State of Himachal Pradesh vs Ashok Kumar

Surinder Singh, J.—Heard and gone through the record. Acquittal of the respondent (hereinafter referred to as ''the accused), passed in Sessions Case No. 16 of 2006 decided on 23.11.2007, has been challenged by the State in the instant appeal, for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'', for allegedly keeping in his possession 105 grams of charas.

Shorn of unnecessary details, the case of the prosecution, as spelt out from the prosecution evidence, can be stated thus. On 23.5.2005 PW13 ASI Harbans Lal was present at bus stand Una, along with other police officials. In the meantime, PW1 Constable Jaswinder Singh who was deputed to collect secret information qua violation of excise and narcotics, came and informed him that accused has been dealing in narcotics in his shop situated at old bus stand, Una. On receiving this information, he jotted down the information in writing Ext. PW4/A to comply with the provisions of Section 42 of the Act and handed over the same to PW4 HHC Sher Bahadur to deliver it to the Superintendent of Police, Una, which was received by him at his residence at 0.35 hours on the same day.

Thereafter PW13 recorded statement Ext. PW1/A of Jaswinder Singh u/s 154 of the Code of Criminal Procedure and sent ruka for the registration of the case through PW5 Constable Suresh Kumar, which culminated into the present FIR.

The police party proceeded towards the shop of the accused and on the way included two independent witnesses, namely, PW2 Vijay Kumar and PW3 Ashok and formed raiding a party.

Accused was found present in his shop. PW13 aforesaid informed him the purpose of their visit and also expressed his apprehension that accused was in possession of charas. As such he gave an option orally as well as in writing Ext. PW10/A to the accused for his personal search as well as search of his shop either before Magistrate, Gazetted Officer or the police present at the spot being his legal right, in the presence of the independent witnesses. The accused opted to be searched himself as well his shop by the police present at the spot. To this effect, he made an endorsement on the said memo under his hand and signatures, copy whereof was also supplied to him.

Thereafter the members of raiding party rendered themselves to be searched by the accused but no incriminating material was found. To this effect memo Ext. PW2/C was prepared in the presence of witnesses.

PW13 ASI Harbans Lal thereafter conducted the search of the accused and recovered a polythene packet from the right side of his pant which contained 105 grams of stuff. Out of the recovered quantity, two samples of 10 grams each were separate and sealed with seal impression ''A''. Remaining bulk was also sealed with the same seal. Seal impression was taken on a piece of cloth. Case property was taken into possession vide memo Ext. PW10/D which was signed by the accused as well as by the independent witnesses aforesaid.

Site plan Ext. PW13/A of the place of alleged recovery was also prepared. Accused was arrested and grounds of arrest were informed to him in writing Ext. PW10/E.

NCB forms in triplicate, one of which is Ext. PW11/C were also filled on the spot. Facsimile of seal was also taken thereon. Thereafter the case property and NCB forms were produced before the PW11 SHO Ajay Rana in the police station. The case property was re-sealed by him with seal impression ''Y'' and filled in the necessary forms in the NCB forms from column Nos. 9 to 11. Facsimile of the seal used by him was also affixed thereon. The case property was deposited by Ajay Rana with PW12 MHC Rajesh Kumar along with NCB forms and seal impressions.

On 25.5.2005 one of the sample parcels along with copy of FIR and NCB forms was sent to CTL, Kandaghat through PW6 constable Karnail Singh for its deposit/analysis to which he deposited on the same day in the laboratory and after obtaining its receipt on his return, it was handed over to MHC Rajesh Kumar aforesaid. On its examination, sample tested positive for charas. The report is Ext. PW11/D. Special report was sent to the official superior within the statutory time.

After completing investigation, challan was presented in the Court for trial of the accused. He was accordingly charge-sheeted for the aforesaid offence to which he pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses and the accused was also examined u/s 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. His defence was that he was called in the office of CIA Staff and was falsely implicated in the case, though he admitted that he was running biri and cigarette shop only at old bus stand chowk. However, he did not lead any evidence in defence.

At the end of the trial, the accused was acquitted on the ground that the alleged independent witnesses turned hostile to the prosecution. Neither suggestion was put to PW2 Vijay Kumar that seal was handed over to him nor it was produced during the trial and further that there have been contradictions in the statements of the witnesses.

We have considered the rival contentions on behalf of the learned counsel for the parties and reappraised the evidence on record.

On reappraisal, we find that the independent witnesses are of no avail to the prosecution as having been declared hostile. They were extensively cross-examined by the learned Public Prosecutor after seeking permission from the learned trial Court but nothing material could be extracted. They stated that accused was in the office of CIA Staff where they were called by the police to complete the papers without reading and explaining over to them, their signatures were obtained. Though PW13 ASI Harbans Lal stated about the recovery in the aforesaid manner from the accused and production of the case property before Ajay Rana SHO but Ajay Rana did not say anything that after its re-sealing was handed over back to the Investigating Officer or to the MHC. Whereas MHC stated the case property was deposited by Ajay Rana with him. Pertinently, prosecution did not produce and prove on record the entries in the malkhana register and also the road certificate against which it was taken to the Laboratory by PW6 Karnail Singh. Further, PW11 Inspector Ajay Rana in his cross-examination stated that at the time when the case property was produced before him for the purpose of re-sealing, the sample seals were not produced before him by the investigating officer. Therefore, in our opinion, production of sample of seal was imperative to tally the seal impression which were affixed on the sample parcels as well as on the remaining bulk, in order to overrule the possibility of tampering, more specifically when the seal which was used on the spot was not proved to have been handed over to the independent witness.

The most disgusting feature in this case is report of analysis Ext. PW11/D which is the main base for prosecuting the accused. The sample parcel, as per report was received in the Laboratory on 25.8.2005 through Constable Karnail Singh. The qualitative and quantitative tests were undertaken in the Laboratory. The qualitative test consisted of microscopic examination whereby presence of cystholithic hair and beam''s alkaline tests were found present whereas on quantitative test, resin was found to be 32.08%. On the above basis, the, chemical examiner opined that the exhibit contained the contents of charas, but it did not say that the resin was of cannabis plant or that it also contained cannabinols including tetrahydrocannabinosl. Inter alia, a similar type of report came for its scrutiny before the Division Bench of this Court in Sunil Vs. State of Haryana and another , wherein, on the basis of medical authorities vis-a-vis the definition of ''charas'' under the Act, the Court came to the conclusion that it did not conform to the statutory definition of ''charas''.

''Charas'' is one of the three form 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 meant 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, 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.

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.

Thus being in possession of cannabis (hemp) is an offence, punishable u/s 20 of the Act. Punishment also varies according to the quantity possessed, as notified in the Schedule.

Thus, as per definition of ''charas'' reproduced herein above, resin is not an ingredient of ''charas'' but ''charas'' means the whole resin in whatever form, whether crude or purified of cannabis plant. In Sunil Kumar''s case (supra) the Court took note of the statement of the expert recorded before the learned Trial Court as well as in the High Court during the pendency of appeal and examined the similar reports in the light of the definition given in the Act and came to the conclusion that the report similar to the present case did not conform to the statutory definition of ''charas''.

Thus, sample so analyzed by the Laboratory does not conform to the definition of ''charas''.

Against the aforesaid background and the evidence discussed above, we also find that the link evidence in the instant case is not complete and the report of analysis did not show as to whether the resin was content of cannabis plant so as to fall within the statutory definition of charas.

For aforesaid reasons, in our considered opinion, the appeal filed by the State is devoid any merit and is accordingly dismissed.

The bail bonds entered upon by the accused during the proceedings of the case are hereby discharged. Send down the records.