IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A No. 59 of 2007 Decided on : August 28, 2009 Tek Ram …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr. Anup Chitkara, Advocate. For the Respondent: Mr. P.K. Sharma, Additional Advocate General, with Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge( Oral ) Appellant has appealed against the judgment dated 20th October, 2006 of learned Additional Sessions Judge, Solan, whereby he has been convicted of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, for allegedly possessing 1.890 Kgs of Charas and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo simple imprisonment for a further period of two years. 2. Case of the prosecution, which led to the trial and conviction of the appellant, may be stated. On 14.1.2006, PW-1 ASI Mool Raj, then posted as I.O. Police Station, Solan, Whether reporters of the local papers may be allowed to see the judgment? …2… organized a Naka near Senta Roza Hotel on Solan-Rajgarh Road, at a distance of about 6 kilometres from Solan. Around 10 A.M., a bus bearing registration No. HP-14-2897 appeared from Pankufar side. The bus was got stopped by PW-10 ASI Mool Raj and the police officials accompanying him, and checking of the passengers and their luggage was carried out. Appellant was occupying seat No.20. He had one polythene bag with him, which he had kept between his legs and on seeing the police he pushed it underneath his seat. That aroused the suspicion of the police. Bag was searched and it was found to contain 1.890 kgs Charas. Two samples, each weighing 25 grams, were separated. One sample was sent to Chemical Examiner, who vide report Ext. PW9/F, opined that the sample was of Charas inasmuch it contained resin to the extent of 31.07%. 3. Prosecution examined PW-10 ASI Mool Raj, PW-1 Deep Kumar, an independent witness, and PW-3 Constable Ramesh Chand, who supported the version testified by PW-10 ASI Mool Raj. Conductor of the bus, namely PW-2 Pappu, was also examined. He, however, turned hostile. 4. Appellant tried to show that the bag containing Charas was not recovered from underneath his seat nor was it kept by him between his legs and that it was recovered from a rack, above the seat, but his plea did not find favour with the trial Court, inasmuch as such a plea had not been suggested to the prosecution witnesses. …3… 5. We have gone through the record and heard the learned counsel for the appellant as also Shri P.K. Sharma, learned Additional Advocate General. 6. Learned counsel representing the appellant concedes that so far as the recovery of stuff from the appellant is concerned, the defence has not been able to shake the testimony of the prosecution witnesses. However, he says that the percentage of resin being only 31.07% in the recovered stuff, the entire stuff cannot be said to be Charas and that weight-wise only 31.07% of the total recovered stuff is to be treated as Charas, in view of the report Ext.PW9/F of the Chemical Examiner. In support of this plea, he relies upon a Division Bench judgment of this Court in Dharam Pal versus State of H.P. and another (Latest HLJ 2007 (HP) 827), as also a judgment of the Supreme Court in E. Micheal Raj Versus Narcotic Control Bureau, (2008) 2 SCC (Cri) 558. 7. This Court in Dharam Pal versus State of H.P. and another (Latest HLJ 2007 (HP) 827), has held that it is the resin of cannabis plant in the stuff, which falls within the definition of Charas, as given in Section 2(iii)(a) of the Narcotic Drugs and Psychotropic Substances Act. Therefore, only that much of the stuff, recovered from the appellant, is to be treated as Charas as is equal to the resin content of it. Similar view has been taken by the Hon’ble Supreme Court in a case pertaining to heroin in State of NCT of Delhi Vesrus Ashif Khan alias Kalu, (2009) 4 SCC 42. …4… 8. In view of the above judicial precedents, submission made by the learned counsel for the appellant is accepted. Quantity of Charas in the recovered stuff works out to 587.22 grams, which is less than the commercial quantity and, therefore, the appellant is not liable, under Section 20(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, but under Section 20(ii)(B) of the said Act. Accordingly, we partly accept this appeal and set aside the conviction of the appellant, under Section 20(ii)(C) but convict him, under Section 20(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act, 1985, and sentence him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for a further period of six months. Appeal stands disposed of accordingly. (Surjit Singh), J August 28, 2009(ss) (Surinder Singh), J