment did not refer to percentage of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit should also be specified before it can be termed as Charas that it is clear that there was presence of tetrahydrocannabinol and presence of Cystolithic hairs also in the exhibit, as in the present case.

The learned Counsel for the Petitioner in the petition also relied upon the claim put up by the separate persons so as to hold that the contents taken in possession from these bags, only 2 Kgs. belongs to the Petitioner, which cannot be considered and No. findings can be given at this stage of bail application.

I may refer to another decision of the Apex Court, which was a case from Solan in Himachal Pradesh, in which on merits it was held that all occupants of the car are liable to be held guilty as has been held in Madan Lal and Another Vs. State of Himachal Pradesh, and at this stage of bail this plea cannot be considered as to separate possession and as to what is the effect of such plea and whether the Petitioner and Ors. are jointly liable or not. All these questions are to be considered by the learned trial Court on its own merits and as per

the latest case law on the date without going through the observations made by this Court, which are only to determine the entitlement of the Petitioner to the grant of bail and are relevant for disposal of the application and it shall have No. affect on the merits of the case.

From the above discussion, it is clear that the mere fact that percentage of the tetrahydrocannabinols is not there, is not sufficient to hold that the report in question at this stage when the case is at investigation stage cannot be relied upon so as to hold that the Charas recovered from the Petitioner was not commercial quantity. According to the percentage of the resin found, the quantity recovered was more than 1 Kg. and as such, it becomes commercial quantity and, therefore, the Petitioner is not entitled to the grant of bail, keeping in view the above case law and the amendment carried out in the Act.

In view of the above discussion, I accordingly hold that there is No. merit in the bail application filed by the Petitioner, which is dismissed accordingly.