State of H.P. vs Parveen Kumar and Others

Dev Darshan Sud, J.—State has appealed against the judgment dated 10.10.2006 of the learned Special Judge, Chamba Division, Chamba, passed in Sessions Case No. 6 of 2006, titled as State of Himachal Pradesh versus Parveen Kumar and others, challenging the acquittal of the respondents (hereinafter referred to as the accused), who have been charged for having committed offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act). Grounds for acquittal of the accused by the trial Court are (a) that independent witnesses do not support the case of the prosecution; and (b) there is variation of weight of the sample.

The State has filed Cr.MP No. 673 of 2012 for permission to lead additional evidence. What is pleaded in the application by the State is that since this Court in Sunil Kumar versus State Latest HLJ 2010 (HP) 207 has held that the percentage of resin must be mentioned in the report of the Chemical Analyst, it has not been done in this case. Since a large quantity of charas, i.e. 12 Kgs., has been seized in this case, the remaining sample be ordered to be sent to the Forensic Science Laboratory for re-examination.

In Thana Singh Vs. Central Bureau of Narcotics, Hon''ble Supreme Court held as under:

Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/resampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act. (at pp. 601).

In this case, we do not find any rare of compelling circumstances for sending the second sample for re-test/resampling to the Laboratory after a period of more than seven years. We, therefore, hold that the application is not maintainable. Cr.MP No. 673 of 2012 is dismissed.

Learned counsel for the accused has drawn our attention to the report (Ex. PW-17/A) of the Chemical Examiner, which reads as under:

SECTION FOR THE USE IN THE LABORATORY

Lab No. 3477/2 1-12-2005

Date of receipt in the Laboratory: 1-12-2005

Weight (net weight) as found in the laboratory: 15.7912 gms.

Date of conducting the test. Result of:-15-6-2006

a) Qualitative Tests.

b) Results of quantitative Tests.

c) General observation of the chemist

(a) Microscopic exam: Cystolithic hairs present.

Beam''s alkaline test = Positive

(b) Resin = 29.01%

(c) I am of the opinion that the exhibit contains the contents of charas.

In similar facts and circumstances, this Court (Division Bench) has taken a view vide judgment dated 19.9.2011, Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi) that contraband recovered cannot be said to be charas for the reasons indicated in paragraphs No. 15 & 16 of the aforesaid judgment. The relevant paragraphs No. 15 & 16 of Subhash Sharma @ Bhasi''s case (supra) are extracted herein below:-

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 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 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.

In view of the law settled in Subhash Sharma @ Bhasi''s case (supra), in the present case also the stuff recovered from the accused cannot be said to be charas. As such, in our considered view, prosecution cannot be said to have brought home the guilt of the accused. This appeal, being devoid of any merit, is accordingly dismissed. Bail bonds, furnished by the respondents, are hereby discharged.

Appeal stands disposed of, so also pending application(s), if any.