State of Himachal Pradesh vs Lagan Dass

Justice R.B. Misra, J.—A request has been made to Ms. Suman Thakur, Advocate to assist this Court on behalf of the accused, who accordingly assists. 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 29.09, 2005, passed in Sessions trial No. 23 of 2004 by Sessions Judge, Una, Himachal Pradesh, acquitting the accused/respondent for the offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act).

The prosecution case in brief is that on 22.12.2003 at about 4 a.m., when a policy party headed by Mr. Surinder Sharma, the then SHO, P.S. Una was present at the Old Bus Stand, Una in connection with patrolling and Nakabandi, accused/respondent was seen coming from the side of new Bus Stand, carrying a bag on his right shoulder. On seeing the police party, the accused/respondent got perplexed and started running to escape from the spot. However on suspicion, he was apprehended and his bag was searched, from which a polythene bag wrapped in a ''Chadar'' (cloth sheet) was taken out. On searching the polythene bag, Charas in the shape of small sticks was recovered and on weighing, the recovered Charas was found to be 5 Kgs. Two samples each weighing 20 Gms, were taken out. The samples and the bulk Charas were sealed with seal impression ''A''. NCB form Ex.PC was filled up and the samples were sent for chemical examination. On receipt of Chemical Examiner''s report and completion of investigation, Challan was filed in the Court and the accused-respondent was charged for the aforesaid offence.

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

Learned Sessions Judge, Una after analysis of the prosecution witnesses and material on record, 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 NCB Form Ex. PC was not prepared on the spot because in Item No.1 entries were made in one go and with same ink. 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 30.15% 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. Vs. 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:- 15. ......... 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 as referred in NCB form Ex.PC, cannot be said to be Charas. As such, in our considered view, prosecution cannot be said to have brought home the guilt to the accused/respondent, hence, the Criminal Appeal, being devoid of any merit, is accordingly dismissed.

Bail bonds, furnished by the respondent, are hereby discharged.