State of H.P. vs Rajesh Thakur

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 12.1.2005 passed in Sessions trial No. 37-S/7 of 2004/03 by Additional Sessions Judge, (Fast Track Court), Shimla, H.P.

The prosecution case is that, on 18.9.2003 at about 6.15 P.M., ASI Harish Kumar along with other police officials apprehended the accused/respondent, who after seeing the police officials tried to run away. After search, he was found carrying contraband good in a polythene bag, measuring 1 Kgs. 240 grams, out of which two samples of 25 grams each were separated, which were sealed in different parcels with seal impression "T" and the samples were sent for chemical examiner. After completion of investigation, the accused/respondent was changed for offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act).

In order to prove its case, prosecution examined as many as 12 prosecution witnesses. Whereas the accused/respondent in his statement u/s 313 of the Code of Criminal Procedure denied the prosecution case.

The two independent prosecution witnesses i.e. PW-1Sh. Chet Ram and PW-2, Roshan Lal have not supported the prosecution case. On scrutiny of materials on record, prosecution witnesses and keeping in view the discrepancies and material contradictions, learned Additional Sessions Judge, Fast Track Court, Shimla has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter alia on several grounds considered by learned Additional Sessions Judge, we notice that the contraband good was recovered, qua which nothing has been revealed from the NCB form Ex. P-R that the same was prepared on the spot. However, on microscopic examination, by the Chemical Examiner, cystolithic heir was found to be present and beam''s alkaline test positive and resin upto 21.92% was found present in the contraband good. In view of such analysis, the Chemical Examiner has indicated that the contraband good was 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. The relevant paragraph 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 observations, the present contraband good recovered, cannot be said to be charas, as such the Criminal Appeal, being devoid of any merits, is accordingly dismissed.

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