State of Himachal Pradesh vs Prem Lal and Narinder Kumar

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 19.1.2005 passed in Sessions trial No. 3 of 2004 by Sessions Judge, Bilaspur, H.P., acquitting the accused/respondents for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act), in reference to FIR No. 226 of 2003.

The prosecution case in brief is that, on 12.12.2003, SHO Police Station Barmana, while traffic checking along with other police officials detected a Jeep No. H.P-64-1977, which has tried to escape, however, was apprehended and a gunny bag was recovered, from which charas was taken out. On weighing the contraband good was found 5 Kgs. 750 grams. Two sample was taken separately, which were sealed and samples were sent for chemical examination. On completion of investigation, the accused/respondent was changed for the aforesaid offence.

In order to prove its case, prosecution examined as many as 7 prosecution witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

PW-1, Yog Raj has stated that when on 12.12.2003 police stopped a jeep, three persons sitting on the back side of the jeep ran away with a Boru while 2 persons sitting on front seat including the driver were apprehended. Whereas PW-2, Sh. Kashmir Singh has stated that in December, 2003 he was called by the police from his shop by saying that a jeep was to be checked up and when the jeep was stopped three persons sitting on the bask seat of the jeep ran away and two persons sitting on the front seat remained in the jeep. Despite following those persons, they were not apprehended, but the police brought a gunny bag stating that those persons had thrown the gunny bag. However, these two independent witnesses have declared hostile.

On analysis of the prosecution witnesses including the officials witnesses, materials on record and keeping in view the discrepancies and contradictions, learned Sessions Judge has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt. Beside above analysis, we also notice that inter alia on many of other grounds relied by the learned Sessions Judge, one important aspect of the case that when contraband good was recovered as per NCB Form Ex. PW-7/F, it appears that NCB Form was not filled in at the spot. It also appears that Chemical Examiner on microscopic examination found cystholithic hair present and beam''s alkaline test as positive and resin up to 27.81% in the sample and on the basis of such analysis, chemical examiner has found 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 good recovered cannot be said to be charas for the reasons indicated in paragraph 15 of the aforesaid judgment. The relevant paragraph 15 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 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 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/respondents. As such the Criminal Appeal, being devoid of any merits, is accordingly dismissed.

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