Himachal Pradesh High Court
Ankush Chauhan vs State Of H.P on 25 April, 2017
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. MP(M) No. 432 of 2017.
Decided on: 25th April, 2017 .
Ankush Chauhan .......Petitioner.
Versus State of H.P. .......Respondent. Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1No.
For the petitioner : Mr. Rajesh Verma, Advocate. For the Respondent : r Mr. Pramod Thakur, Addl. A.G. ASI Rajvinder Singh, I.O. Police Station, New Shimla, H.P. Dharam Chand Chaudhary, J. (oral).
Petitioner is an accused in FIR No.35/17 registered against him under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, in Police Station, New Shimla.
2. As per the allegations against him, he was one of the occupants of Santro Car bearing registration No.HP63-1711 nabbed by the Police near 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 2Dyerton Estate, Chopal Sadan at National Highway No.22, Shimla around 9.30 p.m. on 28.02.2017. On search of the car conducted in the presence of .
independent witnesses, 58 bottles, 100 ml. each, of 'Corex' a cough syrup, which contains narcotic drug codeine phosphate, were recovered. The accused petitioner and his co-accused Pranjay Kalthaik were intercepted on the spot itself whereas three occupants of the car managed their escape good by fleeing away from the spot; however, they have also been now arrested in this case by the police and presently are confined in judicial custody.
3. The supplementary affidavit filed consequent upon the order passed in this petition on 17.4.2017 reveals that the accused-petitioner is a student of 10+2 class and is due to appear for his final examination in the month of June 2017 through National Institute of Open Schooling. The Police has conducted the investigation, which is now complete.
::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 3The report from Forensic Science Laboratory stands received. The final report, however, is under preparation and likely to be presented in the Court .
shortly.
4. It is seen from the report of chemical examiner that the quantity of codeine phosphate, a narcotic drug, in 58 bottles of 100 ml. each allegedly recovered from the possession of the accused-
petitioner comes to 11.66 grams.
5. True it is that in State of Himachal Pradesh versus Mehboob Khan 2013(3) Him.L.R. (FB) 1834, a larger Bench of this Court, in a case of recovered charas, has held as under:
e) .......... 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 charas within the meaning of the Convention and the Legislature in its ::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 4 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 plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff 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) ........ When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert ::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 5 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 r of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for 'charas' under the Act."
6. However, this aspect of the matter is left open to be considered during the course of trial, however, in the present case, in terms of the notification issued by the Central Government in exercise of the powers vested in it under clause (VII-A) and (XXIII-A) of Section 2 of the Act, in the case of ::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 6 drug namely codeine small quantity is ten grams, whereas commercial quantity is one kilogram and above. The quantity recovered from the accused-
.
petitioner being 11.66 grams is little greater than small quantity, however, lesser than commercial quantity.
Therefore, the rigors of Section 37 of the Act are not attracted in the case in hand. Of course, the offence, the accused-petitioner allegedly committed is not only against the individual, but against the society as a whole, however, he is yet to be tried and if found to have committed the alleged offence to be dealt with in accordance with law. He is a student studying in 10+2 class. Since it is the school children, who are soft target of drug peddler, therefore, possibility of he along with his co-accused having purchased the bottles of corex from some drug peddler for their own consumption cannot be ruled out. The police should have inquired into this aspect of the matter; however, no investigation seems to have been conducted in ::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 7 this regard. Anyhow, the accused-petitioner, who is permanent resident of District Shimla, in the given facts and circumstances and for the reasons .
recorded hereinabove, deserves to be admitted on bail.
7. This petition, therefore, is allowed and it is ordered that the accused-petitioner, who has been arrested by the police of Police Station, New Shimla, in connection with FIR No.35/17 dated 28.02.2017 shall be released on bail, subject to his furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate/Judicial Magistrate, Shimla. He shall further abide by the following conditions:-
That he shall;
(a) join the interrogation as and when called upon to do so and regularly attend the trial Court on each and every date of hearing. If prevented by any reason to do so, shall seek exemption from appearance by filing appropriate application;::: Downloaded on - 27/04/2017 23:59:30 :::HCHP 8
(b) not tamper with the prosecution evidence nor hamper the investigation of the case, in any manner whatsoever;
.
(c) not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Investigating Officer;
(d) not leave the territory of India without the prior permission of the Court.
8. r It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him; the Investigating Agency shall be free to move this Court for cancellation of the bail.
9. The observations hereinabove shall remain confined to the disposal of this petition and have no bearing on the merits of the case. The application stands disposed of.
Copy Dasti.
(Dharam Chand Chaudhary)
April 25, 2017(ps) Judge.
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