State of H.P. vs Inder Singh

R.B. Misra, J.—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 9.8.2004, passed by the learned Addl. Sessions Judge, Fast Track, Kullu in Sessions Trial No. 85/03, RBT. No. 13/03 acquitting the accused/respondent for offences u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called ND&PS Act) in reference to FIR No.176 of 2003 dated 16.04.2003.

The prosecution case in brief is that on 16.04.2003 at about 11.30 a.m. ASI Khem Chand (PW8) along with other police officials while on patrolling duty apprehended accused/respondent with a bag being carried by him. On seeing the police, he became nervous and tried to flee away. On search in the presence of police officials, 4 kg 500 grams of charas was recovered. Out of which two samples 25 grams of each were separated and were packed and sealed with seal impression "H". Remaining charas along with bag was also separately packed and sealed with seal impression ''H'', ''NCB form'', Ex. PW2/C was filled up. Seal impression, Ex. PW8/B was retained and samples were sent for chemcial examination. After investigation, accused/ respondent was charged for the aforesaid offence.

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

Learned Additional Sessions Judge, Fast Track Court, Kullu on analysis of the prosecution evidences and materials on record, has found that neither independent witnesses were associated nor they were examined in present case. The evidences of the official witnesses were not found trustworthy. Keeping in view the contradictions and discrepancies emanating from the statements of the officials witnesses, the prosecution was found, having not been proved the guilt of the accused/respondent beyond reasonable doubt. We also notice that Ex. PW2/C, ''NCB form'' does not appear to have been prepared on the spot. Chemical Examiner though has opined that the contraband recovered from the accused on that fateful day was charas. However, on microscopic examination, the chemical examiner has found that cystolithic hairs were present and Beam''s alkaline test was positive and resin was found to be present in the sample to the extent of 29.32%. However, chemical examiner has not given the true report that the contents are actually charas.

this Court (DB) (in which one of us Hon''ble R.B. Misra, J. was member) has already taken a view through judgment dated 19.9.2011 passed in Criminal Appeal No. 391 of 2002 (State of H. P. versus Subhash Sharma @ Bhasi). In view of the observations made therein the report of chemical examiner cannot be said to have correctly given that the contents of sample recovered on 16.4.2003 is actually charas. The relevant observations made in paragraphs No.15 and 16 in Subhash Sharma alias Bhasi''s case (Supra) are 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 (DB), the prosecution case also becomes doubtful, as such we can safely say that the prosecution has failed to bring home the guilt to the accused/respondent. Accordingly, criminal appeal being devoid of merit is dismissed. Bail bond furnished by the respondent/accused is discharged.