Noop Singh vs State of Himachal Pradesh

Surinder Singh, J.—Appellant was convicted by the learned trial Court in Sessions Trial No. 18 of 2004, decided on 4th May, 2005, for the offence punishable u/s 20 of the Narcotic Drugs Psychotropic Substances Act, 1985, in short "the Act", for allegedly keeping in his possession non-commercial quantity of Charas, as such sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. 9,000/- with a default clause. The prosecution story as spelt out from the statements of the prosecution witnesses can be summarized thus. On 7.12.2002, PW7 Nathu Ram, Inspector/SHO of Police Station, Bhoranj was heading police party. They were on patrolling duty. To this effect, their departure stands recorded in the Roznamcha, copy whereof is Ext.PW7/A. PW7 Nathu Ram informed PW1 ASI Satish Kumar to remain present in the Bazar. During the intervening night of 7/8.12.2002, around 1.00 am police noticed the appellant, hereinafter to be referred as ''the accused'' coming from the opposite side with a bag hung on his shoulder.

(ii) PW7 Inspector Nathu Ram on suspicion searched the bag of the accused and recovered 600 grams Charas, which was in form of small billets. The identity of the accused was asked. Out of the recovered Charas two samples of 25 grams each were separated, made into two parcels and sealed with the seal impression ''H''. The sample parcels were marked as Ext.P1 and P2. The remaining bulk was packed and sealed with the same seal. The case property was taken into possession vide memo Ext.PW1/B. The seal impressions were also taken on a piece of cloth Ext.PW7/B. The parcel of cloth was marked as Ext.P4, it contained ''Pajama'' Ext.P7, ''Kurta'' Ext.P8 and towel Ext.P6.

(iii) The seal after its use was handed over to ASI Raj Kumar, accompanying Inspector Nathu Ram.

(iv) Ruqa, Ext.PW7/C through PW2 Constable Pawan Kumar, for the registration of the case was sent which culminated into FIR Ext.PW5/A. The site plan Ext.PW7/D was prepared on the spot. The accused was arrested and the grounds of arrest were informed to him.

(v) The case property alongwith NCB forms which were allegedly prepared on the spot, was deposited with PW5 MHC Santosh Raj. He made its entry to the Malkhana register.

(vi) On 9.12.2002 vide RC No. 149/02 one of the samples was sent for analysis to C.T.L., Kandaghat through PW6 HHC Roop Lal, which was deposited by him on the next day. After obtaining the receipt, it was deposited with the MHC on his return. The sample was examined in the laboratory which tested positive for Charas. The report is Ext.PW7/E.

(iii) Special report was sent to the officer superior within the stipulated period.

After completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted and tried for the aforesaid offence. In his statement u/s 313 of the Code of Criminal Procedure his case was denial simplicitor. He did not lead any evidence in defence. At the end of trial he was convicted and sentenced as aforesaid, hence the present appeal.

The learned Counsel for the accused vehemently argued that there are material contradictions in the statements of the prosecution witnesses, the independent witnesses were not associated at the time of search, link evidence is not complete and the report is not connected with the alleged recovered stuff.

On the other hand, learned Additional Advocate General supported the impugned judgment of conviction and sentence. According to him, the link evidence is complete, recovery stands proved and the report of the Public Analyst also stands fully connected with the alleged recovery.

I have considered the rival contentions of the parties and have carefully and meticulously examined the evidence on record.

PW7 Inspector Nathu Ram has corroborated the case of the prosecution in so far as the recovery is concerned. According to him, samples from the recovered stuff were properly taken and sealed on the spot and to that effect seizure memo was prepared. I find that it was a dead of night. No witness could have been present and otherwise also it is not the requirement of law to associate two independent witnesses when the recovery is from the open place. Therefore, non-association of the independent witnesses is not fatal to the prosecution case at all. Further, PW1 ASI Satish Kumar and PW2 Constable Pawan Kumar, who were present on the spot corroborates the Investigating Officer to this extent.

What is lacking in the present case is that no evidence was produced by the prosecution to show that the NCB forms which were allegedly prepared on the spot or sample of seal were deposited in the Malkhana register. Though PW5 Santosh Raj says about depositing of sample seal and not of NCB forms, but to corroborate his version the abstract of the register should have been placed and proved on record. Not only this, the copy of RC against which the case property for analysis by PW6 HHC Roop Lal also did not find the light of the day, which could have been helpful to establish this fact. Even this witness does not say about taking of NCB forms to C.T.L. Kandaghat, but, there is only a reference in his statement that the specimen impression of seal was taken by him alongwith the sample, which fact has been disputed in the statements of both the aforesaid witnesses by the accused. The case property, as per report Ext.PW7/E was received in the laboratory on 10.12.2002, as indicated in the report. The first portion of the NCB form against column No. 7B says about sending of one sample No. B/1 for analysis, but no such sample was so marked, whereas in the evidence it has come that four parcels prepared on the spot were marked Ext.P1 to P4. Even the NCB form does not contain facsimile of the seal used on the spot by the Investigating Officer. In absence of the documents to corroborate the version of MHC Santosh Raj and HHC Roop Lal aforesaid with respect to sending of the sample of seal alongwith the sample for analysis, their testimony is questionable as the best evidence was withheld. Not only this, the sample examined in the laboratory, as per report of Chemical Examiner shows that he had conducted microscopic examination in the presence of cystolithic hair and beams alkaline test and both were found positive. The result of quantative test was that it contained resin to the extent of 30.26%. On this, he that the stuff examined by him contained the contents of Charas, but there is no reference in the report that this resin was from Cannabis plant.

In fact "Charas" is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, which reads as follows: "(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."

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. As noticed hereinabove, as per report Ext.PW7/E the only tests which were conducted by the Chemical Examiner were to find out the presence of cystolithic hair and by conducting the beams alkaline tests which he found it positive. The resin contents as stated above were also found present, but in the definition of Charas as referred to above it fall short of the legal requirement. Therefore, for the reasons aforesaid the report of the analysis Ext.PW7/E, could not be proved and connected with the sample of the recovered substance from the accused, as it does not conform to the definition of Charas, which fact appears to have been ignored by the learned trial Court. Therefore, the conviction and sentence passed by the learned trial Court is set aside and the appeal is allowed. Consequently, the accused is acquitted by giving the benefit of doubt. The fine amount, if any, deposited by the accused, be refunded to him. The accused is on bail, his sentence was suspended by this Court on 7.6.2005. He is discharged of his bail bonds.