IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal Nos. 249 and 255 of 2007 Date of Decision 17th October, 2011 ________________________________________________________ Cr. Appeal No. 249 of 2007 Gulzar Singh ….Appellant Versus State of H.P. ….Respondent. Cr. Appeal No. 255 of 2007 Ashwani Kumar and another …..Appellants Versus State of H.P. …..Respondent ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ Cr. Appeal No. 249 of 2007 For the Appellant: Mr. Ramakant Sharma, Advocate. For the Respondent: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. Cr. Appeal No. 255 of 2007 For the Appellants: Mr. N.K. Thakur, Advocate. For the Respondent: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. __________________________________________________________________ 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 Dev Darshan Sud, J.(oral) Both these appeals arise out of the same incident and judgment of the learned Special Judge, Bilaspur. Accused Ashwani, Pradeep Kumar and Gulzar were charged for offences under Sections 20 of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) for possessing contraband in the nature of Charas weighing 5.600 Kgs. The learned Court sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of ` 2 lacs each and in default of which to suffer further simple imprisonment for two years. 2. The facts necessary for adjudication of these appeals are that FIR No. 44 of 2006 was registered with Police Station Sadar Bilaspur on the basis of Ruka Ext.PW8/A sent by ASI Ram Nath of Police Post, Swarghat. The prosecution case is that on 2.2.2006 the complainant alongwith H.C. Pratap Singh PW1, H.C. Keshav Chand, Constable Daulat Ram PW3, Constable Laxman Ram PW4, Constable Kewal Singh PW9, Constable Suresh Kumar PW7, HHG Suresh Chand and HHG Jeet Singh were on traffic checking duty on National Highway No. 21 near Hill Top hotel. At around 12.15 PM, a white coloured maruti car came from Kiratpur side which was stopped by the police. During this period, another Tata Indica car bearing registration No. PB-11-T- 7230 came from Bilaspur side. This car was being driven by a Sikh gentleman with two persons who were sitting inside. This car was also stopped by the police. The driver disclosed his name as Gulzar Singh who is the third accused before the learned trial Court and the other two occupants of the car were Ashwani Kumar @ Chhindi and Pradeep Kumar, who were the first and 3 second accused. They were found to be carrying a black Raxion bag, which, on checking, was found to be quite heavy. In the presence of Shri Dinesh Kumar and Shri Kartar Singh, who were the occupants of the car bearing No. HP-24B-0108, the bag was opened and found to contain three plastic bags, which were sealed with a khakhi plastic tape. From these bags, contraband in the nature of Charas which was in the shape of wicks (batties) was found. PW3 Constable Daulat Ram was sent to arrange weights and scales, which were brought by him and charas was found to be of 5.600 Kgs. On smelling, the material as also on the disclosure statements made by Ashwani Kumar and Pradeep Kumar, the contraband was found to be Charas. Two samples weighing 25 grams each were separated from the recovered Charas and put into separate polythene envelops and sealed with seal ‘S’. The remaining Charas weighing 5.550 Kgs. was put into two polythene bags having plastic tape khakhi in colour and put in a cloth parcel which was sealed with seal ‘S’. Thereafter the samples, bulk charas, Raxion bag and car were taken into possession and the NCB form was completed. Ruka was drawn up and case was instituted against the respondents for the offences under the NDPS Act. 3. To prove its case before the learned trial Court, the prosecution relied upon the evidence of police/official witnesses to hold that the requirement of Section 50 of the Act had been complied with, the NCB form and report of the Chemical Examiner Ext.PW12/C conclusively established that what the accused was carrying was contraband in the nature of Charas. The Court noticed that two independent witnesses PW10 Kartar 4 Singh and PW11 Dinesh Dogra have not supported the case of prosecution but that was of no consequence. 4. PW10 Kartar Singh in his examination in chief states that he is illiterate, he runs a vegetable shop at Panjpiri and on 2.2.2006 he had gone to Swarghat to purchase vegetables where the police met him and asked him to sign some papers, which he signed. Nothing was recovered in his presence. He was declared hostile and cross examined at length by the Public Prosecutor, but before that we advert to his cross examination by the accused. He admits that he knows none of the accused and they never met him. He was subjected to lengthy cross examination by the prosecution. He says that he is illiterate and cannot read and write. On that day, he had gone with Dinesh Dogra to pay obeisance at the holy shrine of Mata Naina Devi Ji in his car No. HP-24B-0108. He denied that he has made any statement Ext.PW10/A or that when he was returning in his vehicle he was stopped near hotel Hill Top at Swarghat. He stated that car of the accused was never checked in his presence. He then says that no recovery was made in his presence or any seal was handed over to him. He identified his signatures on Ext.PW1/A and says that no other marginal witness was present at that time. He says that this memo was never readover and explained to him. No proceedings took place in his presence. In short, his case is of total denial. 5. PW11 Dinesh Dogra states that he is running a Dhaba at Baner on National Highway No. 21. On 2.2.2006 he alongwith Kartar Singh had gone to Swarghat for bringing vegetables in his car No. HP-24B-0108. No proceedings were 5 conducted in his presence including stopping and searching the car belonging to the accused. He also admits in his cross examination that he never met any of the accused nor he is familiar with anyone of them. He admits that he is matriculate and can read and write Hindi and English. A suggestion was put to him by the prosecution that he had gone to pay obeisance at Shri Naina Devi Ji in his car alongwith Kartar Singh, which he denied. He also denied that this car was stopped by the police near Hill top hotel at Swarghat or that he had made any statement Ext.PW11/A. He denies that seal ‘S’ after use was handed over to Kartar Singh. He identified his signatures on Ext.PW1/A and says that no other marginal witness was present at that time. According to him, no proceeding took place in his presence. 6. The learned trial Court says that this evidence is not of much significance as the police witnesses are to be relied upon for the reason that a large quantity of contraband (Charas) was recovered from the possession of the accused. The case of the prosecution is supported by the police personnel and when considering the evidence on record, the learned Court holds that this is a case in which prior information had not been given to the police. It is also a case where there was no necessity of compliance with Section 50 of the NDPS Act. The case simply put by the prosecution is that when they were on checking duty near Hill top hotel at National Highway No. 21, a car was stopped during checking and on search, the contraband was recovered from the conscious possession of the accused. 6 7. In his statement under Section 313 of Cr.P.C., on question No. 17, the response of the accused Ashwani Kumar is that on the relevant day, he had gone to Manikaran to pay obeisance at the temple. He had quarreled with the owner of the hotel at Baner and was rescued by the public. When he was coming back from Manikaran at around 2/2.30 PM his car was stopped by the police at Swarghat and he was taken to the Police Chowki where he spent the night. 8. To similar effect is the statement of other accused Gulzar Singh. On this, the Court holds the fact that he was apprehended by the police at Swarghat could not be denied. Adverting to the evidence of PW12 ASI Ram Nath, the learned Court holds that he has supported the case in its entirety including the fact that two of the witnesses Kartar Singh and Dinesh Dogra, were present at the spot and they had signed seizure memos Ext.PW1/A and Ext.PW10/A. This statement has been corroborated on all material particulars by PW1 H.C. Pratap Singh who has also signed the seizure memo Ext.PW1/A, Constable Daulat Ram PW3 and Constable Laxman Ram PW4. The Court found nothing in their cross examination to disbelieve these witnesses. 9. True that the police witnesses do not require mandatory corroboration. (See Aher Raja Khima vs. State of Saurashtra AIR 1956 SC 217). In this case, the Supreme Court has observed that it would be disparaging to the police if they are to be treated with suspicion for discharging their duties. The other point urged by the prosecution is that it is not possible for the police to have planted a large quantity of contraband on the 7 accused. In this case, it is not a question of disbelieving the police witnesses in toto, but to test the veracity of their evidence when considered with the evidence of two independent witnesses as noticed above, we find from their cross examination that it has not been established as to whether these witnesses had in fact any close relationship with the accused or had any other motive to deny the prosecution case. 10. But if we ignore this, we find that the test on the contraband, which is Charas in the present case, has not been carried out in accordance with law. In Sunil vs. State of Himachal Pradesh, 2010 (1) Shim. L.C. 192 in which the Division Bench of this Court holds:- “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 tetrahydrocannabinol 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 percent. 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 8 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 tried 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. 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 tried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.” (at pp. 199-200) 11. Reaffirming this principle in Cr. Appeal No. 391 of 2002 titled State of H.P. vs. Subhash Sharma @ Bhasi the another Division Bench of this Court, in which one of us (R.B. Misra, J.) was a member holds: “15. Also we find that the report of the analysis Ext.PW11/A though mentions about the presence of cystholithic hair and beams alkaline test positive but it does not say that the resin content of 28.04 was of a cannabis plant. Based upon the above, it is opined that the exhibit contained the content of charas. The cystholithic hair is a fiber which could also be found in flowering tops o the cannabis plant, but the definition of charas does not include other parts like flowering and fruiting tops, leaves or stem. The definition of charas is given in Section 2 (iii) (a) of the Act. Charas, is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation 9 and resin known as hashish oil or liquid hashish. Since it does not make any mention whether this resin was of a cannabis plant. Therefore, in our opinion the report of analysis is discrepant. The Division Bench of This Court in which one of us (Surinder Singh, J.) was also one of the Members Sunil Kumar versus State Latest HLJ 2010 (HP) 207 examined almost similar reports in a Bunch Matters and taking note of the aforesaid definition of charas under the Act viz-a-viz the statement of the Experts recorded during the trial as well as before this Court, held that charas should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. Thus, in absence of the fact that it was also that of a cannabis plant, result of analysis cannot be said to have in conformity with the definition of charas. As such the accused persons were given the benefit of doubt and were accordingly acquitted.” What requires consideration is that two of the witnesses namely two independent witnesses PW2 Pradeep Kumar from whom the weights and weighing scale were got, he states that he does not remember the day, time etc. when Daulat Ram came to his shop asking for the weighing scales/weights etc. He says that these were taken from him somewhere between 11 AM and 12 Noon. We note that the prosecution evidence is that the checking was conducted at around 12/12.15 PM. We also note that PW10 Kartar Singh who was the witness of recovery and PW11 Dinesh Kumar have totally denied the entire version of the prosecution and there is nothing on record to show/establish that these witnesses are not stating the truth inasmuch as they have suppressed the entire version. Nothing could be garnered from their cross examination. 12. Adverting to the other aspects of the case, what we find is that Ext.PW12/C which is the report of the Chemical 10 Examiner, does not confirm to the requirement of law. The report of the Chemical Analyst is that microscopic examination shows the presence of cystolithic hairs and beams alkaline test is positive, the resin has described as 35.72% and then he states that in his opinion the exhibit contains contents of Charas. These were the very points which came up for consideration in Sunil’s case (supra). Adverting to the other aspects to disbelieve one set of witnesses or other, we hold that since the test is not in conformity with the requirement of law, the appellants cannot be punished for this offence. In these circumstances, both these appeals are allowed. The judgment and sentence imposed by the trial Court is set aside. The respondents namely Ashwani Kumar and Pradeep Kumar are ordered to be released from the prison forthwith, if not required in any other case. Appeals stand disposed of. (R.B. Misra) Judge October 17, 2011 (Dev Darshan Sud), ms Judge