Surinder Singh, J, (Oral) - High Court of Himachal Pradesh

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. A. No. 344 of 2011
Date of decision: 05 .1. 2012
Lekh Raj son of Sh. Gorkhu Ram R/o village
Shivshankargarh, Tehsil and PS Kandaghat, District Solan,
H.P.
…..Appellant
Versus
State of H.P.
……Respondent
Criminal Appeal under Section 36B of NDPS
Act read with Section 374 (2) of the Code of
Criminal Procedure.
__________________________________________________
Coram:
The Hon’ble Mr. Justice Surinder Singh, J.
Whether approved for reporting ? 1 yes
For the Appellant:
For the respondent :
Mr. P.P. Chauhan, Advocate with
Mr. D.R. Verma, Advocate.
Mr. A.K. Bansal, Addl. AG with Mr.
P.M. Negi, Deputy Advocate General.
Surinder Singh, J, (Oral)
The appellant was convicted by the
learned trial Court for the offence punishable under
Section 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 in short ‘the Act’ for allegedly
keeping in possession 22.30% charas in the
recovered stuff of 1.6 kilograms and sentenced to
undergo imprisonment for a period of four years and
to pay a fine of `25,000/- with the default clause.
1 Whether the reporters of Local Papers may be allowed to see the judgment ?

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The learned trial Court also gave him the benefit
under Section 428 of the Code of Criminal Procedure
for the period he remained in custody during the
investigation and trial of the case. Hence the present
appeal by the appellant hereinafter referred to as
“the accused”.
2. In nutshell, prosecution story is that on
23.12.2007 PW6 Inspector Om Parkash accompanied
by PW1 S.I. Rajinder Kumar, PW2 HHC Kashmi Ram
PW3 HC Pune Ram and Satish Kumar were present
at ‘Jangli pul’ in connection with patrolling duty. At
about 12.30 p.m. accused came from the side of
‘Kandugad’ holding a plastic bag in his right hand.
On seeing the police party, he is alleged to have got
scared and tried to escape. Police entertained
suspicion thus he was overpowered.
(ii)
It was a secluded and an isolated place,
no independent witness was available, as such
Inspector Om Parkash aforesaid joined PW1 Rajinder
Kumar and PW3 HC Pune Ram as witnesses and
informed the accused to exercise option under
Section 50 of the Act as he was suspecting some
contraband in his possession.
(iii)
The accused is stated to have opted to
be searched by the police party present there.

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Thereafter PW6 Inspector Om Parkash rendered
himself to be searched by the accused but no
incriminating article was found as such memo to this
effect was prepared. Thereafter Inspector aforesaid
checked the polythene bag to which accused was
holding in his hand. It contained 1.6 kilograms of
contraband.
(iv)
Two samples from the recovered stuff
weighing 25 grams each were separated and
sealed with seal impression ‘H’. The remaining stuff
was put back in the same polythene envelop/
plastic bag and also sealed by making a parcel with
the same seal.
(v)
NCB forms in triplicate were filled in one of
which is Ext. PW6/A. Facsimile of the seal “H” was
taken on each of them and seal impression was also
taken on a piece of cloth Ext. PW1/C and the case
property was taken into possession vide memo Ext.
PW1/D.
(vi)
Ruka Ext. PW2/A was sent to the police
station for registration of the FIR.
(vii)
Site plan Ext. PW6/B of the place of
recovery was also prepared.
(viii)
Accused was arrested and grounds of
arrest were informed to him in writing Ext. PW1/E.

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(ix) On reaching the Police Station, he
deposited the case property with PW4 MHC Rajinder
Singh. He made its entry in the Malkhana Register.
3. Special report Ext. PW3/A was sent to the
Additional S.P. within the statutory period.
4. On 25.12.2007 a sample parcel was sent
for its examination to FSL Junja vide RC Ext. PW4/B
through PW5 constable Sunder Singh. On its deposit
on 26.12.2007 in the laboratory, he obtained receipt
and handed it over to MHC on his return.
5. The sample parcel was opined to be that
of charas.
6. It is also the case of the prosecution that
thereafter PW8 MHC Pushp Dev officiating MHC on
1.3.2010 sent the bulk and the second sample parcel
to FSL Junga through constable Puran Chand (PW9)
vide RC Ext. PW8/A for analysis. These were also
tested positive for charas.
7. After completing investigation, the
challan was presented in the court against the
accused for his trial. He was accordingly
chargesheeted to which he pleaded not guilty and
claimed trial.
8. To prove its case prosecution examined
as many as ten witnesses. The accused was also

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examined under Section 313 of the Code of Criminal
Procedure. Though in his statement he did not raise
any specific defence rather he pleaded innocence
but the trend of the cross examination shows that he
tried to put that the alleged contraband was
recovered from an Alto Car whereby three local
persons were traveling, ultimately the case was
foisted upon him to save them.
9. The leaned trial Court jettisoned the
defence taken but while relying upon the official
witnesses, convicted and sentenced the accused as
aforesaid.
10. Shri P.P. Chauhan, Advocate duly assisted
by Shri D.R. Verma, Advocate for the accused took
me through the evidence on record and
vehemently argued that; (i) the prosecution did not
include the independent witnesses from the nearby
village, (ii) there has been discrepancy with respect
to the time of the alleged recovery; (iii) it is also
pointed out that there is also material contradictions
in the statements of official witnesses. Lastly, the case
property was alleged to have deposited in the
malkhana but the entry of the bulk did not find
mentioned in malkhana register (Ext. PW4/A)

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Therefore, in the above circumstances, accused
deserves to be acquitted.
11. Shri P.M. Negi, learned Deputy Advocate
General countered the above arguments on the
ground that the aforesaid discrepancies as
highlighted are of a very minor nature which are
bound to be there due to time gap but these are
not sufficient to reject the prosecution case at all.
He further submitted that there may be a case of
negligence on the part of the MHC who was
examined to prove the entry of the case property in
the malkhana but it appears that half cooked
document was produced during the trial and the
learned Prosecutor appears to be not vigilant.
12. I have given my thoughtful consideration
to the rival contentions of the parties and have
carefully and cautiously gone through the evidence
on record.
13. The recovery in the instant case is from an
open and secluded place. There is no requirement
of law to include independent witnesses. The facts
are to be appreciated in the light of the statements
of official witnesses if inspire confidence. Therefore,
the prosecution case cannot be rejected on this
ground. Further the contradiction with respect to the

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time of recovery is also not fatal. Though PW2 HHC
Kashmi Ram stated that the accused was
apprehended around 8.30 a.m. whereas other
witnesses stated that he was apprehended at 12.30
p.m. at ‘Janglipul’ is also ignorable owing to the
time gap between the recovery and the date of the
recording statements of the witnesses in the month
of June, 2011 after about four years. PW2 aforesaid
also clarified in his cross examination that the time of
the alleged recovery was 12.30 p.m.
14. Further in cross examination I.O Om
Parkash aforesaid stated that on seeing the
accused, they had taken the cover of the boulder
whereas other witnesses did not say so. The ruka as
well as police challan also does not refer to it. This
fact appeared only in the cross examination of the
witnesses which is also ignorable as not material.
Also the contradiction with respect to the colour of
the envelop occuring in the statement of PW1 SI
Rajinder Kumar, PW2 HHC Kashmi Ram and PW3 H.C.
Pune Ram get vanished because the case property
stood identified during the trial of the case and this
fact has not been challenged at all in the crossexamination.

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15. Now what is important in this case is that
PW4 MHC Rajinder Kumar stated about having
deposited the case property in the malkhana and
its entry having been made in the relevant register,
the extract of which is Ext. PW4/A. Surprisingly, there
is only the entry of two sample parcels out of which
one was sent for the examination to Forensic
Science Laboratory whereas at Sr. No. 1 there was
an entry of one sample parcel, was struck-off, but
the description of the bulk parcel does not find
mentioned therein. If it was half-cooked document
as submitted by the learned Deputy Advocate
General, produced by the MHC concerned, I failed
to understand why the learned Public Prosecutor
remained dormant and did not point out this fact at
that stage. Further, there is no proof of sending the
second parcel having been drawn from the
malkhana for sending it to the examination, as this
fact does not find mentioned in Ext. PW4/A. The
sample which was sent through Constable Sunder
Singh on 26.12.2007 was stated to have been
examined in the Laboratory. The date of
examination is 01/0/08 which makes no sense. Be
that as it may, the result of the examination is Ext. PA
it is reproduced verbatim as under:-

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Result of analysis.
“Various scientific tests such as physical,
identification, chemical and chromatographic
tests were carried out in the Laboratory with the
exhibit P/1 under reference. The tests
performed above indicated cannabinols
including the presence of
tetrahydrocannabinol in the sample. The
microscopic examination indicated the
presence of cystholithic hair in the sample.
Charas is a resinous mass and resin is an
ingredient of charas which on testing was
found present. Resin is found to be 22.30% W/W.
And the quantity of resin in cannabis
plant/Charas sample varies from one area to
the other area. The result thus obtained is given
below. In the opinion of the undersigned based
upon the tests performed above for the
samples is that:-
The entire mass of exhibit P/1 is a sample of charas.”
16. The similar report was under scrutiny
before the Division Bench of this Court in Sunil Kumar
versus State Latest HLJ 2010 (HP) 207 of which I was
also one of the Member. The Division Bench took
cognizance of a report one of which was similar to
the present one and on considering the definition of
charas under the Act it was held to be contrary to
the statutory definition.

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17. In fact, “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.”
18. According to the definition of “Charas”,
as given in Section 2(iii)(a) of the Act, 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.
19. Flowering and fruiting tops of cannabis
plant have been defined to mean ganja, per
Section 2(iii)(b) of the Act and when seeds and
leaves of the plant accompany such flowering or
fruiting tops, they also form part of ganja.
20. When Charas, i.e. resin and/or ganja, i.e.,
flowering or fruiting tops of the cannabis plant, are
mixed, with or without any neutral material, they fall

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in the category of Mixture of cannabis (hemp), as
defined in Section 2(iii)(c) of the Act.
21. Thus being in possession of cannabis
(hemp) is an offence, punishable under Section 20 of
the Act. Punishment also varies according to the
quantity possessed, as notified in the Schedule.
22. From the report referred to hereinabove, it
is clear that the stuff was opined to be charas on
account of the presence of cannabinols including
tetrahydrocannabinol and cystholithic hair.
23. The Chemical examiner did not bother to
take note of the definition about the charas given
in the Statute rather he tried to clarify in his
examination result that the quantity of resin in
cannabis plant/ charas varies from one area to
other area without specifying that the resin was of
the cannabis plant.
24. As per definition of charas reproduced
herein above, resin is not an ingredient of charas
but charas means the whole resin in whatever
form, whether crude or purified of cannabis plant.
In Sunil Kumar’s case (supra) the Court took note
of the statement of the expert recorded before the
learned trial Court as well as in the High Court
during the pendency of the appeal and examined

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the similar reports in the light of the definition given
in the Act and came to the conclusion that the
report does not conform to the statutory definition
of charas.
25. The report in hand also suffers from the
same vice. Thus, sample so analyzed by the
Laboratory does not conform to the definition of
charas.
26. In so far as the bulk and the second
sample is concerned there appears to be some
improvement in the examination result but it
cannot be taken into consideration for the reason
that it has not been explained in which case and
from where this bulk and the sample were brought
and taken to the Laboratory. It was neither shown
to have been deposited in the malkhana register
Ext. PW4/A nor drawn for its analysis. The weight of
the bulk and sample also differs considerably but
for the seal impressions. Therefore, the sample
report Ext. PW10A could also not be connected
with the recovery alleged to have been effected
from the accused.
27. For reasons aforesaid, in my considered
opinion, prosecution failed to prove the case
against the accused beyond a reasonable doubt.

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As such the conviction and sentence passed by
the learned trial Court is set aside. Accordingly the
appeal is allowed.
28. The accused is undergoing sentence, he
be released forthwith if not required in any other
case. Registry to issue release warrant to the
Superintendent Jail concerned in conformity with
this judgment.
29. Send down the record forthwith.
January 5, 2011
(cm)
(Surinder Singh),
Judge.