IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 375 of 1998 Date of decision: 26.3.2010. State of H.P. …..Appellant. Vs. Parkash Chand …. Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.K. Sharma, Addl. Advocate General with Mrs. Shubh Mahajan, Deputy Advocate General. For the Respondent : Mr. M.L. Brakta, Advocate. Kuldip Singh, J ( Oral) The State has come in appeal against the judgment of acquittal recorded by learned Sessions Judge, Shimla on 1.5.1998 in S.Tr. No.5-S/7 of 1998. 2. The prosecution case in brief is that on 7.11.1997 police party headed by PW-9 Mool Raj was in village Tarapur for routine patrolling. The accused was seen sitting on one side of the road at place Kathmor. On seeing the police, he tried to escape towards village Tarapur. He was chased and nabbed by the police officials. PW-2 Parma Nand, Mohan Lal farmers who were working in the nearby fields were called. The accused was informed that he had a right to be searched in the presence of a Gazetted Officer or a Whether the reporters of the local papers may be allowed to see the Judgment? Magistrate and that in case he so desired the search of his person could be arranged in the presence of some Gazetted Officer or a Magistrate. The accused opted to be searched by Head Constable himself instead of Gazetted Officer or Magistrate. PW-9 Mool Raj prepared memo to this effect and got his own personal search from the accused in the presence of PW-2 and Mohan Lal, nothing was recovered from the search of PW-9. Thereafter PW-9 conducted the personal search of the accused in presence of PW-2 and Mohan Lal. The accused was carrying a bag and inside the bag charas was wrapped in small bundles in pieces of news papers. Those bundles were contained in a plastic bag of yellow colour. The recovered stuff was searched in presence of the witnesses and found to be 2 Kg. 525 grams. Two samples each weighing 25 grams were separated from the recovered stuff, samples and remaining bulk recovered stuff were sealed in three separate parcels with seal ‘T’. 3. The report of the search and seizure was prepared and sent to police station, Theog for formal registration of the case. The three parcels were handed over to the SHO, Police Station, Theog who put them in three other parcels of cloth and resealed those parcels with his own seal ‘MS’ One of the two samples was sent to Chemical Examiner, Neemuch and report Ex.PH was received that the sample was of charas. The accused was challaned and charged under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short Ac). 4. The prosecution has examined nine witnesses; some documentary evidence has also been placed on record. The statement of accused under Section 313 Cr.P.C. was recorded wherein he denied the prosecution case. The learned Sessions Judge has acquitted the accused, hence appeal by the State. 5. We have heard learned counsel for the parties and we have also gone through the record. As per the prosecution case PW-9 Mool Raj Head Constable, PW-1 Ratti Ram constable, Kuldeep Kumar, PW-2 Parma Nand and Mohan Lal were present at the time offending stuff was recovered from the accused. Out of them the prosecution has examined only PW-1 Ratti Ram, PW-2 Parma Nand and PW-9 Mool Raj, Head Constable. PW-2 Parma Nand did not support the prosecution. He has stated nothing was recovered from the accused in his presence. No proceedings had been conducted in his presence. He was declared hostile and was cross-examined by the Public Prosecutor. In cross-examination he has stated that his signatures were obtained on blank papers by the police. The memo Ex.PA, PB and PC bear his signatures. He has denied that seal after use was given to him. The parcel Ex.P-4 bears his signature. He signed the cover parcel when it was empty. He ultimately denied that in his presence personal search of the accused was conducted by the police and 2 kg. 525 grams charas was recovered. The witness Mohan Lal was given up by the prosecution. 6. PW-1 Ratti Ram has stated that they spotted a man sitting near Kathmor near village Tarapur. On seeing the police party the man tried to flee away. They chased him and apprehended him. Mohan Lal and Parma Nand were called to witness the search of the apprehended man. The polythene bag contained charas in the shape of fingers. Head Constable Mool Raj drew up a report Ex.PD for the registration of the case. It was handed over to him for being taken to the police station. He took the report to the police station and delivered it to the MHC to formally register the case. He carried a copy of the FIR Ex.PE and handed over to the Head Constable. In cross-examination he has stated that they started from Police Post Dehan at 1 P.M. The fields from where the witnesses were called were at a distance of 500-600 metres from the spot. He remained on the spot 1-1/2 to 2 hours. 7. PW-9 Mool Raj Head Constable has stated that seal after use was entrusted to witness Ratti Ram constable but later on said seal was handed over to Parma Nand. The report Ex.PD was sent to Police Station, Theog through Constable Ratti Ram. The case property consisting of three parcels was deposited with the SHO, the same night at 2.30 A.M. In cross-examination he has stated that they started from Police Station that day at 3.05 PM. Parma Nand and Mohan Lal were working in the nearby field at a distance of about 20 metres from where the accused was nabbed. 8. PW-3 Ved Parkash MHC, Police Station, Theog has stated that two samples were sent to Chemical Laboratory Neemuch through constable Sham Lal. The samples were sent to the laboratory on 10.11.1997. PW-5 Sham Lal constable has stated that he carried a sample to laboratory Neemuch and delivered the same to the official concerned in the laboratory. PW-6 Hardesh Bisht, DSP has stated that he had received a special report from Head Constable Mool Raj through SHO, Police Station, Theog. PW-7 Gurdial Singh SI/SHO, Police Station, Theog has proved the report of Chemical Examiner, Neemuch Ex.PH. 9. The prosecution has not examined independent witness Mohan Lal. PW-2 Parma Nand has not supported the prosecution case. In these circumstances statements of PW-1 Ratti Ram constable and PW-9 Mool Raj Head Constable are to be appreciated. The accused has denied the case completely. PW-1 Ratti Ram has stated that they started from the police post at 1 PM whereas PW-9 Mool Raj has stated that they started from the police station at 3.05 PM. PW-1 has stated that witnesses were called from a distance of 500-600 metres. PW-9 has stated that witnesses were called from the field which was at a distance of 20 metres. The seals ‘T’ and ‘MS ’ have not been produced in the Court. 10. The relevant part of the Chemical Examiner Report Ex.PH is as follows:- “The sample is in the form of dark brown colour rod shape solidmass having characteristic colour of charas and gives positive tests for tetrahydrocannabinol (THC). Sample is used up in tests. Empty packet etc. is being returned herewith in a sealed cover. The sample is found by qualitative analysis to be charas (CHARAS) within the meaning of section 2 (iii) (a) of the Act. Section 2 (iii) (a) of the NDPS Act, 1985”. In Sunil v. State of H.P. Latest HLJ 2010(HP) 207 and others a Division bench has decided six appeals. In four appeals the reports given by the Director Forensic Science Laboratory were as follows:- “Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below: Exhibit-1 is a sample of charas”. In Cr. Appeal No.314 of 2008, Raj Kumar v. State the report of the Chemical Examiner was as follows: “Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/1 & P/2 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in both the samples. The microscopic examination indicated the presence of cystolithic hair in both the samples. Charas is a Resinous mass and resin is an ingredient of Charas which on testing was found present. The quantity of Resin in cannabis plant/Charas sample varies from one area to the other area. The result thus obtained is given below. For both the samples. The exhibits P/1 & P/2 are the samples of CHARAS.” In Cr. Appeal No.500 of 2008, Karuna Shankar Puri vs. State, the Chemical Examiner report was as follows:- “Various scientific tests such identification, chemical and chromatographic were carried out in the Laboratory with the exhibit P/1 reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol inn the sample. The microscopic examination indicated the presence of cystolithic hair in the sample. The result thus obtained is given below:- The exhibit marked as P/1 is a sample of CHARAS.” 11. The Division Bench in Sunil (supra) has held that tetrahydrocannabinols are found not only in the Charas, which means separated resin of cannabis plant but also in ganja, as defined in Section 2(iii)(b) of the Act and even in the leaves, seeds and stems of cannabis plant. The Division Bench has observed so, on the basis of authoritative literature. 12. In para-29 of the judgment the Division Bench has held as follows:- “As noticed hereinabove, the 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. Specific 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.” The Division Bench in para-30 has held as follows:- “According to parikh’s Textbook of Medical 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 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 fibre 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”. The Division Bench ultimately in para-31 has held as follows:- “In view of the abovestated 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 being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out”. 13. Chemical Examiner report Ex.PH is not better then reports noticed by Division Bench in Sunil (supra). Therefore, on the basis of report Ex.PH and in view of Sunil case (supra) it cannot be said that contraband recovered from the accused was charas. The learned Sessions Judge has rightly appreciated the material on record in acquitting the respondent. The learned Addl. Advocate General has failed to establish that the view taken by the learned Sessions on the basis of oral and documentary evidence is wrong. 14. No other point was urged. 15. The result of above discussion, appeal is dismissed. Bail bonds are discharged. ( Kuldip Singh ), ( Dev Darshan Sud), Judge. Judge. March 26, 2010 (sks)