Himachal Pradesh High Court
Dabe Ram 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. 725 of 2019 Order reserved on : 19.6.2019 Date of Decision : June 21 , 2019 Dabe Ram ...Petitioner.
Versus State of Himachal Pradesh r ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 For the petitioner : Mr. Mandeep Chandel, Advocate, for the petitioner.
For the respondent : Ms. Ritta Goswami, Additional Advocate General and Ms. Divya Sood, Deputy Advocate General for the respondent/State.
Anoop Chitkara, Judge.
The present petition is under Section 439 of the Code of Criminal Procedure for grant of bail in case FIR No. 46 of 2019, dated 16.3.2019, registered at Police Station 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 2Bhunter, District Kullu, H.P., under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985.
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2. This Court had issued notice to respondent vide order dated 29.4.2019 returnable for 13.5.2019, on which date the matter was adjourned by four weeks.
3. I have heard learned counsel for the parties.
4. The petitioner has taken a specific stand in para
- 3 of the bail petition. He has stated therein that the purified resin of the alleged contraband is a non commercial quantity. He further stated that in a similar matter the Hon'ble High Court of Himachal Pradesh has granted bail in Cr.MP(M) No. 1771 of 2018, titled as Sonu Ram vs. State of Himachal Pradesh, decided on 31.12.2018 (Annexure P-1).
5. I have gone through the order passed in Cr.MP(M) No. 1771 of 2018 (Annexure P-1). In this order the Co-ordinate Bench of this Court has granted bail by observing that the findings are in tandem with the verdict recorded upon in Cr.MP(M) No. 1505 of 2018.
6. In State of H.P. v. Mehboon Khan (FB), 2014 (2) RCR (Criminal) 447, holds as follows, "Para 55. ... ...
::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 3d. 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 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 percentage of resin contents in the stuff 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 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 less than commercial and commercial, in terms of the notification below Section 2 (vii a) and (xxiii a) of the Act.
::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 4e. 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 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 ::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 5 of tetrahydrocannabinol or resin contents in the sample.
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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 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 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 ::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 6 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."
7. 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) 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), ::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 7
(c) any mixture , with or without any natural material, of any of the above forms of .
cannabis or any drink prepared therefrom;
(iv) "cannabis plant" means any plant of the genus cannabis;"
8. It is clear that as per Section 2(iii) (a) 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 ::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 8 not differentiate between the charas whether crude or purified. Therefore, the percentage of resin in cannabis .
alone is not charas and prima facie the entire cannabis irrespective of percentage of resin is charas.
9. Ms. Ritta Goswami, learned Addl. Advocate General has brought to the notice of this Court that one bail application No. Cr.MP(M) No. 613 of 2019, pertaining to similar issue, is pending adjudication by a larger bench of this Court.
10. 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.
11. Therefore, it shall be open for the petitioner to file a bail petition, on the grounds of percentage of resin, if the findings in the above referred matter are given in his favour by larger bench.
12. As on date the petitioner has no case for bail because bulk quantity involved is more than 1 kg and resin alone cannot be taken to determine the quantity.
Resultantly, the bail petition is dismissed.
::: Downloaded on - 28/09/2019 23:44:08 :::HCHP 913. It is made clear that the observations made in this order are only for the purpose of deciding this bail .
petition. Learned trial Court shall not at all be influenced with any observations made in this order.
14. It shall be open for the bail petitioner to file a bail petition before the learned trial Court after the framing of charges. It is further clarified that the learned trial Court shall decide such application uninfluenced of the present application. In case the petitioner does not get bail from any Court then in such an event it is requested to the learned trial Court to expedite the trial, in the peculiar facts and circumstances of the case.
In view of the aforesaid discussions, present petition stands dismissed.
(Anoop Chitkara), Judge.
June 21 , 2019 (PK) ::: Downloaded on - 28/09/2019 23:44:08 :::HCHP