Himachal Pradesh High Court
Avtar @ Tari vs State Of Himachal Pradesh on 19 June, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No.1066 of 2019 Reserved on : 17-06-2019 Date of decision : 19th June,2019 Avtar @ Tari ... 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. Sanjeev Kumar Suri, 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. 9/16, dated 31-01-2016, registered under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985, at Police Station Aut, District- Mandi, HP.1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 28/09/2019 23:37:41 :::HCHP
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2. This Court had issued notice to respondent vide .
order dated 12-06-2019 and on 17-06-2019 police had filed status report.
3. I have heard learned counsel for the petitioner as well as respondent and have also gone through the status report.
4. The case of the prosecution is that 1kg 585 gms Charas was recovered from the possession of the bail petitioner, which as per police is a commercial quantity under Section 20 (ii) (C) of Narcotic Drugs and Psychotropic Substances Act.
5. To the contrary, learned Counsel appearing for the petitioner, in paragraph no.2 of his petition, has submitted that although the total weight of the contraband allegedly recovered is 1.585 k.g., however, the percentage of resin would bring it below the commercial quantity. Resultantly, rigors of Section 37 of Narcotic Drugs and Psychotropic substances Act will not attract. The submission of the counsel for the bail petitioner is that percentage of resin is to be considered and not the entire bulk of 1.585 kg. He further ::: Downloaded on - 28/09/2019 23:37:41 :::HCHP ...3...
submitted that if resin is considered, then it would fall below 1 .
kg, which is less than commercial quantity.
6. 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 found in the exhibit stated as Charas is 27.74% w/w. The exhibit is extract of cannabis and sample of charas" Thus the net weight of purified resin comes to 440 grams (approximately).
7. 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 ::: Downloaded on - 28/09/2019 23:37:41 :::HCHP ...4...
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 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 ::: Downloaded on - 28/09/2019 23:37:41 :::HCHP ...5...
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 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 ::: Downloaded on - 28/09/2019 23:37:41 :::HCHP ...6...
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 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."
8. 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:-::: Downloaded on - 28/09/2019 23:37:41 :::HCHP
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(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;
(iv) "cannabis plant" means any plant of the genus cannabis;"
9. It is clear that as per Section 2(iii) (a) of the NDPS Act 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 ::: Downloaded on - 28/09/2019 23:37:41 :::HCHP ...8...
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 cannabis alone is not charas and prima facie the entire cannabis irrespective of percentage of resin is charas.
10. Ms. Divya Sood, Deputy Advocate General has brought to the notice of this Court that one bail application no. Cr.MP(M) No. 613 of 2019, where the similar question is pending adjudication by a larger bench of this Court.
11. 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.
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12. 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.
13. 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.
14. Pending application(s), if any, also stand disposed of.
(Anoop Chitkara), Judge.
19th June, 2019(NK) ::: Downloaded on - 28/09/2019 23:37:41 :::HCHP