State of Himachal Pradesh vs Rakesh 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 13.6.2008 passed in Sessions Trial No. 4/2003 by learned Special Judge, Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., 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 10.10.2002 SI/SHO Om Prakash alongwith other police officials, namely, ASI Ram La, constable Rajesh Kumar, H.C. Shayam Lal, H.C. Man Singh, while present at Sidhayani for Naka Bandi, noticed HRTC Bus bearing No. HP-20A-2917 coming from Nek Chowk side which was going from Manali to Amritsar. On search of the said bus, accused/respondent sitting at seat No. 31, was frightened after seeing the police party. The yellow colour polythene envelop being carried by the accused was checked up, from which contraband good was recovered, which on weighing was found 1 K.G. Out of which two samples of 25 grams each were taken out and after putting the seal impression "T", the same was sent for chemical analysis and the remaining contraband good was kept in bulk. On completion of investigation, the accused/respondent was changed for the aforesaid offence.

In order to prove its case, prosecution examined as many as 14 prosecution witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

The learned Special Judge, Fast Track Court, on analysis of prosecution witnesses, material on record and keeping in view the inconsistencies and contradictions has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt.

Inter alia on many other grounds relied upon by the learned Special Judge, one important aspect which requires consideration is that in reference to contraband good recovered on 10.10.2002, the NCB form Ex. PW-13/C actually cannot be said to have been prepared on the spot the crime number etc. have been filled up by same pen with one go, as such doubt is created that NCB form was filled up on the spot. The chemical examiner on qualitative test on microscopic examination has found cystolithic heir present in the sample and beam''s alkaline test positive and general observation about the contraband good was said containing resin up to 22.41%. In these circumstances, the chemical examiner has opined that the content of sample was charas. In similar facts and circumstances, this Court (DB) vide its judgment dated 19th September, 2011, in Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi), has taken a view that the contraband good recovered cannot be said to be charas. For reference, the relevant extract of paragraphs 15 & 16 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 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 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 observations made herein above, in our considered view in present case also the contraband good recovered cannot be said to be charas. As such there is no scope of any interference in the impugned judgment. In our considered view, the prosecution has failed to bring home the guilt to the accused/respondent. As such the Criminal Appeal, being devoid of merits, is accordingly dismissed.

Bail bonds, furnished by the respondent, are hereby discharged. The accused/respondent kept in Sub Jail Kaithu in reference to our order dated 12th March, 2012, be released forthwith, unless required in any other case. Registry is directed to do the needful.

Copy Dasti.