State of Himachal Pradesh vs Taru

Justice R.B. Misra,J

The present Criminal Appeal has come up for adjudication after the grant of leave to appeal u/s 378 (3) of the Code of criminal Procedure in reference to judgment dated 16.3.2007, passed by Learned Special Judge, Chamba Division, Chamba, H.P., in Sessions Trial No.30 of 2006, acquitting the alleged accused/respondent u/s 20 of the Narcotic Psychotropic Substances Act, 1985 (in short ''NDPS Act''), in reference to FIR No.8 of 2006 dated 12.4.2006. The prosecution case, in brief, is that on 12.4.2006, at about 10:00 AM, the police party apprehended the accused-respondent and recovered 1 kilogram and 300 grams of charas from his possession. Two samples of 25 grams each were taken out from the recovered charas and sealed with seal impression ''K. Remaining bulk was also sealed with same seal. On 17.4.2006, two sealed samples along with ''NCB forms'' were sent for chemical examination. Keeping in view the Chemical Examiner''s report and the investigation, accused was charged for the aforesaid offence.

In order to prove its case, the prosecution examined as many as 13 prosecution witnesses. Whereas, the accused / respondent through his statement u/s 313 of Cr.P.C. has denied the prosecution case.

On analysis of the prosecution witnesses and material on record, learned Special Judge, Chamba Division, Chamba, has arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter alia on many other grounds, one important aspect which requires consideration is that on perusal of Ex.PW.10/E, it appears that ''NCB Form'' was not filled in, on the spot. The Chemical Examiner has opined that on microscopic examination cystolithic hair were found present. Beam alkaline test was found positive and resin was found 27.91%. In these circumstances, the Chemical Examiner has opined that contraband good so recovered was charas.

In similar facts and circumstances, this Court (DB) has taken a view vide judgment dated 19.9.2011 passed in Cr.Appeal No.391 of 2002 (State of H.P. Versus Subhash Sharma @ Bhasi) that the contraband good recovered cannot be said to be charas. The relevant paragraph of the aforesaid judgment is reproduced as below:-

Also we find that the report of the analysis Ex.PW.11/A though mentions about the presence of cystholithic hair and beams alkaline test positive but it does not say that the resin content of 28.04% was of a cannabis plant. Based upon the above, it is opined that the exhibit contained the content of charas. 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 (H)) 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 on 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 view of the observations made by this Court (DB) in Subhash Sharma @ Bhasi (supra) and in view of the Chemical Examiner''s report, we are of the considered view that the contraband good so recovered in the present case cannot be said to be charas. As such, benefit of doubt has to be given to the accused-respondent.

In our considered view, the prosecution has failed to bring home the guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. Bail bonds furnished by the respondent/accused are hereby discharged.