Himachal Pradesh High Court
Chattar Singh vs State Of Himachal Pradesh on 21 June, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.969 of 2019 .
Reserved on : 10-06-2019 Date of decision : 21st June,2019 Chattar Singh ... Petitioner.
Versus State of Himachal Pradesh ...Respondent Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. N.K.Thakur, Senior Counsel with Mr. Divya Raj Singh, Advocate.
For the Respondent : Ms. Ritta Goswami, Additional Advocate General, Ms. Divya Sood, Deputy Advocate General and Mr. Manoj Bagga, Assistant Advocate General.
Anoop Chitkara, Judge The present petition is under Section 439 of the Code of Criminal Procedure for grant of bail in case FIR No. 53/18, dated 12-05-2018, registered under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Tissa, District- Chamba, HP.1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 2
2. This Court had issued notice to respondent vide order dated 27-05-2019 and on 17-06-2019 the State had .
filed the status report.
3. I have heard learned counsel for the petitioner as well as respondent and have also gone through the status report.
Facts
4. The gist of the case of the prosecution is as under:
a) On 11-05-2018, S.I. Madan Lal alongwith S.I. Manoj Kumar, HC Rupinder Singh, HC Deepak Kumar, HHC Raj Kumar and C. Rocky were on patrolling duty in the personal vehicle. They were also carrying investigating kit and patrolling was with a view to detect and get some information about intoxication substances.
b) That around 7:30 p.m. when the police party was returning and had stopped their vehicle at place Pritmas Narwad link road and were talking to each other at that time one person was walking on road from Narvad to Pritmas. He was carrying a white colour plastic bag in his right hand. The police got suspicious due to his demeanor suspecting that he was possessing some ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 3 contraband or narcotic substance, he was asked to stop, on this, he became nervous.
c) Sub Inspector Madan Lal revealed .
him his identity and asked him what was he carrying in plastic bag. On this the said person could not give any satisfactory reply.
On inquiry, he told his name as Rajesh Kumar, resident of Chamba and aged 21 years.
d) The spot was isolated and unhabitated. Despite this I.O. directed HHC Raj Kumar to bring some independent witnesses to the spot. After 15-20 minutes HHC Raj Kumar return to the spot and told that no independent person could be found.
e) Subsequently, the police party itself conducted the search of said Rajesh Kumar. Police detected the charas in the bag. The weight of the charas was found to be 3kg 961 grams.
f) As per the status report, after completion of the procedural requirements, Rajesh Kumar was arrested.
g) Later on when the alleged charas was sent for testing to Forensic Science Laboratory, Junga, substance was tested as cannabis. The quantity of purified ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 4 resin in the charas was found 32.95% in the charas.
5. During custodial investigation of Rajesh Kumar, he .
confessed before the police that he has obtained this charas from Chattar Singh, the present petitioner. Thereafter, the Investigating Officer conducted investigation to gather evidence about the involvement of Chattar Singh, the present bail petitioner. As per the status report the Investigating Officer has found following evidence regarding involvement of Chattar Singh:
a) the confession of Rajesh Kumar to the police wherein he told the police that he had obtained this charas from petitioner.
b) It was further stated by Rajesh Kumar that Chattar Singh told him that one person would contact him near Pritmas and he would recognize him and to handover this bag to such person.
c) It was further confessed that said person would give him Rs. 1,60,000/-.
d) Chattar Singh further told him that in lieu of this job he would give him money.
6. The police also took in possession the call details of mobile of Rajesh Kumar as well as mobile of Chattar Singh.
::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 5It also came in evidence that mobile Sim number issued to Rajesh Kumar is 78076-50054 and sim number issued to .
Chattar Singh is 98165-68830.
7. As per the investigating Officer, on 11-05-2018 at around 5:49 p.m. they had talked to each other for 149 seconds.
Thereafter, there was a telephonic conversation on four occasions between them. Further on 11-05-2018 at 6:14 p.m. they again spoke for one minute. Therefore, according to the Investigating Officer they were in contact with each other just prior to time Rajesh Kumar was apprehended by the police.
Contentions
8. The contentions of the learned counsel for the petitioner are two fold. Firstly, he says that the confession of co-
accused before police cannot read in evidence against the present bail petitioner. To substantiate this contention he has placed reliance on judgment of Supreme Court AIR 2018 SC 3574 titled Surinder Kumar Khanna Vs. Intelligence Office Directorate and judgments of this court: 2016(4) Him LR 2134 titled as Kans Raj Vs. State of HP, 2018 (2) Him LR 897 titled as Yashpal Vs. Narcotics Control Bureau and 2018 (1) HIM L.R. 252 ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 6 Pawan Dixit Vs. State of HP. The Second contention of Sh.
N.K.Thakur, Senior Advocate for the petitioner is that resin .
contained in contraband is to be considered. He has also mentioned in paragraph 8 & 9 of bail petition, specifically that resin content in contraband, as per RFSL, is 32.95%.
9. I have also heard Ms. Reeta Goswamin, Additional Advocate General who has stated that the evidence against the accused, is just only the statement of confession, and even if the confession before police is ignored, there is other evidence, which is conclusive in nature. There is evidence of call details between the petitioner and the main accused. Her second contention is that regarding the resin, the matter is already referred to larger Bench in Cr.MP. (M) No. 613/2019, Cr.MP(M) No. 1818/2018, Cr.MP(M) No. 1819/2018 and Cr.MP(M) No. 1771/2018.
Reasoning:
10. In the status report, the reference has been made to report of Regional Forensic Science Laboratory, Junga.
Expert after conducting Scientific Chemical Test, gave his opinion as follows: "The Quantity of purified of resin as ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 7 found in the exhibit stated as Charas is 32.95% w/w. The exhibit is extract of cannabis and sample of charas". Thus .
the net weight of purified resin comes to 1300 grams ( approximately).
11. In State of H.P. v. Mehboon Khan (FB), 2014 (2) RCR (Criminal) 447, holds as follows, "Para 55.
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 resin contents in the samples analyzed, the possibility of the stuf recovered from the accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an ofence, cannot be ruled out', is not a good law nor any such interpretation is legally possible. The percentage of resin contents in the stuf analyzed is not a determinative factor of small quantity, above smaller quantity and less than commercial quantity and the commercial quantity. Rather, if in the entire stuf recovered from the accused, resin of cannabis is found present on analysis, whole of ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 8 the stuf is to be taken to determine the quantity i.e. smaller, above smaller but less 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 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 plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuf 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 ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 9 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 stuf analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuf of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuf 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 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 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 ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 10 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."
12. In view of this pronouncement of full bench, the controversy is no more res-integra. The definition of charas as per mandate of Section 2 (iii) of the NDPS Act is :-
" 2 (iii) "cannabis (hemp)" means:-
(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;
(b) Ganja, that is, the flowering or fruiting tops of the cannabis plant ( excluding the seeds and leaves when not accompanied by the tops),
(c) any mixture , with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom;::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 11
(iv) "cannabis plant" means any plant of the genus cannabis;"
13. It is clear that as per Section 2(iii) (a) of the .
NDPS charas is the resin in whatever form whether crude or purified, provided such resin has been obtained from the canabis plant. It is common knowledge that charas is made when resin is separated from flowering tops/ leaves of cannabis plant. That is why, Legislature, used the word "separated resin". Now when resin is separated from the flowering tops as well as leaves of the cannabis plant, it would be crude or purified, depending upon the procedure adopted for such process. If the process for separating resin is scientific and done in good chemical laboratory or done by experts using modern instruments, then the resin so separated would be very purified. To the contrary when the resin is separated from the leaves and flowers of cannabis plants by using old age traditions or manual process, like rubbing of body or hands or by splashing on wooden logs or through leather, then such resin would be in crude form. The legislature did not diferentiate between the charas whether crude or purified. Therefore, the percentage of resin in ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 12 cannabis alone is not charas and prima facie the entire cannabis irrespective of percentage of resin is charas.
.
14. Be that as it may, the matter is subject matter of adjudication before the larger bench and it is for the larger bench to adjudicate upon this issue.
15. The prosecution did not say that the statement of accused is under Section 67 of the Narcotic Drugs and Psychotropic Substances Act "67. Power to call for information, etc. Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act-
(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any Rule or order made thereunder;
(b) require any person to produce or deliver any documents or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case."
16. Therefore, this statement is prima facie hit by Sections 25 and 26 of Indian Evidence Act. At this stage of ::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 13 bail no finding is required on this score. However, the statement of co-accused should not be considered as .
evidence to curtail the liberty.
17. Another evidence is of proximity. The evidence of call details, collected by the Investigating Officer prima facie points to the facts that accused Rajesh Kumar and present petitioner Chattar Singh were in contact each other on phone just prior to 7:30 p.m., when Rajesh Kumar was apprehended by the police. The initial evidence is they had contacted with each other on phone on four occasions. This piece of evidence, for the purpose of bail is material evidence. The quantity of contraband is commercial. The rigors of the Section 37 of Narcotic drugs and Psychotropic Substances Act, would restrict the entitlement of bail.
18. As on date, the petitioner has no case for bail because bulk quantity involved is greater than 1 kg and resin alone cannot be taken to determine the quantity.
19. Therefore, it shall be open for the petitioner to file a bail petition, on the ground of percentage of resin, if the findings in the above referred matter are given in his favour by larger bench.
::: Downloaded on - 28/09/2019 23:47:18 :::HCHP 1420. In view of the entire discussions, the petitioner is not entitled to bail, at this stage. Resultantly, the bail petition .
is dismissed.
(Anoop Chitkara), Judge.
21st June, 2019(NK)
r to
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