1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.443/2008 Decided on: July 27, 2010 Chaman Lal …Appellant. VERSUS State of HP ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Ajay Kochhar and Mr. Vivek Sharma, Advocates. For the respondent: Mr.Rajinder Dogra, Addl. AG with Mr.Anil Jaswal, Dy.AG. R.B.Misra, Judge (Oral) The present criminal appeal has been preferred by the appellant-convict, under Section 374 of the Code of Criminal Procedure against the judgment dated 6.6.2008 passed by learned Special Judge, Mandi in Sessions trial case No. 10/2007, for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act. (in short ‘NDPS Act’), in reference to FIR No. 482/06 dated 8.11.2006 at Police station Sadar, Mandi, HP, thereby convicting and sentencing the accused for 10 years and to pay a fine of Rs. 1 lakh. In case of default in payment of the fine, accused shall further undergo imprisonment for three months. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. ASI Whether the reporters of the local papers maybe allowed to see the judgment? 2 Abhimanyu (PW-11) along with HC Prem Pal, HC Karam Chand, constable Vidya Sagar (PW-5) constable Suresh Kumar (PW-9), constable Baldev Lal and HHC Padam Singh were present at Kataula Road near bus stand Nandli, PS Sadar in connection with patrolling and Naka duty. At about 12.30 PM on 8.11.2005, police party noticed a person standing outside the shop carrying a bag in his right hand. The said person, on seeing the police, tried to escape toward a Galli. However, Naginder (PW-8) and Rajinder Pal (PW-7), standing there in that area, joined the police and chased and nabbed the accused and on inquiry, he disclosed his name as Chaman Lal and on suspicion that he was carrying contraband, an option was given, apprizing him that he has a right to be searched from the Magistrate or Gazetted Officer. However, the accused agreed for his search by the police party. On search, a bag Ex P-4, carried by him, was containing Charas Ex P-5 in the shape of sticks and Chapatis. After recovery, charges was weighed and found to be 2 Kgs. I.O separated two samples of 25 grams each from bulk Charas and put them in parcels Ex P-2 and Ex P-3 and sealed them with seal ‘T’ at six places. The remaining Charas was put in the same carry bag Ex P-4 and the same was sealed in the parcel with seal ‘T’. The specimen of seal ‘T’ was obtained on piece of cloth Ex PR. IO also put specimen of seal ‘T’ on NCB form Ex PF, which he prepared on the spot and recovered Charas was taken into possession vide memo Ex PQ and the signatures of Rajinder Pal (PW-7) and Naginder PW-8 were obtained on the parcels Ex P-1 to P-3. The seal after use was handed over to Rajinder Pal (PW-7). The accused was arrested and he was charged for the offence under Section 20 of NDPS Act. The case 3 property was deposited along with specimen seal ‘T’ and ‘U’ and NCB form etc. to MHC Nand Lal (PW-3), who entered the same in the Malkhana register, Ex PC. Out of two samples parcels Mark B- 1 and Mark B-2, one sample Mark B-1 was sent to the CFSL, Chandigarh through Amar Singh (PW-10) constable vide RC No. 212/06 along with sample seal T and U and copy of RC Ex PD. The said constable on back journey deposited the receipt with the MHC. The report of the Chemical Examiner is Ex PE. Inspection Rajesh Kumar prepared Special report Ex PA and sent the same through lady constable Shakuntla (PW-1) on 9.11.2006 which she delivered to Kishan Chand HC on the same day at 11.25 AM. HC Luder Singh (PW-2) was working at the relevant time as Reader to Dy. SP Mandi who has entered the Special report at serial No. 50 of the register on 11.2.206. 3. In order to prove its case, prosecution has examined as many as 11 prosecution witnesses, whereas in his statement under Section 313 Cr.PC, accused person has denied the prosecution case. 4. On scrutiny of the prosecution witnesses and material on record, the prosecution was found to have proved its case beyond reasonable doubt and the appellant/convict was convicted and sentenced for 10 years and to pay a fine of Rs.1. lakh, as indicated above. 5. Learned counsels for the appellant-convict have made the following submissions: (a) Though two independent witnesses, namely, Rajinder Pal ( PW-7 ) and Naginder (PW-8) were associated by the prosecution at the time of recovery of contraband 4 goods on 8.11.2005 by the police party. However, both the prosecution witnesses have declared hostile and have not supported the prosecution case and further have not supported the recovery and other acts of the prosecution; (b) The substance, which has been tested by the laboratory vide report Ext PE to be the Charas, was in fact the sample drawn from the bulk seized from the appellant-convict. (c ) No criminal offence has been made out against the appellant-convict. (d) The possibility of the alleged charges 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. 6. It has been further submitted by Mr. Ajay Kochhar, learned Advocate that stuff recovered as Charas is not Charas but was dried leaves of cannabis plant. 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 Mr. Kochhar 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 5 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: 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 been analyzed 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 6 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 analyse 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 (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 7 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 analysed 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 8 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 cannabin and are sometimes smoked in cigarettes with 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 the 9 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. 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 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 10 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. para-aminon 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. 11 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 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 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 12 ganja, unless accompany the flowering and fruiting tops of the plant. 31. In view of the above stated 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.” 7. We also notice Ex PE, the examination report of CFSL, which is reproduced as below: “Parcel Description and marking of the exhibit(s) One sealed white cloth parcel sealed with twelve seals (six each of U&T) containing exhibit-1 enclosed in a paper pack. Exhibit-1 21.76 gm Dark green coloured rods stated to be 25 gm. Charas. Purpose of Reference: For chemical examination & Report. Date(s) of Examination: 14.1.07 to 23.1.07. 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 been analysed as given below: Exhibit-1 is a sample of charas. After the examination, the parcel containing the exhibit/remnants of the exhibit has been sealed with the seal.” 13 8 On the scrutiny of statement of prosecution witnesses and material on record, we find that prosecution has failed to bring home guilt to the appellant-convict beyond reasonable doubts. 9 In the light of the verdict given by this Court in Panne Lal Versus State of HP., 2010(2) Crimes 558 (HP), 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 the present case is doubtful. Relying upon the decision of Pane Lal (supra), benefit of doubt is given to the appellant-convict. 10. Relying on the decision of Panne Lal (supra), Division Bench of this Court in Bajinder Singh Vs. State of H.P in Cr. Appeal No. 79 of 2009, decided on 15th July, 2010, has given benefit of doubt to the appellant-convict. 11. In our considered view, in present case also for the reasons stated above, the order dated 6.6.2008 of Ld. Special Judge passed in Sessions Trial Case No. 10/2007 is set aside. Appellant-convict shall liable to be set free to his liberty, unless required in any other process of law. ( R.B.Misra ), J. July 27 ,2010 ( V.K.Sharma ), J. (sl) 14