State of Himachal Pradesh vs Harish Kumar Malik

Justice R.B. Misra, J.—The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure against the judgment dated 14.6.2004 passed by learned Sessions Judge, Solan, HP in Sessions trial No. 4-S/7 of 2004, acquitting the accused/respondent for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act). The prosecution case, in brief, is that on 15.1.2004, a W.T message was received by SHO, Police Station, Parwanoo from the Sub Divisional Police Officer, Parwanoo, directing him to organize a Nakka on the night intervening 15th and 16th January, 2004 on National Highway and near Negi Petrol Pump, Parwanoo, a bus coming from Rampur bound for Chandigarh was checked up and during checking accused Harish was found sitting on seat No. 24 with a rexine bag in his lap. On seeing the police officials accused tried to hide the bag. However, on search of bag, a polythene bag was taken out in which dark coloured stuff in the shape of balls and fingers were taken out, which on measurement was found to be 1 Kg 700 grams. Two samples, each weighing 50 grams, were separated. The samples were made up into two separate parcels and sealed with a seal impression ''M''. Samples were sent for chemical examination and NCB form was filled up and after investigation, accused/respondent was charged for the aforesaid offence.

In order to prove its case, prosecution examined as many as 11 prosecution witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

On analysis of the prosecution witnesses and materials on record and keeping in view the discrepancies and inconsistencies, learned Sessions Judge has arrived at finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter-alia, on many other points relied by trial court, one important aspects which require more attention is that in similar facts and circumstances, this Court (Division Bench) has taken a view vide judgment dated 19.9.2011 in Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi) that contraband good recovered in present case cannot be said to be ''charas'' for the reasons indicated in paragraph 15 of the aforesaid judgment. The relevant paragraphs 15 & 16 of Subhash Sharma @ Bhasi''s case (supra) is extracted herein below:-

...The cystholithic hair is a fiber which could also be found in flowering tops of the cannabis plant, but the definition of charas does not include other parts like flowering and fruiting tops, leaves or stem. The definition of charas is given in Section 2 (iii) (a) of the Act. Charas, 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. Since it does not make any mention whether this resin was of a cannabis plant. Therefore, in our opinion the report of analysis is discrepant. The Division Bench of this Court in which one of us (Surinder Singh, J) was also one of the Members Sunil Kumar versus State Latest HLJ 2010 (HP) 207 examined almost similar reports in a Bunch matters and taking note of the aforesaid definition of charas under the Act vis-�-vis the statement of the Experts recorded during the trial as well as before this Court, held that charas should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. Thus, in absence of the fact that it was also that of a cannabis plant, result of analysis cannot be said to have in conformity with the definition of charas. As such, the accused persons were given the benefit of doubt and were accordingly acquitted.

In the instant case, as already stated above, firstly the sample so analyzed by the laboratory could not be connected with the recovered stuff and secondly report of the analysis is falling short of requisite parameter to be in conformity with the definition of ''charas''. Therefore, in our considered opinion, the acquittal of the respondent cannot be interfered with. As such, the appeal sans merit and is accordingly dismissed.

In the present case also, after analysis of Ext PL, it appears that FIR number was mentioned in the same hand writing and doubt is created that the same was not prepared on the spot. On chemical analysis, as has been mentioned in Ext PL, it appears that on microscopic examination, cystholithic hair was found and Beams alkaline test was found positive. The resin was found up to 31.40% and in that respect, the same was said to be of ''charas''.

In view of the aforesaid observations made in Subhash Sharma @ Bhasi''s case (supra), in the present case also, the contraband good recovered cannot be said to be charas, as such in our considered view, prosecution cannot be said to have brought home the guilt of the accused/respondent.

As such the criminal appeal, being devoid of any merits, is accordingly dismissed. Bail bonds, furnished by the respondent, are hereby discharged.