Himachal Pradesh High Court
State Of Himachal Pradesh vs Harvinder Singh & Others on 22 December, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 69 of 2013
.
Date of decision: 22nd December, 2016.
State of Himachal Pradesh ......Appellant.
Versus
Harvinder Singh & Others ......Respondents.
of
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
rt
For the appellant : Mr. D.S. Nainta, & Mr. Virender
Verma, Addl. AGs.
For the respondents : Mr. Rajesh Verma, Advocate.
Dharam Chand Chaudhary, J. (Oral)
State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Special Judge, Fast Track Court, Chamba has erroneously acquitted all the three accused persons (respondents herein) of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as 'the NDPS Act' in short, vide judgment dated 26.9.2012, passed in Sessions trial No. 40/12.
2. The legality and validity of the impugned judgment has been questioned before this Court on several grounds, however, 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 2mainly that the trial Court has miserably failed to appreciate the evidence available on record and erroneously acquitted the .
accused. The testimony of the official witnesses absolutely consistent and without any discrepancy is stated to be erroneously discarded. The trial Court is stated to have not taken into consideration the prosecution evidence in its entirety and rather of discussed only Ext. P-X, the report submitted by the Forensic Science Laboratory. The defence neither objected to nor suggested to the rt prosecution witnesses that the contraband recovered from the accused persons was not charas during their cross examination.
The ratio of the judgment of this Court in Sunil V. State of Himachal Pradesh, 2010 (1) Shim. L.C. 192., could have not been made the basis to arrive at a conclusion that the report Ext. P-X is not suggestive of that the contraband recovered from the accused was charas, as according to the appellant-State the question as to whether the judgment in Sunil's case lays down correct law or not was sub-judice before the Larger Bench of this Court. Therefore, the impugned judgment has been sought to be quashed and the accused persons convicted for the commission of offence punishable under Section 20 of the NDPS Act.
3. The facts, in a nut shell, are that all the accused while travelling in Maruti Car No.PB02-E-5656, intercepted on 13.3.2012 around 2.30 a.m. (midnight) at Gununalla under Police Station, Tissa, ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 3 District Chamba were found in exclusive and conscious possession of Charas weighing 1.800 kgs. whereas poppy straw weighing 20 .
grams. They were intercepted, searched and Charas as well as Poppy Straw recovered from them by HC Deva Nand, incharge police post Nakrod, in the presence of HC Shaukat Ali, PW-1, Constable Som Prakash, PW-2, and constable Ravinder Kumar PW-
of 3, who were present at Gununalla during picketing. Accused Harvinder Singh was on the wheel of the car whereas his co-
rt accused Chandan was occupying front seat. Their co-accused Jasbir Kaur was sitting on the rear seat. On inquiry, they disclosed their antecedents to the I.O. HC Deva Nand, PW-10. Reasons for their travelling during odd hours of the night were sought; however, they failed to give satisfactory reply thereto. One Basmati Rice packet was found on the rear seat of the vehicle. The I.O., when questioned as to what the said packet contains, the accused avoided to answer such query. PW-10 thereafter offered his own personal search to the accused first vide memo Ex.PW-1/A. However, nothing incriminating could be recovered from him.
Being dead hours of night, it was not possible to associate independent witnesses, therefore, PW-1 HC Shaukat Ali and PW-2 Constable Som Prakash were associated as witnesses and all the three accused were apprised about their right of being search either before a nearby gazetted officer or Magistrate vide memo ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 4 Ex.PW-1/B. They, however, opted for their search by the police party present there.
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4. On opening the rice bag having marka 'Zia Authentic Basmati Rice Premium' a white coloured bag was recovered therefrom. On opening of said bag charas weighing 1.800 kgs., was recovered therefrom. Sampling and sealing process was resorted of to and the recovered charas was sealed in a white coloured cloth parcel and put in that very rice bag, which was sealed with seal rt having impression, 'H'. One paper packet was also recovered from the dashboard of the car in which Poppy Straw (Chura Post) weighing 20 grams was recovered. The same was also sealed with the same seal in a parcel. The sample of seal was separately drawn on a piece of cloth. The I.O. allegedly filled in NCB Forms in triplicate and the recovered charas as well as poppy straw were taken into possession vide recovery memo Ex.PW-1/D. The vehicle was also taken into possession. It is thereafter the Rukka Ex.PW-1/E was prepared, on the basis whereof FIR Ex.PW-4/A registered. The I.O. also completed other codal formalities and arrested all the three accused. The case property was brought to police station where it was resealed and retained in safe custody in the Malakhana. The same was sent to Forensic Science Laboratory for analysis.
::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 55. On receipt of the report from the Forensic Science Laboratory as well as completion of the investigation of the case, .
report under Section 173 Cr.P.C. was filed in the trial Court. All the accused were charge-sheeted for the commission of offence punishable under Section 20 and 15 of the NDPS Act.
6. The prosecution, in order to prove its case, has of examined as many as 10 witnesses in all. Besides HC Shaukat Ali, PW-1 and Constable Som Prakash PW-2 as well as the I.O. PW-10 rt referred to hereinabove, PW-3, the then I.O. P.S. Chamba was examined to prove the prosecution case that lady accused Jasbir Kaur was interrogated in his presence by lady constable Gayatri, who was taken by him to the spot. PW-4 was officiating Moharer in Police Station, Tissa at the relevant time, who has registered the FIR Ex.PW-4/A and PW-10 produced the accused along with case property before the then SHO Police Station, Tissa. He has also supported the prosecution case qua resealing of the case property and forwarding the same to the Forensic Science Laboratory for analysis. PW-5 HC Avinder Singh was officiating as MHC, who had forwarded the case property to Forensic Science Laboratory, Junga for chemical analysis whereas, Constable Rajesh Kumar PW-6, and HC Subhash Chand, PW-7, reader to Superintendent of Police, Chamba has proved the Special Report Ex.PW-7/B. PW-8, Constable Suresh Kumar, the then MHC, Police Post Nakrod has ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 6 proved Rapat No.12 Ex.PW-8/A the entry with regard to picketing at Gununalla. PW-9 remained posted as SHO P.S. Tissa, who was .
associated to prove the prosecution case qua production of the accused along with case property before him and resealing of the case property.
7. The accused were also examined under Section 313 of of the Code of Criminal Procedure. While admitting that they were intercepted by the police party in the vehicle in question and after rt conducting their personal search were arrested by the police have denied rest of the incriminating circumstances appearing against them in prosecution evidence either being wrong or for want of knowledge. In their defence, it was pleaded that one SPO had attempted to outrage the modesty of lady accused Jasbir Kaur and when she as well as her co-accused objected to such act they were implicated falsely in this case.
8. The Court below vide judgment under challenge in this appeal though convicted all the three accused for the commission of the offence under Section 15 of the NDPS Act and sentenced them to undergo two months rigorous imprisonment each with fine of `3000/-, however, they all were acquitted of the charge under Section 20 of the NDPS Act as pointed out at the outset.
9. The trial Court while placing reliance on the judgment of a Division Bench of this Court in Sunil Vs. State of Himachal ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 7 Pradesh, 2010 (1) Shim. L.C. 192, has held that the report Ex.PX of the chemical examiner being similar as in Sunil's case supra does .
not establish that the recovered contraband 1.800 kgs is charas alone and none-else. The operative part of the impugned judgment reads as followed:-
" .......A similar result of the examination was considered by of the Hon'ble High Court in Sunil vs. State 2010 (1) Shim. LC
192. The said result of analysis has been reproduced in para
10 of the judgment which is in the same words as the result rt of analysis in the present case. The Hon'ble High Court found that the stuff was opined to be Charas on account of presence of cannabinols including tetrahydrocannabinol and cystolithic hair. The Hon'ble High court then proceed to determine whether the analyst could have been in a position to conclude that sample was Charas after conducting test to notice the presence of the cannabinols including tetrahydrocannabinol and characteristic cystolithic hair. The Hon'ble High Court, thereafter, referred to the various definitions given in various literatures and found that tetrahydrocannabinol was found not only in charas, but also in Ganja, leaves, seeds and in stumps of cannabis and presence of resin in the various parts of the plant would not make it Charas as defined in Section 2(iii)(a) of NDPS Act. Ultimately, it was observed as under:-
"(T)he only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair.
They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples.
::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 8Specific category of a cannabis product, like Charas, Ganja, or mixture, as defined in Section 2(iii) of the Act, .
or anything else, like bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis.
30. According to Parikh's Textbook of Medical of Jurisprudence, Forensic Medicine and Toxicology, in the case of Bhang it is 15 per cent, in the case of Ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 per cent. When the percentage of rt tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards Cystolithic hair, these being the fiber of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of Bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, Ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, under Section 20 of the act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of Ganja, unless accompany the flowering and fruiting tops of the plant.
31. In view of the above stated position, we hold that Experts' reports in none of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility of the stuff recovered from them ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 9 being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be .
ruled out."
The position was reiterated in Bajinder Singh vs. State of H.P. Latest HLJ 2010 (2) 1263 (HP), Om Prakash S/s State of Himachal Pradesh Latest HLJ 2012 (HP 474 and also in Lekh Raj V/s State of Himachal Pradesh Latest HLJ 2012 (HP) 41.
18. Thus, it is not proved that the accused were found in of possession of 'Charas' on the basis of report Ex.PX as laid down by our Hon'ble High Court. The report in hand also suffers from the same vice. As discussed in above referred rt case(s) law by our Hon'ble High Court the sample analyzed by the Laboratory does not conform to the definition of 'Charas'.
19. Hence, it is not proved that accused were found in exclusive and conscious possession of 1 kg 800 grams 'Charas' (cannabis) on the basis of report Ex.PX as per law laid down by Hon'ble High Court supra."
10. On merits, the contentions that there is non-
compliance of Section 50 and 42 of the NDPS Act have, however, not been acceded to while holding that the present being a case of chance recovery, Section 42 of the NDPS Act was not applicable. Similarly, in view of the contraband allegedly charas recovered from the rice bag and not from the person of the accused; Section 50 of the Act was also not applicable. The accused as such has been acquitted of the charge under Section ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 10 20 of the NDPS Act only by placing reliance on the judgment in Sunil's case supra.
.
11. It is worth mentioning that a Larger Bench of this Court in State of Himachal Pradesh versus Mehboob Khan 2013(3) Him.L.R. (FB) 1834 has reconsidered the law laid down by the Division Bench in Sunil's case (supra) and concluded as under:-
of a. After taking into consideration Section 293 of the Code of Criminal rt Procedure, Sections 45 and 46 of the Indian Evidence Act and the Law laid down by the apex Court as well as various High Courts discussed in detail hereinabove, we conclude that on account of non-consideration of the same by the Division Bench, which has rendered the judgment in Sunil's case, correct law on the expert opinion and the reports assigned by the scientific expert after analyzing the exhibit has not been laid down.
b. We further conclude that on account of non-consideration of various reports of the United Nations Office on Drugs and Crime including Single Convention on Narcotic Drugs, 1961 and to the contrary placing reliance on the text books, which basically are on medical jurisprudence, the Division Bench in Sunil's ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 11 case failed to assign correct meaning to 'charas' and 'cannabis resin', the .
necessary constituents of an offence punishable under Section 20 of the NDPS Act.
c. In view of the detailed discussion hereinabove, the Division Bench while of deciding Sunil's case supra has definitely erred in taking note of the percentage of tetrahydrocannabinol in three forms of rt cannabis i.e. Bhang, Ganja and Charas and hence, concluded erroneously that without there being no reference of the resin contents in the reports assigned by the Chemical Examiners in those cases, the contraband recovered is not proved to be Charas, as in our opinion, the Charas is a resinous mass and the presence of resin in the stuff analyzed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas.
d. There is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sunil's case that 'for want of percentage of tetrahydrocannabinol or ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 12 resin contents in the samples analyzed, the possibility of the stuff recovered from the .
accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an offence, cannot be ruled out', is not a good law nor any such interpretation is legally possible. The of percentage of resin contents in the stuff analyzed is not a determinative factor of small quantity, above smaller quantity and rt lesser than commercial quantity and the commercial quantity. Rather if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but lesser than commercial and commercial, in terms of the notification below Section 2 (vii-a) and (xxiii-a) of the Act.
e. We have discussed the Single Convention on Narcotic Drugs, 1961 in detail hereinabove and noted that resin becomes cannabis resin only when it is separated from the plant. The separated resin is cannabis resin not only when it is in 'purified' form, but also when in 'crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in 'crude' form is also ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 13 charas within the meaning of the Convention and the Legislature in its .
wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis of plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff rt and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.
f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that "mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 14 charas and mere presence of tetrahydrocannabinol along with .
cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is rt more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants.
The resin rather must have been obtained from the cannabis plants may be in 'crude' form or 'purified' form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for 'charas' under the Act."::: Downloaded on - 15/04/2017 21:47:52 :::HCHP 15
12. The Larger Bench, therefore, has held that the judgment in Sunil's case (supra) does not lay down the correct legal .
position as to what is Charas and what shall be its constituents in legal parlance and as such not to be followed. Therefore, in view of the Larger Bench judgment in Mehboob Khan's case (supra), the impugned judgment can not be said to be legally and factually of sustainable and the same as such is quashed and set aside.
Consequently, the case is remanded to the trial Court for fresh rt disposal in accordance with law. The parties through learned counsel representing them are directed to appear before the trial Court on 6th March, 2017. Record be sent back so as to reach in the trial Court well before the date fixed.
13. The appeal is accordingly allowed and stands disposed of.
(Dharam Chand Chaudhary), Judge.
December 22, 2016. (Chander Bhusan Barowalia), (ps) Judge.
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