1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 10 of 2003 Decided on October 20, 2011 _______________________________________________________ State of H.P. …Appellant. Versus Dhani Ram …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice D.D. Sud, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Chaman Negi, Advocate. Justice R.B. Misra, J. ( Oral) 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 28.9.2002, passed by the Learned Sessions Judge, Chamba, Sessions Division Chamba, H.P., in Sessions Trial No. Case No. 6 of 2002 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act). 2. The prosecution case is that on 17.10.201 at about 8.15 A.M., on search, the accused/respondent was found to be in possession of 2 Kgs. 150 grms. of charas. Two samples were taken and put into sealed parcels and the samples were sent to chemical examination and after receipt of chemical examination report and 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 10 prosecution witnesses. Whereas, the 2 accused/respondent through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. PW-2 Man Singh, Ex-Chairman of Panchayat Smiti, Tissa Block and PW-3 Budhia Ram, who is running cigarette- Beedi shop at Kalhel were associated with the investigation as independent witnesses, however, they did not support the prosecution case. Whereas official witnesses in their endavour has supported the prosecution case, could not bring any fruit in support of the prosecution case. 5. Inter alia on the analysis and grounds made by learned Sessions Judge, Chamba Division at Chamba one important aspect which shall vitiate the prosecution case is that the 'NCB Form'/Ex. PL appears to have not been prepared on the spot. No facsimile seal had been put regarding seal and re- seal of samples recovered on the spot. On microscopic examination, cystholithic hair were found to be present in the contraband good recovered and beams alkaline test positive. On quantitative test, resin of 25.41% to 33.04% was present and on that basis the contraband goods were said to be charas. Whereas as per definition, the contraband good recovered cannot be said to be charas as we have already observed in our earlier judgment dated 19.9.2011 State of H.P. Vs. Subhash Sharma @ Bhasi passed in Cr. Appeal No. 391 of 2002. The relevant extract of the judgment of Subash Sharma (supra) is extracted as below:- “15...... The cystholithic hair is a fiber which could also be found in flowering tops of the cannabis plant, but the definition of charas does not include other parts like flowering 3 and fruiting taps, 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.” 6. In view of the aforesaid analysis, it becomes clear that the contraband good recovered in present case cannot be said to be charas, as such the chemical examination report cannot be relied upon. In our respectful consideration, in the facts and circumstances, the prosecution could not be said to have been proved its case beyond reasonable doubt, as such the appeal sans merit and is accordingly dismissed. 7. The bail bonds furnished by the accused/ respondent are hereby discharged. (R.B. Misra) Judge October 20, 2011 (D.D. Sud) (krs) Judge