State of Himachal Pradesh vs Khudu Ram

R.B. Misra, Judge

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 10th December, 2004, passed in Sessions trial No. 87 of 2003 by Additional Sessions Judge (Fast Track), Kullu, Himachal Pradesh, 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 8th May, 2003 at about 4 a.m., ASI Shri Ram Karan (PW-8) alongwith Head Constable Shri Gangbir Singh, Constable Shri Pratap Singh (PW-6) and Constable Shri Dalip Singh (PW-7), while on patrol duty and Nakabandi noticed that accused-respondent was coming from Manali side, on foot, with a ''pithu'' (bag). On seeing the police he ran towards down-side, however, he was overpowered and after apprising him, search was conducted. No independent witness was available, but when search of his bag was conducted, four polythene bags, containing Charas in the shape of sticks and tablets were recovered, which on measurement were found to be 4 kgs. Two samples each weighing 25 grams were separated from each of the polythene bags and the samples and the bulk charas were sealed with seal impression ''D''. NCB form Ex. PW-1/C was filled up and two specimen samples were sent for chemical examination through Constable Shri Pratap Singh (PW-6). Ruka Ex. PW8/B was sent through Constable Shri Dalip Singh (PW-7) and in that reference FIR Ex. PW-5/A was registered. After completion of investigation, accused-respondent was charged for the aforesaid offence.

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

On analysis of the prosecution witnesses, material on record, inconsistencies and contradictions in the statements of the prosecution witnesses, learned Additional Sessions Judge (FTC) has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt.

Besides the above analysis, we also notice that inter alia on many of other grounds relied upon by the learned Sessions Judge, one important aspect of the case, which needs consideration, is that the contraband was recovered as per NCB Form Ex. PW-1/C. It appears that the said NCB Form Ex. PW-1/C was not prepared on the spot because in Item No. 1, FIR number was mentioned in the same ink and in the same fashion in which the other items of the NCB form has been written. It also appears that the Chemical Examiner, on microscopic examination, found cystolithic hair present and beam''s alkaline test as positive and resin was found to be present to the extent of 32.41 in the samples and on the basis of such analysis, the Chemical Examiner opined that the recovered contraband good was charas.

In similar facts and circumstances, this Court (Division Bench) has taken a view vide judgment dated 19.9.2011, Cr. Appeal No. 391 of 2002 State of H.P. v. Subhash Sharma @ Bhasi) that contraband recovered cannot be said to be charas for the reasons indicated in paragraphs No. 15 & 16 of the aforesaid judgment. The relevant paragraphs No. 15 & 16 of Subhash Sharma @ Bhasi''s case (supra) are 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 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 liquod 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 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 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 merit, is accordingly dismissed. Bail bonds, furnished by the respondent, are hereby discharged.