1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 86 of 2000 Decided on August 13, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Roshan Lal ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Ms. Salochana Kaundal, Legal Aid Counsel. Justice R.B. Misra,J. (Oral) This Court has been pleased to appoint Ms.Salochana Kaundal, Advocate, from the panel of Legal Aid Counsel to conduct the case on behalf of the respondent- accused, as it has been brought to our notice that Mr. Alok Ranjan, Advocate, has shifted to some other place. Accordingly, Ms. Salochana Kaundal, is requested to assist this Court and she has also agreed for the same. The documents are being provided to her and she shall be paid fee of Rs. 2000/- for entire case payable to her from Legal Aid Fund of H.P. High Court. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 24.12.1997, passed by Learned 2 Sessions Judge, Mandi, H.P., in Sessions Trial No. 11 of 1997, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused. 3. The prosecution case is that on 30.12.1996, a police party, comprising of Sub-Inspector Krishan Lal and another police official, at Alsindhi, reached Alsindhi at about 8.20 A.M. , and the bus was stopped by Sub-Inspector Krishan Lal and he started checking the same. The respondent-accused sitting on seat No. 20, was taken out of the bus as Sub-Inspector Krishan lal (PW.10) became suspicious that the accused was carrying 'charas', thereafter, respondent-accused was searched in presence of Kushal Chand (PW.1) and Parma Nand (PW.2) after apprising him as to whether he wants to be searched by a Magistrate or by the Gazetted Officer or by Sub Inspector Krishan Lal himself. On being agreed, the respondent-accused was searched by Sub Inspector Krishan Lal (PW.10) and on search, two polythene packets containing 'charas' were recovered from underneath the socks worn by the respondent- accused. On weighing, the 'charas' was found to be 500 grams. Two separate samples of 20 grams each were taken and the sample and remaining 'charas' were put in separate packets and sealed. The socks and bandage were also taken in possession separately and sealed. One of the samples was sent to the chemical examiner Forensic Science Laboratory, Chandigarh. 3 4. After investigation, respondent-accused was arrested and charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution examined as many as ten prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence. 5. From the scrutiny of the prosecution witnesses, we find that two independent witnesses Kushal Chand (PW.1) and Parma Nand (PW.2) in whose presence, the police party, said to have made search on 30.12.1996, however, subsequently have not supported the prosecution case. PW.2 Parma Nand has stated that when he reached the shop of Kushal Chand (PW.1), the police party was already present on the shop of PW.1 and on asking by the police, he put his signatures on various papers. 6. As per testimony of PW.10, bus was stopped and accused was sitting in seat No. 20 on search in presence of PW.1 Kushan Chand and PW.2 Parma Nand, 'charas' was recovered. Similar statement was also given by PW.8 (Nihal Singh). Such testimonies of PW.8 Nihal Singh and PW.10 Krishan Lal, indicate that Sub Inspector had prior information about the accused carrying 'charas' otherwise he could not have dreamt of that the accused was carrying 'Charas' . In that event, Sub Inspector Krishan Lal has failed to comply with the provision of Section 42 (2) of the 'NDPS Act'. PW.10 while making search has only apprised the accused that whether he wanted to be searched by a Magistrate or Gazetted Officer or by PW.10 himself and on agreeing, search was made by PW.10 Krishan Lal, as such, he 4 has not complied with the provisions of Section 50 of the 'NDPS Act', as the accused was to be apprised of that he has a right to be searched and by not apprising him, mandatory requirement of Section 50 of 'NDPS Act' was not complied with. The sample was sent for chemical examination and Ex. PZ indicates as below:- “Parcel No. of seal & Description impression 1. 3-A Dark green colour solid mass in stick form wt. App. 22 grams. 7. Purpose of reference For chemical analysis and report RESULT OF EXAMINATION The contents of Exhibit-1 was found to be charas. Note: After the examination the remnants of the exhibits were sealed with the seals of TOX, CFSL, CHD”. 7. Mr. Rajinder Dogra, learned Additional Advocate General, has submitted that though two independent witnesses have not supported the prosecution case, however, since the police officials in discharge of their duty, in a natural course, have searched the accused and have recovered 'charas' of 500 grams from his possession and the same was sent for chemical examination, where it was found to be 'charas' was being carried by the accused, as such, in reference to other prosecution witnesses, the case of the prosecution is treated to be reliable. 8. Whereas, on the other hand, Ms. Salochana Kaundal, Learned Advocate, has submitted that two independent witnesses in whose presence the search was made by PW.10 and recovery was said to have been made, have not supported the prosecution case, as such, the prosecution case 5 becomes doubtful. Ms. Salochana has further submitted that mandatory requirement of Section 50 of the 'NDPS Act has not been complied with, as PW.10 Krishan Lal has not apprised the accused that he has a right to be searched and only apprising him that whether he wanted to be searched by a gazetted officer or by a Magistrate or by PW.10 himself, the requirement of Section 50 of 'NDPS Act' is not fulfilled. Learned counsel for the respondent-accused Ms.Salochana has also submitted that the possibility of the alleged 'charas' being only bhang i.e. the dried leaves of cannabis plant, the possession of which is no offence, cannot be ruled out and hence, no offence is made out under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 9. It has further been submitted by Ms.Salochana Kaundal that stuff recovered as 'charas' but was dried leaves of cannabis plant and in view of the decision of this Court in Panne Lal versus State of H.P., 2010 (2) Crimes 558 (H.P.), the possession of such recovered good cannot be said to be contraband good and possession of which is not an offence. In support of his submissions, Ms. Salochana Kaundal has referred some paragraphs of the above said judgment. For convenience, same are given as below:- “9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh: 6 1. Sunil versus State (Cr.A No.267/2007) 2. Surinder Singh versus State (Cr.A No.311/2007) 3. Panne Lal versus State (Cr.A No.45/2008) 4. State versus Jeet Ram (Cr.A No.363/2008) 10. In all the aforesaid cases, reports given by the above said of the Forensic Science Laboratory are similar, rather verbatim the same. They read as follows: RESULTS OF THE EXAMINATION 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 beenanalyzed as given below: Exhibit-1 is a sample of charas. Shri R.S. Verma, who signed these reports, as Director of the said Forensic Science Laboratory, was examined as a witness, in two cases. In one case, i.e. Panne Lal versus State (Cr.A No.45/2008), he was examined as a witness of the prosecution and in another, i.e. State versus Jeet Ram (Cr.A No.363/2008), he was examined as a witness of the defence. 15. Dr. R.S. Verma, who was examined as PW-11, by the trial Court, in the case giving rise to appeal titled Panne Lal versus State (Cr.A No.45/2008), admitted that Charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with Charas and that resin containing tetrahydrocannabinol is Charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify Charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyze the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin. 16. While appearing as DW-1 before the trial Court, in another, i.e. State versus Jeet Ram (Cr.A No.363/ 2008), he (Dr. R.S. Verma) that it is tetrahydrocannabinol which is the active agent in the resin and that it is the presence of tetrahydrocannabinol, which shows that the sample stuff is a cannabis product. His saying that presence of tetrahydrocannabinol that the stuff is cannabis product clearly suggests that the test conducted by was to find out if the stuff was a product of cannabis and not the specific product,defined as Charas in Section 2(iii)(a) of the Act. Cannabis are. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis 7 (hemp), Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant, of is not an offense We may observe that finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. He stated that there was resin present in the sample, but he did not mention its percentage in his report, as the same was not required to be mentioned. His statement that resin was present in the sample indicates that the entire stuff was not resin. Further, his statement that the presence of indicates that the stuff is cannabis product, shows that tetrahydrocannabinol is to be present not only in resin/Charas but also in other forms of cannabis hemp), i.e. ganja and mixture, as defined in Sections 2(iii)(b) and 2(iii)(c) of the, As a matter of fact, tetrahydrocannabinol is present not only in the three forms of cannabis (hemp), defined in Section 2(iii) of the Act, but also in its, stem and even the seeds, as we would be indicating in the later part of this and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, is the fabric of the cannabis plant, do not mean that the analyzed stuff is, means separated resin, per Section 2(iii)(a) of the Act, and not any other product of cannabis. 17. In the remaining two cases, reports are given by Shri A.K., of State Forensic Science Laboratory, Junga (H.P.), who was examined as a Court witness by one of us (Surjit Singh, J) sitting in single. In one of his reports, Ex. PX, in case titled Karuna Shankar Puri versus State (Cr.A No.500/2008), he has stated that Charas is a mass and resin is an ingredient of Charas, which on testing was found present. Mention in the result of analysis suggests that the witness is not even of the definition of Charas. Resin is not an ingredient of Charas but it is the separated resin alone which is Charas, per definition given in Section 2(iii)(a) of the Act. 18. Chemical Examiner, Shri A.K. Wasuja, when examined as a Court witness, by this Court, in Criminal Appeal No.500 of 2008, titled as Karuna Shankar Puri versus State, stated that he did not agree with the definition of “Charas”, as given in Section 2(iii)(a) of the Act and that as a matter of fact “Charas” was composition of about 400 substances. In of this claim, he relied upon Ex. C-1, comprising four sheets of some literature downloaded by him from the Internet. Ex. C-1 does not pertain to Charas but Marijuana or Marihuana, which means cannabis. When his attention was drawn to this fact, he admitted that Ex. C-1 pertained to Marijuana. 19. “Marijuana”, as per Webster’s Third New International Dictionary, Volume 11, means the dried leaves and flowering tops of the pistillate hemp plants that are the source of the drug cannabis and are sometimes smoked in cigarettes with 8 consequent effect of the drug on the higher nerve centres to produce peculiar psychic disturbances and other words for “Marijuana”, as per the aforesaid Dictionary are bhang, ganja and hashish. That means “Marijuana” includes not only Charas, ganja and mixture, as defined in clauses (a), (b) & (c) of Section 2(iii) of the Act, respectively, but also dried leaves and other parts of cannabis plant. 20. From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal versus State and as DW-1 in appeal titled State versus Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW-1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri versus State, it appears that both the Experts are unaware of the term “Charas”, as defined and made an under the Act and that the tests were conducted by them to find if the stuff tetrahydrocannabinol and cystolithic hair. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW-9/D given in case titled Raj Kumar versus State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps uncertained quantity of Charas/ resin. 21. We have noticed hereinabove that tetrahydrocannabinols are found not only in theCharas, 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. We have observed so, on the basis of authoritative literature. 22. In The New Encyclopaedia Britannica, 15th Edition, or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). 23. In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Sixth Edition, it is mentioned at Page-10.54, in answer to Question No.10.21 that tetrahydrocannabinol-THC is active principal and it is present in bhang to the extent of 15 per cent, in ganja to the extent of 25 per cent and in Charas to the extent of 25-40 per cent. 24. In Principles and Practice of Forensic Medicine, First Edition, by Dr. Umadethan, it is mentioned at Page-486 that principal psycho active substance in cannabis (Marijuana, Marihuana) is delta-9 tetrahydrocannabinol and besides this there are cannabinol, cannabidiol, cannabinoleic acid and 400 other cannabinoids. 25. Cannabis, according to Lyon’s Medical Jurisprudence in India, Tenth Edition (Page-747), includes bhang, which means 9 dried leaves, ganja, flowering tops, Charas, the resin which exudes from the leaves and branches, which is often adulterated and Majun, a sweetmeat prepared with bhang. 26. As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, tetrahydrocannabinol will be found even in the leaves, stem, seeds and the flowering and fruiting tops of cannabis plant. But resin is Charas, when it is separated from the plant or its aforesaid parts. Presence of resin in the aforesaid parts does not make such parts Charas nor is the resin in such parts Charas, unless separated, in view of the definition in Section 2(iii)(a) of the Act. 27. Learned Advocate General, who appeared for the State, submitted that a similar question was raised before a Division Bench of Gujarat High Court, in Dhanpalsingh Barunsingh Thakur and others versus State of Guajrat, 1995 Cri. L.J. 3751, and the learned Judges, relying upon the report of the Chemical Examiner, held that the entire sample stuff was Charas. A reading of the judgment shows that the Expert, who appeared as PW-1 based his opinion not only on his own tests but also the report of Botanical Expert. The substance was found to contain cannabis species, as it gave positive result, when subjected to para-aminon phenol test and thin layer chromatography test. Contention raised in that case was that the Expert had not given the opinion that the substance was resin obtained from cannabis plant or a concentrated preparation and resin known as hashish oil or liquid hashish. No doubt, the Expert in that case did not specifically say that the sample stuff was resin of cannabis plant but he conducted two tests, i.e. paraaminon phenol test and thin layer chromatography test and came to the conclusion that the sample was Charas, which meant resin. 28. In the present case, as noticed hereinabove, it is made out from the reports, particularly report Ex. PW-9/D as also the testimony of the two Experts, namely Dr. R.S. Verma and Shri A.K. Wasuja, that the entire stuff was not resin and that the tests, which they conducted, were meant to ascertain whether the stuff was cannabis (Marijuana) and not for Charas. Therefore, the judgment of the Gujarat High Court, referred to above, does not help in determining the question we are dealing with. 29. 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 witnessbox 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 10 Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage of in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. 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 offense, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offense, 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. 31. 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 offense, cannot be ruled out.” 10. On analysis of the prosecution witnesses and material on record, we find that testimony of two prosecution witnesses e.g. PW.8 Nihal Singh and PW.10 Krishan Lal does not inspire confidence, as the search and seizure, have not been supported by the prosecution witnesses. In view of the testimony of PW.8 Nihal Singh, when bus arrived at Alsindhi, he and Sub Inspector Krishan Lal (PW.10) boarded the bus to check the passengers. S.I./S.H.O. Krishan Lal started checking the 11 passengers. There was a passenger sitting in the middle of the bus. SHO took him out from the rear door. SHO Called Kushal Chand (PW.1) shopkeeper and Parma Nand (PW.2) from nearby shop. SHO Krishan lal gave in writing to the accused that he intends to take his search, as he suspects that he was carrying 'charas' . Krishan Lal SHO also asked the accused as to whether he wanted to be searched by a Magistrate or a gazetted officer and on agreeing the accused gave in writing that he is willing to be searched from Sub Inspector and search was made. The circumstances indicated by PW.8 reveal that a prior intimation was available with PW.10 Krishan lal. 11. On analysis of the prosecution witnesses and material on record, we also notice that Ex.PZ indicates examination report of CFSL as below:- “Various laboratory tests were carried out with the exhibits-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.” 12. On scrutiny of the statement of the prosecution witnesses and material on record, we find that prosecution has failed to bring home the guilt to the respondent-accused. 13. In the light of verdict given by this Court in Panne Lal versus State of H.P., 2010 (2) Crimes 558 (H.P.), the possession of such recovered goods cannot be said to be contraband goods and possession of which is not an offence. Therefore, chemical report given in present case is doubtful. 12 Relying upon the decision of Panne Lal versus State of H.P. (supra), the benefit of doubt is given to the accused- respondents. 14. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Sessions Judge has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 15. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge August 13, 2010 (V.K. Sharma) (Purohit) Judge