Tula Ram vs State of H.P.

Surinder Singh, J.—The Appellant hereinafter referred as ''the accused'' has challenged the judgment of his conviction and order of sentence, passed by the learned trial Court u/s 20B of the Narcotic Drugs and Psychotropic Substances Act, in short ''the Act'' whereby he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5,000/- with default clause, for allegedly keeping in possession 120 grams of Charas.

Heard and gone through the evidence on record.

Precisely the case of the prosecution can be stated thus. On 24th September, 2003, PW10 Inspector/SHO Gurdial Singh was heading a police patrol party and was present near Petrol Pump situated between DC Office-Saproon road. He got a secret information that two persons were having Charas in their possession and were coming from Saproon side. He jotted down the said information in writing Ext.PM and sent it to the Superintendent of Police, Solan through PW5 Constable Faiz Khan. Thereafter he associated PW1 Manish Kumar and PW2 Bhupinder Singh as independent witnesses and waited for the aforesaid persons.

(ii) Two persons namely Chet Ram son of Mansha Ram and another Tula Ram son of Paras Ram accused were noticed coming from the opposite side, but on seeing the police, they tried to flee away, but were chased and over-powered near Sunder Cinema.

(iii) Police told them that they have information that each of them were having contraband in their possession, as such, gave options in writing to each of them and particularly the accused herein vide memo Ext.PB to be searched before the Magistrate or a Gazetted Officer and it was his right to exercise his option, but in turn, the accused opted to be searched by the police party verbally as well as in writing Ext.PB/1 duly signed by him.

(iv) PW10 Inspector/SHO Gurdial Singh rendered himself to be searched by the accused, but he did not conduct the search of the said Police Officer. Thereafter, accused was searched by the Inspector/SHO aforesaid and recovered 120 grams stuff, which was wrapped in the plastic bag and was kept hidden inside the socks which was worn by him in the right foot.

(v) Police separated two samples of 25 grams each and each of the samples were sealed with seal impression of English letter "H". Remaining bulk was also sealed with the same seal. The seal impression was obtained on a piece of cloth. Accused was arrested and grounds of arrest were informed to him in writing vide memo Ext.PD. NCB forms in triplicate were filled in, one of which is Ext.PP.

(vi) Similarly, from another accused Chet Ram, 80 grams of Charas was recovered from the socks worn by him on the right foot and the samples were taken and the stuff which was recovered from both the persons were taken into possession vide seizure memo Ext.PC in the presence of the witnesses.

(vii) Ruqa Ext.PF was sent for the registration of the case, which culminated into FIR Ext.PG.

(viii) Special report Ext.PN was sent to the officer superior within the statutory period.

(ix) Case property was deposited with PW4 MHC Madan Lal. Thereafter the samples were sent for its analysis through PW8 Constable Chaman Lal, to which he deposited on 25.9.2003 in CTL, Kandaghat and as per report of Chemical Examiner Ext.PP/1, the exhibit contained the contents of Charas.

(x) Site plan of the place of recovery was prepared and police recorded statements of the witnesses u/s 161 of the Code of Criminal Procedure. Challan of Chet Ram was separated. However, after completion of the challan against accused Tula Ram, it was presented in the Court for his trial, for the offence aforesaid. The accused abjured his guilt and claimed trial.

(xi) To prove its case, prosecution examined its witnesses and the statement of accused u/s 313 of the Code of Criminal Procedure was also recorded. According to him, No. offensive material was recovered from him and he pleaded his innocence. He also did not lead any evidence in defence. At the end of trial, the accused was convicted and sentenced as aforesaid. Hence the present appeal.

On the reappraisal of the evidence on record, I did not find that the link evidence in the instant case is complete and also that the report of the analysis Ext.PP/1 confirms to the statutory requirement and stands connected with the stuff recovered.

PW10 Inspector/SHO Gurdial Singh did not make even a fleeting reference in his statement about the deposit of the case property with MHC PW4 Madan Lal, he though stated by filing his affidavit Ext.PH that the case property was deposited by Gurdial Singh aforesaid on 24.9.2003 which consisted of six parcels containing seal impression "H". Since he was not cross-examined, therefore, I took his testimony as proof to his solemn affirmation. PW4 MHC Madan Lal, further stated that on 25.9.2003, two sample parcels were handed over to PW8 Constable Chaman Lal vide RC No. 80/2003 alongwith relevant documents for its deposit in CTL, Kandaghat and obtained receipt. The perusal of the report of the analysis No. where states that two samples were received in the Laboratory by the Chemical Examiner or any of the employee of the Laboratory. It only makes reference to one sample mark-A which was of 20.0087 grams and not 25 graMs. Copy of the road certificate referred above has not been placed and proved on record in order to connect the said sample with the alleged recovery. None of the witnesses stated that the sample, which was analyzed in the Laboratory pertains to the present accused, which was marked as mark-A. Further two sample parcels which were handed over to PW8 Constable Chaman Lal contained the seal impression of capital "H", whereas PW8 Constable Chaman Lal in his affidavit has mentioned about handing over two parcels sealed with seal impression "small" "h" and none of these witnesses stated about any particular mark on the sample parcel pertaining to this case. Even the abstract of the Malkhana register has not been placed and proved on record in order to find out whether any of the sample parcel was having mark-A. If two sample parcels were taken through same R.C., then it is not understood as to how only one parcel reached the Laboratory. In view of this, it cannot be said with authenticity that the sample parcel, which was analyzed in the Laboratory was the same as taken from the alleged recovered stuff from the accused on the spot, also for the reason that there is difference of weight as noted in the Laboratory it was 20.0087 grams against 25 grams which was taken on the spot. Therefore, in my opinion, link evidence is missing in the present case and the report of analysis could not be connected with the recovered stuff.

Further, the perusal of report of the analysis Ext.PP/1 reveals that the Chemical Examiner conducted only the following two tests:

a) Qualitative test (Microscopic examination; and

b) Quantitative test: Beam''s alkaline test.

On the Microscopic examination, Cystolithic hair were found present and Beam''s alkaline test was found positive. On the aforesaid tests, the Chemical Examiner opined that the exhibit contained the contents of Charas.

7."Charas" is one of the three forms of Cannabis (hemp) as defined in Section 2(iii) of the Act, which reads as follows:

(a) "Charas", that 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.

According to the definition of Charas as quoted above, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant.

The report aforesaid does not say anything about the source of resin whether it was of a cannabis plant or of some other plant in order to fall within the definition of Charas as above. In Sunil Kumar v. State Latest HLJ 2010 (HP) 207 by the Division Bench of this Court of which I was also one of the member was confronted with the same situation and we had also examined the same expert of the same Laboratory in the Court and held that such type of reports are not in conformity with the definition of the Charas given under the Act.

Since in the instant case, link evidence is not complete and the report of the analysis Ext.PP/1 could not be connected with recovered stuff and also the report of analysis is not in conformity with the definition of Charas, as given under the Act/Statute, therefore, in my considered opinion, on account of above cumulative circumstances, the judgment of conviction and sentence passed by the learned trial Court against the accused is not sustainable and accordingly set-aside. The appeal stands allowed, consequently, the accused is acquitted of the charges against him by giving him the benefit of doubt.

The accused is already on bail. The bail bonds executed by him at any time during the proceedings of this case are discharged. The fine amount deposited by him shall be refunded to him. Matter stands dispose of. Send down the records.