State of Himachal Pradesh vs Vidya Pawan, Pardeep Kumar, Sohan Lal and Chhote Lal

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 29.11.2005 passed in Sessions Trial No. 1 of 2005 passed by learned Sessions Judge, Kinnaur, District Shimla, H.P., acquitting the accused/respondent for the offences under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act). As per the prosecution on 13.12.2004 on telephonic information, police officials proceeded to Village Dev Nagar and apprehended the accused persons in a vehicle. On search of a polythene bag, charas of 1 kilogram 450 grams were recovered, out of which two samples of 25 grams each were separated and the samples were sent for chemical examination. After chemical examiner report and investigation in detail, the accused were charged with the aforesaid offence.

In order to prove its case, prosecution examined as many as 11 prosecution witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

The learned Sessions Judge, on appraisal 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 considered, referred and relied upon by the learned Sessions Judge, one important aspect which requires consideration in the present case is Ex. PX reveals that NCB form cannot be said to have been filled up at the spot and in view of the chemical examination report as indicated in Ex. PX, it appears that 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 30.07%. In these circumstances, the chemical examiner has opined that the contraband good recovered 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 held that the contraband good so recovered cannot be said to be charas. In order to arrive at such findings, this Court (DB) in Subhash Sharma @ Bhasi''s case has referred and relied upon the paragraphs 15 & 16, which are extracted herein below:

"15. ... 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 vis-�-vis 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 above observations made by this Court in Subhash Sharma &@ Bhasi''s case (supra) and in view of the chemical examination report, as indicated in Ex. PX, in our considered view, the contraband good alleged to have been seized in the present case cannot be said to have been charas. In our considered view the prosecution has failed to bring home the guilt to the accused/respondents. As such the Criminal Appeal, being devoid of merits, is accordingly dismissed. Bail bonds, furnished by the respondents, are hereby discharged.