IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 761 of 2002 Date of Decision : 13.10.2011 _________________________________________________________ State of H.P. ….Appellant Versus Bachittar Singh ….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 _____________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the Respondent: Mr. Dinesh Thakur, Advocate, vice Mr. N.S. Chandel, Advocate. ______________________________________________________________ R.B. Misra, J. (oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, against the judgment dated 30.9.2002 passed by the learned Sessions Judge, Kangra in Sessions trial No. 5-N/VII of 2002, acquitting the accused/respondent for offences under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called ND&PS Act) in reference to FIR No. 318/ 2001 dated 11.11.2001. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case, in brief, is that on the intervening night of 10/11.11.2001 Naka was laid by ASI Karam Singh (PW11) along with constable Daljit (PW1), Constable Vijay Kishan (PW2) and H.C. Rajinder Kumar (PW3). At about 6.00 A.M. accused was found coming from Nurpur side and after observing police party accused turned back and tried to escape, however, he was apprehended and on search 1.400 grams of charas was recovered from his possession, out of which two samples each of 20 grams were taken and the samples and balance charas was sealed in separate packet. The samples were sent for examination from Chemical Analyst. On completion of investigation, the accused was charged for the aforesaid offence. 3. In order to prove its case, the prosecution has examined as many as 11 witnesses, whereas in his statement under Section 313 Cr.P.C., the accused/respondent denied the prosecution case. 4. We have gone through the statements of the prosecution witnesses and the materials on record inter alia the analysis as made by learned Sessions Judge. We notice that “NCB Form”, Ex.PG does not reveal that the same was prepared on the spot. Samples taken at the time of seizure were sealed with seal ‘M’ and resealed with seal ‘S’ and the same seals were not put on the ‘NCB Form’. The Chemical Analyst on microscopic examination of the contraband good has found cystolithic hair present and on quantitative, test the Chemical Analyst found Beam’s alkaline test positive and resin 17.28% present in the sample. 5. On such analysis Chemical Analyst opined that the recovered good was charas. This Court (DB) (in which one of us Hon’ble R.B. Misra, J. was member) on 19.9.2011 while disposing of the Criminal Appeal 3 No. 391 of 2002 (State of H. P. versus Subhash Sharma @ Bhasi) has observed in the relevant paragraphs as under: “15. Also we find that the report of the analysis Ex.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 plan. 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 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. 16. In the instant case, as already stated above, firstly the sample so analyzed by the laboratory could not be connected with the recovered stuff and secondly report of the analysis is failing short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considering opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed.” 6. In view of the aforesaid observations made by this Court in Subhash Sharma @ Bhasi‘s case (supra), it is clear that the contraband good recovered in the present case cannot be definitely said to be charas as such, conviction and sentence cannot be awarded against the accused. 7. In the facts and circumstances of the case, we find that learned Sessions Judge had rightly arrived at the finding that the 4 prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt to the accused. Accordingly criminal appeal being devoid of merit is dismissed. Bail bond furnished by the respondent/accused is discharged. (R.B. Misra) Judge October 13, 2011 (Dev Darshan Sud), (jai) Judge