State of H.P. vs Amar Nath

Dev Darshan Sood, J.

CMP No. 30 of 2013

The State has preferred this application u/s 391 read with Section 91 and 482 of the Criminal Procedure Code (hereinafter ''Cr.P.C.'') praying that the bulk sample of charas, which is in the custody of police, be sent for re-analysis to the Forensic Science Laboratory. We cannot accept this contention as in Thana Singh Vs. Central Bureau of Narcotics, the Supreme Court holds:-

The NDPS Act itself does not permit re-sampling or retesting of samples. Yet, there has been a trend to the contrary; NDPS courts have been consistently obliging to applications for re-testing and re- sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [See: State of Kerala Vs. Deepak P. Shah, ] Nihal Khan Vs. The State (Govt of Nct of Delhi), or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re-testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the Legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The Legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re- testing.

Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above-stated factors. Further, in light of Section 52A of the NDPS Act, which permits swift disposal of some hazardous substances, the time frame within which any application for re-testing may be permitted ought to be strictly defined.

This decision has been followed by this Court in Cr. Appeal No. 34 of 2007, titled Sher Singh vs. State of H.P. In this view of the matter, we do not find any circumstance of exceptional nature which would entitle the State to invoke the provision of Section 391 of the Cr.P.C. to urge that sample be sent for re-analyses. In these circumstances, we reject this application.

Cr. Appeal No. 356 of 2004

The State is aggrieved by the judgment of learned Sessions Judge, Kullu acquitting the accused for offences u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act'').

A number of submissions have been made by learned Additional Advocate General that the learned trial Court has not appreciated the evidence of the prosecution in its true perspective in accordance with the law laid down by the Supreme Court in C. Magesh and Others etc. Vs. State of Karnataka,

Before adverting this submission, what we find is that Ext.PW9/A the report of the Chemical Analyst states that on microscopic examination cystolithic hair were found present, the Beam''s Alkaline Test was positive and resin was found to be 32.88% and opined that the contraband substance contained the contents of charas.

In Criminal Appeal No. 319 of 2002, titled as State of H.P. vs. Subhash Sharma @ Bhasi, decided on 19.9.2011 the Division Bench of this Court holds:-- 15. ...The cystolithic 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 take 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-�-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.

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.

This judgment has been followed in Cr. Appeal No. 172 of 2006, titled State of H.P. vs. Ramesh Kumar. We therefore hold that the prosecution has been unable to prove its case against the accused in accordance with law. Appeal stands dismissed. Bail bonds furnished by the accused stand discharged.