Shanti vs State of Himachal Pradesh

Surinder Singh, J.—The appellant (a Nepali woman) was convicted for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the ''Act'') for allegedly keeping in possession 2.500 kilograms of charas, as such sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of rupees one lack. In default of payment of fine, to further undergo imprisonment for a period of one year. The period of detention undergone by the appellant was also ordered to be set off as per the provisions contained u/s 428 of the Code of Civil Procedure. Feeling aggrieved by the judgment of conviction and sentence, the appellant (hereinafter referred to as the ''accused'') has filed the present appeal.

In brief, the prosecution case, as is revealed from the evidence produced before the learned trial Court, can be stated thus. PW-11 Head Constable Purshotam was posted as Investigating Officer in the year 2005 at Police Post, Jari. On 22.08.2006 along with HHC Dina Nath, Constable Mehar Chand and Lady Constable Hara Devi were on patrol duty at Parbati Bridge. At about 5.30 p.m. two women came from Malana side. One of them was the accused, carrying black coloured rucksack on her back and another were carrying plastic envelope in her right hand. Witnesses Pushkar Raj and Raj Kumar (not examined) were also found present there by chance on the spot. In their presence, both the ladies tried to flee away, which aroused suspicion of the police party and they were apprehended at about 10 feet and were questioned. The accused disclosed her name and address and her co-accused Jiwan Kumari also disclosed her identity and both of them stated that they were residing at ''Tambu colony (Malana-II), District Kullu.

(i) Both the women accused were apprised of their right to be searched either in the presence of Magistrate or Gazetted Officer, but they consented to be searched by the police present there. To this effect consent memos Ext. PA & PB were prepared and signed by the witnesses, whereas, accused-appellant and her co-accused thumb marked their consent memos.

(ii) PW-11 Head Constable Purshotam and PW-2 Constable Hara Dei rendered themselves searched by the accused persons in the presence of witnesses. Nothing incriminating was recovered from them, as such memo Ext. P-C was prepared in this regard which was signed by the accused as well as the witnesses.

(iii) Lady Constable Hara Dei conducted the search of accused Shanti Devi as per memo Ext. P-H. Nothing was recovered from her, whereas, on the personal search of the co-accused Jiwan Kumari mobile and mobile charger alleged to be of accused were recovered from her along with some medicines, kept in a polythene bag which she was carrying. In addition, one 50 rupee note of Nepali currency and one 50 rupee note of Indian currency were also recovered vide memo Ext. P-G.

(iv) Thereafter, Lady Constable Hara Dei conducted the search of rucksack bag being carried by accused Shanti, which was found carrying 2.500 kilograms charas in round shape of ''Chapatis''. Out of which, two samples of 25 grams each were separated, packed and sealed separately with seal impression ''H''. The remaining bulk was also packed in the same bag and sealed with the same seal. The sample so sealed was taken on a piece of cloth and NCB forms in triplicate were prepared on the spot and a facsimile of the seal was put on each of the NCB forms, one of which is Ext. P-1.

(v) The case property was taken into possession vide seizure memo Ext. P-D, which was signed by accused Shanti and the independent witnesses PW-1 Pushkar Raj and Raj Kumar along with PW-2 Lady Constable Hara Dei. Its copy was supplied free of costs to the accused.

(vi) Accused Shanti was arrested u/s 20 of the Act, whereas, accused Jiwan Kumari was arrested u/s 29 of the Act and grounds of arrest were also informed to them in writing.

(vii) Rukka Ext. PZ/B for the registration of the case was prepared and was sent to the Police Station, Kullu on the basis of which, FIR Ext. PJ was formally registered.

(viii) The Investigating Officer also recorded the statements of witnesses Pushkar Raj and Raj Kumar. Thereafter, police party along with the accused and the case property, came to the Police Post, Jari. Next morning at about 8.30 a.m., the case file was handed over by PW-3 Dina Nath to the IO after registration of the case.

(ix) On reaching Kullu, Head Constable Purshotam handed over the case property to PW-10 SHO Sarwan Kumar. After examining the seals SHO aforesaid resealed the case property with seal impression ''D'' and filled up the relevant columns No. 9 to 11 of NCB forms in triplicate. Seal impression so used was taken on a piece of cloth, which is Ext. PV and facsimile thereof was also put on the NCB forms. Thereafter the aforesaid parcels along with NCB forms, copy of seizure memo, sample of seals and other connected documents were handed over by him to PW-6 Jia Lai for its deposit in the Malkhana, to which he deposited on 23.08.2006 at 2.40 p.m. and its entry was made in the Malkhana, extract whereof is Ext. P-N.

(x) Thereafter, PW-7 MHC Roop Singh working in place of PW-6 aforesaid as MHC, on 26.09.2006 had sent one of the sample forms, samples of seal impressions H and T and other connected documents to CFSL, Chandigarh through Constable Diwan Chand vide RC No. 264/06, Ex. PQ which he deposited in the Laboratory on the next day and took the receipt Ext. PP on the RC and deposited it with MHC on his return. On its examination, as per report, Ext. PX, sample was opined to be that of charas. The report with respect to the arrest and seizure was sent to the officer superior.

After completing investigation, challan was presented against accused Shanti as well as co-accused Jiwan Kumari in the Court. As already stated above, accused Shanti was charge-sheeted for the offence punishable u/s 20, whereas accused Jiwan Kumari for the offence punishable u/s 29 of the Act, to which both the accused persons pleaded not guilty and claimed trial. To prove its case the prosecution examined as many as 11 witnesses. The accused persons were also examined u/s 313 of the Code of Criminal Procedure. Their case was denial simplicitor. No evidence in defence was led.

Learned trial Court did not find complicity of accused Jiwan Kumari for the offence charged, as such, she was acquitted, whereas, accused Shanti was convicted and sentenced, as aforesaid, as such, the present appeal by the accused-appellant.

Shri B.S. Attn, learned counsel for the appellant vehemently argued that there are material contradictions in the statements of witnesses. PW-1 had turned hostile and he did not support the prosecution case and further that the report of analysis Ext. PX is not in conformity with law and does not connect the accused with the alleged contraband of charas. To support his version, he has relied upon the judgment of a Division Bench of this Court in Sunil versus State of H.P. and its connected matters. Latest HLJ 2010 (HP) 2007, in which one of us (Hon''ble Mr. Justice Surinder Singh, J.) was also a member. It is further argued that the learned trial Court did not appreciate the above points which caused prejudice to the accused and as such, conviction and sentence of the accused is liable to be set aside.

On the other hand, Mr. M.A. Khan, learned Additional Advocate General assisted by Mr. Ramesh Thakur, learned Assistant Advocate General while supporting the judgment of conviction and sentence forcefully submitted that though independent witness Pushkar Raj has resiled from his earlier statement but he has supported the prosecution case in his cross-examination. Further, he has admitted his signatures on the documents, which were executed on the spot. He was a matriculate and documents were prepared in Hindi and he also admits that he did not sign any of the documents without going through the same and he was not forced to sign the aforesaid documents by the police. Further, it is also argued that the said witness has obvious reasons for supporting the accused. But, however, according to learned Additional Advocate General, the statements of official witnesses have categorically proved the recovery from the possession of the accused and the link evidence is complete and there is no reason to disbelieve their version. He also argued that contents of the report bring the case against the accused for possessing the commercial quantity of charas, which is punishable u/s 20 of the Act.

We have examined and re-apprised the evidence in the light of the legal provisions of the Act. Perusal of statement of PW-11 Head Constable Purshotam, PW-2 Lady Constable Hara Dei and PW-3 HHC Dina Nath categorically establish that on 22.08.2006, accused along with Jiwan Kumari were crossing Parvati Bridge, when they were confronted by the police party headed by Head Constable Purshotam. As they tried to escape, it aroused suspicion, thus they were apprehended. The rucksack of accused Shanti, was carrying contained 2.500 kilograms stuff, which according to the prosecution was charas. Two samples were separated and sealed with seal impression ''H'' in the presence of witnesses PW-1 Pushkar Raj and Raj Kumar, who happened to be present there. As already stated above, PW-1 Pushkar Raj turned hostile to the prosecution and had not supported the prosecution case in toto. But, however, admitted his signatures on various documents prepared on the spot and he had signed them without any threat, promise of inducement offered by any of the police officers. It also further stands proved that two samples, which were separated were sealed with seal impression ''H'' and the remaining bulk was also sealed with the same seal and NCB forms in triplicate were prepared on the spot. It also contained the facsimile of the seal used on the spot and thereafter the case property was produced before PW-10 SI/SHO Sarwan Kumar of Police Station, Kullu. He testified that after examining the seal impressions "H'' on each of the parcels, so produced, along with the sample of seal, he had resealed the case property with seal impression T and took the seal impression on a separate piece of cloth Ext. PB. Its facsimile was also put on the NCB forms and thereafter case property along with the sample of seals, NCB forms and copy of seizure memo were deposited with PW-6 MHC Jia Lai, who made its entries in the Malkhana register, the abstract whereof is Ext. PN. In cross-examination, PW-6 Jial Lal has denied the suggestion that case property was neither handed over by the SHO nor deposited in the Malkhana. It is also clear from the statement of PW-6 that when MHC Roop Singh proceeded on leave, charge of his seat was given to him, which was also testified by Roop Singh aforesaid and further that one of the parcels is proved to have been sent through PW-8 Constable Diwan Chand vide RC No. 264/06 Ex. PQ along with the sample of seals, NCB forms in triplicate and copy of seizure memo for its analysis to CFSL, Chandigarh and this fact has been admitted by PW-8 Diwan Chand. Both these witnesses were cross-examined but nothing material could be extracted from them, however, they have stated that so long as the case property remained with them, it was never tampered with. Thus, from the time of its recovery till it reached in the Laboratory, the case property remained intact and this is so certified by the chemical analyst in his report Ext. PX, that sample parcel along with seal impressions ''H'' and T and the related case documents were handed over on 27.09.2006 by Constable Diwan Chand at CFSL, Chandigarh. Therefore, we hold that the link evidence is complete and hostility of PW-1 Pushkar Raj and non-examination of witness Raj Kumar is not fatal to the prosecution case to this extent. But before convicting the accused under the offence charged, the prosecution is required to prove that the recovered stuff was charas within the meaning of Section 2(iii) of the Act.

"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.

In the instant case, the result of the examination as contained in report Ex. PX reads as under:

Various laboratory tests were carried out with exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicted the cannabinols including tetrahydrocannabinol. Microscopy indicted the presence of characteristic cystolithic hair. The results thus obtained have been analyzed as extracted below:

Exhibit-1 is a sample of charas.

From the report, it is evident that this sample was of charas, as opined by Mr. A.K. Dalela, Junior Scientific Officer (Explosives) and signed by Dr. R.S. Verma, Director, CFSL.

As per report, reproduced hereinabove, it is clear that the stuff was opined to be charas on account of presence of cannabinols including tetrahydrocannabinol and on microscopy indicated the presence of characteristic cystolithic hair. The same report was under the scrutiny of the Division Bench of this Court in Sunil versus State of H.P., along with its connected matters (supra) and Dr. R.S. Verma, who was also examined as PW-11 by the trial Court in one of the cases therein, had admitted that the charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with charas and that resin containing tetrahydrocannabinol is charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyse the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin. Further, in one of the cases decided along with the Sunil''s case (supra), while appearing as a defence witness, he admitted that tetrahydrocannabinol, which is the active agent in the resin and that it is the presence of tetrahydrocannabinol, which shows that the sample stuff is a cannabis product. His saying that presence of tetrahydrocannabinol shows that the stuff is cannabis product clearly suggests that the test conducted by him was to find out if the stuff was a product of cannabis and not the specific product, defined as Charas in Section 2(iii)(a) of the Act. This Court had observed in Sunil''s case (supra) that three of them are defined in Section 2(iii) of the Act and there could also be some others which are not included in the definition of cannabis (hemp) under the definition aforesaid.

After examining the whole matter, it was concluded that report in question did not confirm to the statutory definition of charas, therefore, accused could not have been convicted and sentenced for the offence punishable u/s 20 of the Act.

In the instant case, the report of chemical examiner does not say anything about the presence of resin or cannabis plant, which is sine qua non to fall the stuff within the definition of Section 2(iii) of the Act. An attempt was made by the prosecution to get tested the remaining bulk from the State Forensic Science Laboratory by moving an application Cr. M.P. No. 296/2011, this application was allowed. Another application Cr. M.P. No. 190/2013 was moved by the State informing the Court that these sample parcels and the remaining bulk were returned by the CFSL, Junga on the ground that the sample of seal along with bulk was neither clear nor decipherable, this application was moved u/s 482 of the Code of Criminal Procedure. While directing the chemical examiner to examine the case property as well as sample ''as it is'' and supply the report to the SHO concerned, this application was dismissed as the identity of the sample parcels and bulk was very much in question by placing reliance on Thana Singh Vs. Central Bureau of Narcotics, .

In view of the above and totality of the circumstances, the report in question Ex. PX is not in conformity with law, as such accused deserves to be acquitted by giving her benefit of doubt.

Consequently, this appeal is allowed and the accused, who is undergoing sentence, be released forthwith, if not required in any other case. Registry is directed to prepare and send the release warrants to the Superintendent Jail concerned in conformity with this judgment. The appeal stands disposed of.