State of H.P. vs Aehsan

Dev Darshan Sud, J.—The State appeals against the judgment of learned Additional Sessions Judge, Fast Track Court, Shimla acquitting the respondent for offences u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as ''the Act''). A number of submissions have been made by learned Additional Advocate General in support of his contentions that the judgment of the learned trial Court cannot be sustained more especially in view of the statements of PW1 Shri Virender Singh, PW6 Madan Lal, PW8 Chet Ram and PW13 Anil Dutt.

Before adverting to these submissions, we have gone through the record. Ext. PJ which is the report of the Forensic Science Laboratory stating that on microscopic examination cystolithic hair were found present, the Beam''s Alkaline Test was positive and resin was found to be 22.0% and opined that the contraband substance contained the contents of charas.

In Sunil Kumar vs. State of H.P. Latest HLJ 2010 (HP) 207 the Division Bench of this Court holds:-

As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, Ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like Bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis.

According to Parikh''s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology in the case of Bhang it is 15 per cent, in the case of Ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 percent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of Bhang, i.e. the tried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, Ganja or mixture as defined in Section 2(iii) of the Act, which is an offence, u/s 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or Ganja and are rather specifically excluded from the definition of Ganja, unless accompany the flowering and fruiting tops of the plant.

In view of the above stated position, we hold that Experts'' reports in none of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility of the stuff recovered from them being only Bhang, i.e. the tried leaves of cannabis plant, possession of which is no offence, cannot be ruled out."

(at pp 215-216)

This judgment has neither been set aside nor reversed, varied or modified. In these circumstances, without going into the other aspects of the case, we hold that it has not been proved that recovery of the contraband is in consonance with the provisions of the Act. We also hold that the recovery cannot be considered as certified that the accused was in possession of the contraband substance namely charas. We therefore find no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the accused stand discharged.