State of H.P. vs Shyam Lal

Dev Darshan Sud, J.—The State is aggrieved by the judgment of learned Special Judge, Chamba acquitting the accused for offences u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ''the Act''). A number of submissions have been made by learned Additional Advocate General that the learned trial Court has not appreciated the evidence of the prosecution in accordance with the law laid down by the Supreme Court in C. Magesh and Others etc. Vs. State of Karnataka,

Before adverting this submission, what we find is that Ext. PW10/A the report of the Chemical Analyst states on microscopic examination cystolithic hair were found present, the Beam''s Alkaline Test was positive and resin was found to be 31.11% and opined that the contraband substance contained the contents of charas.

In Sun/7 Kumar vs. State of H.P. Latest HLJ 2010 (HP) 207 which judgment has been constantly followed by this Court in many cases including Cr. Appeal No. 172 of 2006, titled State of H.P. vs. Ramesh Kumar, in which it is held by this Court that:-

In the present case after going through the NCB-Form (Ext. PW7/C) it appears that the same was not prepared on the spot and in view of the chemical examiner''s report on microscopic examination cystolithic hair was found present and beam''s alkaline test was found positive. The Chemical Examiner has found that resin to the extent of 29.18% was present in the sample and on the basis of such analysis he opined that the recovered contraband good was Charas.

In similar facts and circumstances, the Division Bench of this Court while deciding Criminal Appeal No. 391 of 2002, titled as State of H.P. versus Subhash Sharma @ Bhasi, vide judgment dated 19.9.2011 has taken a view that the 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(Hi) (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 take 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.

After applying the verdict of Subhash Sharma (supra) in the present case we are of the considered view that in view of the observations in the report, indicated at Ext. PW7/C, the contraband goods recovered in the present case could also not be charas. As such, inter alia, on many other ground relied upon and considered by the learned Sessions Judge, Chamba to arrive at its findings the prosecution has failed to bring home the guilty to the accused beyond reasonable doubt. We are of the considered view that prosecution has failed to bring home the guilt to the accused. Accordingly, the criminal appeal, being devoid of any merit is dismissed. Bail bonds, furnished by the respondent, are hereby discharged.

We therefore hold that prosecution has been unable to prove its case against the accused in accordance with law. Appeal stands dismissed. Bail bonds furnished by the accused stand discharged.