State of H.P. vs Bipan Kumar

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 1.4.205 passed in Sessions trial No. 21 of 2004 by learned Sessions Judge, Hamirpur, acquitting the respondent/accused for the offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called NDPS Act).

As per prosecution case, on 22.5.2003, the police party while patrolling, received an information that the accused was dealing in sale and purchase of charas. On such information, police party went to the shop of the accused/respondent. On seeing the police party, accused/respondent ran towards back side of the shop to the jungle with an envelope in his hand. The accused/respondent was overpowered him and on his search charas in the shape of sticks was recovered from his possession, which on measurement was found to be 550 grams. Two samples of 250 grams each were taken from the contraband good and seal impression �S� was put on it and remaining contraband good was kept in a separate parcel. Samples were sent for chemical examination. On completion of investigation, the accused/respondent was charged for the aforesaid offence.

In order to prove its case, prosecution examined as many as 11 prosecution witnesses. Whereas, the accused/respondent in his statement u/s 313 of the Code of Criminal Procedure denied the prosecution case.

On analysis of prosecution witnesses and materials on record and keeping in view the contradictions and inconsistencies, learned Sessions Judge has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter alia on the grounds taken by learned Sessions Judge, one important aspect emanating from the record cannot be ignored. On analysis of Ex. PW-9/D, chemical examination report, it appears that in contraband good on examination by Chemical Examiner, more specifically on microscopic examination, cystolithic hair was found to be present and beam�s alkaline test was found positive. Resin upto 32.77% was found present in the contraband good. On these parameters, the Chemical Examiner, H.P. CTL, Kandaghat has opined that the contraband good is charas. In similar facts and circumstances, this Court (Division Bench) vide judgment dated 19.9.2011, Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi) has taken a view that the contraband good cannot be said to be charas for reasons indicated in paragraph 15 of the aforesaid judgment. For reference, the relevant paragraph of Subash Sharma @ Bhasi�s case is extracted herein below:-

� � � 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 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 liquod 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 aforesaid analysis, in addition to the points referred and relied by learned Sessions Judge, on the observations made by this Court in Subash Sharma @ Bhasi�s case (supra), alone, the present criminal appeal is vitiated, as such the criminal appeal being devoid of merits is dismissed.

Bail bonds, furnished by the respondent, are hereby discharged.