IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 765 of 2002 Date of Decision 14th October, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Teja Singh @ Prem Lal ….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. Jagdish Vats, 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 22.8.2002 passed by the learned Sessions Judge, Kinnaur Session Division at Rampur Bushehr in Sessions trial No. 06 of 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2001, acquitting the accused/respondent for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. The prosecution case is that on 4.4.2001 at 9.30 PM, the police officials while on patrolling searched the accused-respondent and found 3 Kg 600 grams of Charas from the possession of the accused-respondent. Three samples of 25 grams each were taken from the recovered charas and the sample packets of charas and remaining charas had been sealed in four packets with seal impression ‘T’ and the samples were sent for chemical analysis. 3. In order to prove its case, the prosecution has examined as many as six witnesses in all whereas in his statement under Section 313 Cr.P.C., the accused/respondent denied the prosecution case and in defence two witnesses were examined. 4. On analysis of the prosecution evidences and the materials on record, we notice that PW1 Shri Narender who was working as Constable in P.S. Nirmand, PW2 Narender Singh, MHC, PW3 HC Roshan Lal, PW4 C. Kishori Lal, PW5 C. Guddu, PW6 Parkash Chand have endeavoured to support the prosecution 3 case. No other independent witness has been examined, whereas DW1 Sukh Ram, whose shop is stated to have been situated near the place of recovery, and DW2 Chandra Devi have endeavoured to support the defence and denied the prosecution case, interalia there are so many grounds and reasons indicated by the learned Sessions Judge while acquitting the respondent-accused. The most important aspect which is to be considered is that on perusal of NCB Form Ext.PX it appears that the same was not prepared on the spot and the Chemical Examiner on microscopic examination found that cystolithic hair present and beams alkaline test was found positive. On test, the resin containing 34.91% was stated to be present and on that basis the contraband was opined to be Charas. This Court vide its judgment dated 19.9.2011 in criminal appeal No. 391 of 2002, titled State of H.P. Subhash Sharma @ Bhasi states that as per the definition, the 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. This Court has observed in Subhash Sharma @ Bhasi’s case:- 4 “15. ……..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.” 5. In view of the aforesaid observations made and as the result of analysis, the report of Chemical Examiner cannot be said to be in conformity with the definition of charas interalia the other points i.e. discrepancies as found by the learned Sessions Judge, 5 as such the accused-respondent has to be given the benefit of doubt. 6. In view of these facts and circumstances, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt and so also failed to bring home the guilt to the accused. This appeal is devoid of merits, which accordingly is dismissed. Bail bonds furnished by the respondent stand discharged. (R.B. Misra) Judge October 14, 2011 (Dev Darshan Sud), ms Judge