State of Himachal Pradesh vs Surajmal

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 20.4.2002 passed in Sessions trial No. 6-ST/7 of 2002 by Sessions Judge, Sirmour at Nahan, acquitting the accused/respondent for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act).

The accused/respondent had earlier engaged Mr. Vinod Sharma, Advocate, who has ceased to be an Advocate, as such in reference to a notice served to the accused/respondent, he has appeared before us today to engage a legal aid counsel. Sh. Munish Sharma, on request has agreed to assist this Court as Amicus Curiae.

As per the prosecution case on 4.11.2001 at about 5.0 P.M., police apprehended the accused/respondent and recovered 1 K.G. of charas from the bag of polythene being carried by the accused/respondent. Out of the recovered charas, two samples of 100 grams each were taken and those were put in parcels under seal impression "H" and samples were sent for chemical examination. After investigation, accused/respondent was charged 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.

On analysis of the prosecution witnesses and materials on record and in reference to the discrepancies and contradictions emanating from the prosecution witnesses, 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, one important aspect emanating from Ex. P-H, reveals that on chemical examination, the chemical examiner on microscopic examination found cystholithic hair present and beam''s alkaline test was found to be positive and resin up to 23.10% in the sample and on that basis, chemical examiner has indicated the recovered contraband good to be charas.

In similar facts and circumstances, this Court (Division Bench) has already taken a similar view vide judgment dated 19.9.2011, Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi). The relevant paragraph 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 observations made by this Court in Subhash Sharma @ Bhasi case (supra), the contraband got recovered in the present case cannot be said to be charas, as such in our considered view, the prosecution cannot said to have brought 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.

We put word of appreciation for assistance rendered by Mr. Munish Sharma, as Amicus Curiae in the present case.