State of Himachal Pradesh vs Sh. Satya Pal

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 25.6.2003 passed in Sessions Trial No. 1-S/7 of 2002 by learned Additional Sessions Judge, Solan, acquitting the accused/respondent for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act), in reference to FIR No. 97 of 2001. The prosecution case in brief is that, on 20.10.2001 at about 8.55 P.M. near Chail Chowk, Kandaghat, the accused were traveling in HRTC Bus No. HP-10-384 a Rohru Delhi bound bus was nabbed and on search of his bag, 2 KG 100 grams of charas was recovered from his possession. Two samples were taken out and after putting the seal, the same was sent for chemical analysis. On completion of investigation, the accused/respondent was changed for the aforesaid offence.

In order to prove its case, prosecution examined as many as 12 prosecution witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

The learned Additional Sessions Judge, Solan on analysis of prosecution witnesses 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 Additional Sessions Judge, one important aspect to be considered by this Court is that in similar facts and circumstances vide judgment dated 19th September, 2011, in Cr. Appeal No. 391 of 2002 State of H.P. Vs. Subhash Sharma @ Bhasi, this Court has taken a view that the contraband good recovered cannot be said to be charas. The relevant extract of paragraph 15 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 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.

On analysis of NCB form, Ex. PW-10/B, it appears that the NCB form has been filled on the spot. The chemical examiner on microscopic examination has found that cystolithic heir present in the sample and beam''s alkaline test positive and resin was found to the extent of 33.92%. In these facts and circumstances, the contraband good so recovered was charas. In view of the verdict of this Court in Subhash Sharma @ Bhasi''s case (supra) and on analysis of NCB form, we are of the considered view that the contraband good recovered is not chars, as such in our considered view, prosecution cannot be said to bring home the guilt to the accused/respondent. As such the Criminal Appeal, being devoid of any merits, is accordingly dismissed.

Bail bonds, furnished by the respondent, are hereby discharged. Before parting with this judgment, we would like to record our appreciation to Mr. Paras Dogra, Advocate, for the assistance rendered by him.