State of Himachal Pradesh vs Kancha Tamang

R.B. Misra, J.—The present criminal appeal has come up for consideration after leave to appeal has been granted u/s 378 (3) of the Code of Criminal Procedure, against the judgment dated 30.6.2005 passed by the learned Sessions Judge, Kullu in Sessions trial No. 52-2004 acquitting the accused/respondent for offences u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called ND&PS Act) in reference to FIR No. 79/ 2001 dated 05.02.2004 The prosecution case, in brief, is that accused/respondent was apprehended and found in possession of 3.500 kilograms of Charas on 5.2.2004 at about 9.30 P.M. at Bajaura Check post while he was traveling in bus No. HP-39-4735. Two samples of 25 grams each were taken from the recovered charas and these samples were put into sealed parcels and samples were sent for chemical examination. After the completion of the investigation and keeping in view the report of chemical examiner, the accused was charged for the aforesaid offence.

In order to prove its case, the prosecution has examined as many as 10 witnesses, whereas in his statement u/s 313 Cr.P.C., the accused/respondent denied the prosecution case.

Keeping in view discrepancies and inconsistencies in the statements of the prosecution witnesses and material on record, the learned Sessions Judge has arrived at the findings that the prosecution has failed to prove the case beyond reasonable doubt against the accused. The important aspect which has to be noted is that in the similar facts and circumstances of this case, this Court (DB) (in which one of us Hon''ble R.B. Misra, J. was member) on 19.9.2011 while disposing of the Criminal Appeal No. 391 of 2002 State of H. P. versus Subhash Sharma @ Bhasi has observed in the relevant paragraphs as under:

Also we find that the report of the analysis Ex.PW11/A though mentions about the presence of cystholithic hair and beams alkaline test positive but it does not say that the resin content of 28.04 was of a cannabis plan. Based upon the above, it is opined that the exhibit contained the content of charas. The cystholithic hair is a fiber which could also be found in flowering tops o 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 viz-a-viz 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 failing short of requisite parameters 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 view of the aforesaid analysis made by this Court in Subhash Sharma alias Bhasi''s case (supra), in the present case we also find that the "NCB Form" Ex.PA does not reveal that the same was prepared on the spot, so much so, entries appear to have been made by the same ink and pen in one go as if it has been prepared by sitting at one place. Ex.PA indicates that the Chemical Analyst on microscopic examination of the contraband good has found cystolithic hair present and on quantitative, test the Chemical Analyst found Beam''s alkaline test positive and resin 34.08$% present in the sample. In these circumstances, the Chemical Analyst opined that the samples were that of charas.

In view of the aforesaid observations made by this Court in Subhash Sharma @ Bhasi''s case (supra), it is clear that the contraband good recovered in the present case cannot charas as such, conviction and sentence cannot be awarded against the accused. In the facts and circumstances of the case, we are of the considered view that the learned Sessions Judge had rightly arrived at the finding that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt to the accused. Accordingly criminal appeal being devoid of merit is dismissed. Bail bond furnished by the respondent/accused is discharged.