1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 324 of 1999 Decided on August 2, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Neel Chand & Others. ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Ravinder Thakur, Advocate. Justice R.B. Misra,J. (Oral) Heard Mr. Rajinder Dogra, Additional Advocate General and Mr. Ravinder Thakur, learned counsel for the accused-respondents. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 18.2.1999, passed by Learned Sessions Judge, Kullu, H.P., in Sessions Trial No. 30 of 1997, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged accused/respondents. 3. The prosecution case is that on 18.7.1991, at about 5.30 P.M., ASI Mahesh Kumar, alongwith HC Lal Chand and other Constables, while on patrolling, has received a secret 2 information that three boys, namely, Neel Chand, Deep Ram and Kalu Ram, were staying in room No. 2 of 'Kishore Guest House' at old Manali, and they were in possession of charas, as such, ASI Mahesh Kumar recorded such information and sent the same to Superintendent of Police, Kullu. ASI Mahesh Kumar also prepared Rukka and sent the same to the Police Station for registration of a case, on the basis of which FIR No. 168 of 1997 was registered. Thereafter, ASI Mahesh Kumar proceeded towards 'Kishore Guest House', where, with the participation of Ajay Kataria and Geetu Kataria, room was searched and charas was recovered from the almirah of the room. On weighing the charas was found 250 grams, from which two samples of five grams were taken out separately and sent for chemical examination. The remaining cannabis (charas) was kept in a packet. A special report given by ASI Mahesh Kumar was also sent to Dy.S.P. Kullu. 4. After investigation, all the accused were charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses. Whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. PW.1 Bir Singh a member of patrolling party, PW.2 Mast Ram, another member of patrolling party, PW.3 HC Ghansham Chand, Reader to Dy.S.P. Kullu, PW.4 HC Surinder Kumar, PW.5 Kuldeep Rana, who re-sealed the three parcels with impression 'K' and deposited the same with MHC vide Ex. 3 P1 and Ex.P2, PW.6 S.I. Rulia Ram, prepared the challan, PW.7 Neelbir Singh, who helped in weighing the charas, PW.9 Geetu Kataria and PW.10 Ajay Kataria were two independent witnesses. PW.11 Constable Gurdial Singh and PW.2 Mast Ram in discharge of their official duty have supported the prosecution case to the extent they were assigned their role. However, PW.12 ASI Mahesh Kumar has investigated the case and has endeavoured to prove the prosecution case by associating above two independent witnesses. 6. After the investigation, the following exhibits Ex. PA Rukka, Ex.PA/1 endorsement on Rukka, Ex.PB special report, Ex.PC information, Ex.PD FIR, Ex.PE copy of Guest House Registration Index, Ex.PF information regarding search, Ex.PG recovery memo, Ex.PH information regarding offence, sentence and arrest, Ex.PJ Spot Map, Ex.PK statement of witness Geetu Kataria under Section 161 of Cr.P.C., Ex.PL statement of witness Ajay Kataria under Section 161 of Cr.P.C. and Ex.PM report of chemical examiner, were exhibited. 7. We have gone through the contents of the statements of the prosecution witnesses and material on record, and have also heard the learned counsel for the parties. Mr. Dogra, learned Additional Advocate General, has submitted that the prosecution comprising of the above mentioned police officials reached the above mentioned Guest House and recovered charas from the almirah of a room of the said guest house, which was in possession of the accused. Despite the fact that independent witnesses have not supported the prosecution 4 case and they have been declared hostile, however, ASI Mahesh Kumar has investigated the case is reliable, as such, the prosecution is taken to be proved. According to Mr. Dogra, disbelieving the prosecution case only on the basis of independent witnesses, who have not supported the prosecution case and HC Lal Chand, who has not been examined by the prosecution, the prosecution case cannot be disbelieved. 8. Whereas, on the other hand, Mr. Ravinder Thakur, learned counsel for the accused-respondents has made the submissions that the prosecution cannot stand only on the sole statement of PW.12 ASI Mahesh Kumar, when two independent witnesses have not supported the recovery of charas and search made in the guest house. 9. Two prosecution witnesses, namely, PW.9 Geetu Kataria and PW.10 Ajay Kataria, have not supported the prosecution case and have declared hostile, as such, the prosecution case is said to be doubtful. 10. No criminal offence is made out against the accused-respondents. The substance, which has been tested by the Laboratory vide report Ex.PM to be the charas, was in fact sample drawn from the bulk seized from the accused- respondents. The possibility of the alleged charas 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 'NDPS Act'. 5 11. On scrutiny of the prosecution witnesses, we notice that PW.9 Geetu Kataria ,in her examination-in-chief, has stated that she alongwith her husband Ajay Kataria took on lease the guest house of Man Chand and they were running the same in the year 1997 and that the copy of the entries made by her husband in the guest house record is Ex. PE on two sheets. On 1.7.1997, three boys namely, Neel Chand, Deep Ram and Kalu Ram stayed in room No.2 of the guest house. That on 2.7.1997, police came on the guest house and the police got her signatures on certain papers but no search of the guest house was conducted in her presence nor any charas was recovered from room No.2 in her presence. PW.9 was declared hostile, but in cross-examination by learned PP, she did not support the case of the prosecution and stated firmly that no search of the guest house was conducted in her presence nor any charas was recovered in her presence. 12. PW.10 Ajay Kataria has stated that he alongwith his partner Smt. Geetu Kataria took on lease the guest house of Man Chand and the entries Ex.PE are of his hand, according to which on 1.7.1997, Neel Chand, Deep Ram and Kalu Ram came in the guest house at 4.00 P.M., and stayed there. That on 2.7.1997, the police came in the guest house and his signatures were taken on certain papers when he came back from the market, but no search was conducted in his presence nor any charas was recovered in his presence. He was also declared hostile but in cross-examination by the learned PP, he has categorically stated that no search was conducted in his presence nor any charas 6 was recovered in his presence. 13. We also notice that HC Lal Chand, was a member of patrolling party, and member of the party, raiding the guest house, was not examined by the prosecution to prove that search was conducted and charas was recovered. Whereas, above mentioned independent witnesses PW.9 and PW.10 have categorically stated that neither search was conducted in their presence nor any charas was recovered in their presence, as such, nothing has been proved against these witnesses as to why they have deposed falsely against the prosecution or in favour of the accused-respondents. 14. After going through the statement of PW.11 Gurdial Singh, it reveals that the same is also not inspiring confidence as he has not put any signature on the recovery memo nor he has put any signature on the notice under Section 50 of the 'NDPS Act' given to the accused-respondents. PW.9 and PW.10 have also stated that no notice was given to the accused in their presence. In absence of non supporting of the independent witnesses, the sole testimony of PW.12 ASI Mahesh Kumar cannot be said to be proved the prosecution case. 15. We also take note of a discrepancy that the Rukka Ex.PA was said to be sent on 2.7.1997 at about 5.40 P.M., however, the time 5.40 P.M., has been interpreted from 4.40 P.M. We also find from Ex.PC that prior information was sent on 2.7.1997 at 5.30 P.M., when prior information was sent on 2.7.1997 at 5.30 P.M., then how Rukka could be prepared at 4.40 P.M., and thereby interpreting the same to be sent on 2.7.1997 at 7 5.40 P.M. The three parcels including two small parcels of five grams were having impression 'T', which thereafter, at police station, was re-sealed by putting seal impression 'K'. However, in FSL report Ex.PM, there is only mention of impression 4-K and in FSL report dated 22.9.1997 there is no mention of seal 'T' on the samples. The relevant part of the FSL report dated 22.9.1997 reads as follows:- “Parcel No. of seal & Description impression 1. 4-K One sealed cloth parcel containing exhibit-1. Exhibit-1: Dark green coloured substance wrapped with fine plastic paper (5.18 gms.) 7. Purpose of reference For chemical analysis and report RESULT OF EXAMINATION Exhibit-1 was found to be a sample of charas (cannabis) Note: After the examination the remnants of the exhibits were sealed with the seals of Tox, CFSL, CHD”. 16. It has further been submitted by Mr. Ravinder Thakur 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. Chauhan 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 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: 8 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 beenanalyzed 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 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 analyze 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 9 (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 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 analyzed 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 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 cannabis and are sometimes smoked in cigarettes with 10 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 theCharas, 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 11 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 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. paraaminon 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. 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 witnessbox 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 12 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 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 dried leaves of cannabis plant, possession of which is no offense, cannot be ruled out.” 17. In the light of verdict given by this Court in Panne Lal versus State of H.P., 2010 (2) Crimes 558 (H.P.), 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 present case is doubtful. Relying upon the decision of Panne Lal versus State of H.P. (supra), the benefit of doubt is given to the accused- respondents. 13 18. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Trial Court has carefully analyzed the prosecution