State of H.P. vs Bam Padha Adak

R.B. Misra, J.—Ms. Divya Sood, Advocate consented to assist this Court on behalf of the respondent/accused.

The present criminal appeal has come up for consideration after leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure, against the judgment dated 01.10.204, passed by the learned Sessions Judge, Kullu in Sessions trial No. 35 of 2004, acquitting the accused/respondent for offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called ND&PS Act) in reference to FIR No. 569 of 2003 dated 07.12.2003.

The prosecution case in brief is that on 07.12.2003 SI Tameshwar Singh (PW7) along with other police officials apprehended accused/respondent and has recovered 4.350 kilograms of charas and after taking out samples and sealing it, sent the samples to Chemical Examiner for analysis. After investigation, the respondent/accused was charged for the aforesaid offence.

In order to prove its case, the prosecution has examined as many as 10 prosecution witnesses, whereas in his statement u/s 313 Cr.P.C., the accused/respondent denied the prosecution case.

Learned Sessions Judge, Kullu after analysis of the prosecution evidences and material on record, has found that the discrepancies and contradictions are emanating from the statements of the prosecution witnesses and that the ''NCB Form'' was not filled up on the spot. Learned Sessions Judge, Kullu has rightly arrived at the conclusion that the prosecution has failed to prove the guilt of the accused/respondent beyond reasonable doubt inter alia on many of the grounds. We also apparently notice that Ex. PW2/D also does not prove that the sample recovered was actually charas. this Court (DB) (in which one of us Hon''ble R.B. Misra, J. was member) on 19.9.2011 while disposing of the Criminal Appeal No. 391 of 2002 (State of H. P. versus Subhash Sharma @ Bhasi) has observed in the relevant paragraphs as under:

Also we find that the report of the analysis Ex. PW11/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 plan. 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 o 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 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 failing short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considering opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed.

In view of the aforesaid observations made by this Court, sample of contraband good analyst by the chemical Examiner in present case cannot be said to be charas and the report of Chemical Analyst is also not meeting the parameters and the definition of charas. In our considered view, the prosecution has failed to bring home the guilt to the accused. Accordingly, criminal appeal being devoid of merit is dismissed. Bail bond furnished by the respondent/accused is discharged.

We also record our appreciation for the valuable assistance rendered by Ms. Divya Sood, Advocate in present case.