IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.88 of 2002. Decided on: September 20, 2011. _______________________________________________________ State of H.P. ……..Appellant. Versus Steven Max @ Sonaly. ……..Respondent. Coram Hon’ble Mr. Justice R.B.Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. R.K.Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl.Advocate General. For the respondent : Mr. Diwan Singh, Advocate as Amicus-Curaie. ____________________________________________________ SURINDER SINGH, J. (oral): Respondent hereinafter referred to as ‘the accused’ is a foreign national. He was acquitted by the learned trial Court in Sessions Trial No.11 of 2001, on 15.10.2001, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, allegedly for keeping in possession 300 grams of Charas, hence the present appeal by the State. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Though the appeal was admitted in the year 2002, but on examination of record, we find that after the acquittal, it was not possible to procure the presence of the accused despite coercive processes issued against him. In our opinion, it would be unnecessary to linger on the matter, we hereby appoint Shri Diwan Singh, Advocate as Amicus-curiae to assist us to arrive at just decision of the case. Paper book has been supplied to the Amicus-curiae. He is ready with the arguments. 3. Heard and gone through the evidence on record. 4. In short the prosecution case can be summed thus. On 9th April, 2001 at about 11.20 p.m., the accused was traveling in HPTDC bus No.HP-01- 1846, which was coming from Manali and was bound for Delhi. At the place known as ‘Bamta’ on National Highway No.21, the bus was checked by the police. At that time, the accused was alleged to have been carrying one nylon bag of black and red colour on his lap. On its search, police recovered 300 grams of Charas concealed in the personal effects of the accused. PW7 ASI Krishan Chand separated two - 3 - samples of 25 grams each in the presence of PW1 Dhani Ram, driver of the bus and PW2 Mohinder Lal, a bus passenger. It was sealed with seal impression “A” and the remaining bulk was also sealed with the same seal. The sample of seal was taken separately on a piece of cloth. The case property was taken into possession vide seizure memo Ext.PB. The sample parcels were marked as A1 and A2. Seal after its use was handed over to PW6 Balbir Pandey. 5. Ruka Ext.PG was sent through PW3 Constable Nand Lal for the registration of the case. Personal effects which were found in the bag, were taken into possession vide memo Ext.PC, which were subsequently released to the accused. Information was sent to PW8 Inspector/SHO Siri Ram through wireless. He reached the spot. PW7 aforesaid handed over the sealed parcels and also the custody of the accused to him. 6. PW8 Inspector/SHO aforesaid resealed the case property with seal impression “T”. He retained the sample of seal on a piece of cloth. He prepared the site plans Ext.PD and Ext.PM with respect to the alleged place of recovery and recorded the - 4 - statements of the witnesses. He arrested the accused and grounds of arrest were informed to the accused vide memo Ext.PN. He sent special report to the officer superior within the stipulated time. He also took into possession the bus-ticket Ext.PP alongwith passport of the accused. The Embassy was informed. On reaching Police Station, he deposited the case property in the Malkhana with PW4 MHC Ram Lal. 7. On 11.4.2001, one of the sample parcels was sent for chemical examination to CTL, Kandaghat alongwith NCB form in duplicate vide RC No.10/2001. After its delivery in the CTL, he obtained receipt and handed over the same to him on 13.4.2001. The sample was examined. It was opined to have contained 38.7% Weight-in-Weight of resin. In the opinion of the Chemical Examiner the content of exhibit was that of Charas. 8. After completing the investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. - 5 - 9. To prove its case, the prosecution examined its witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. No evidence in defence was led. 10. At the end of trial, accused was acquitted on the ground that the independent witnesses have turned hostile to the prosecution and the statements of the official witnesses are contradictory. 11. We have reappraised the evidence on record. 12. True it is that the independent witnesses, i.e., PWs 1 and 2 and also PW6 to whom the seal was handed over, have turned hostile, but even on the examination of the official witnesses whose testimonies are to be scrutinized like other witnesses could not prove the prosecution case. We find that link evidence in the instant case is missing and the report of the Chemical Analyst was found short of the requisite standard to hold that the sample analyzed fell within the definition of Charas as defined under the Act. - 6 - 13. PW7 ASI Krishan Chand though stated to have separated two sample parcels from the recovered stuff on the spot and the accused alongwith the case property was produced before the SHO who resealed it with seal impression “T” and stated to have deposited in the Malkhana, but PW4 MHC Ram Lal did not say that the case property which was received by him for its deposit bore the seal impressions of “A” and “T”. According to him, he had received the sealed parcels with sample seals having the impressions of seal “A” and “E”. He further stated that on 11.4.2001 one of the sample parcels and the seal impressions were sent to Chemical Examiner, Kandaghat through PW3 Constable Nand Lal, but PW3 aforesaid did not make the mention thereof. Neither the abstract of the Malkhana register nor the copy of the Road Certificate has been placed and proved on record to show as to what were the seals mentioned in the aforesaid documents with respect to the sample parcel which were taken by him to the Laboratory. 14. Further, on the scrutiny of the evidence, we could not lay our hands on the statements of any of - 7 - the witnesses to conclude as to who had prepared the NCB forms which were otherwise required to be prepared on the spot at the time of the recovery of the alleged contraband. The perusal of the NCB form, which contains the report of analysis on its reverse side contains a typed material against each column, cannot be said to have been prepared on the spot. The facsimiles of the seals used on the spot and at the time of resealing were also not affixed on the NCB forms nor there is any evidence that the sample of seals were also sent alongwith the sample parcels for its comparison. Although there is only a lithographic impression certifying that seals of samples tallied with the specimen seals sent separately, but in absence of above evidence, said certificate looses its sanctity. Thus, in our opinion, the link evidence in the instant case, is not complete. 15. The above position apart, we also find from the report of analysis (Ext.PQ) that in the opinion of the Examiner, the contents of exhibit examined by him were that of Charas which contained resin of 38.7% Weight-in-Weight and it also contained cystholithic hair. - 8 - 16. Charas as defined in Section 2 (iii) (a) of the Act, is one of the three forms of cannabis (hemp), which reads as follows: “(a) charas, that 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.” 17. According to the definition of “Charas”, as given in Section 2(iii)(a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant crushed green leaves of such a plant pressed into a mass would look similar to Charas. 18. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja. - 9 - 19. When Charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act. 20. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in Sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No.S.O. 527(E), dated 16th July, 1996, under clauses vii (a) and xxiii(a) of Section 2 of the Act. For Charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No.23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55. - 10 - 21. From the report of the Analyst Ext.PQ, as stated above, it is though clear that the stuff was opined to be Charas only on account of resin contents as well as presence of cystholithic hair, whereas the definition of the Charas makes it clear that it is a 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. 22. As regards the presence of cystholithic hair, it could be the fiber of cannabis plant, is 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, but no percentage of tetrahydrocannabinol has been mentioned. The possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, 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 - 11 - definition of ganja, unless accompany the flowering and fruiting tops of the plant. 23. In view of above position, we are of the opinion that the report of the Analyst is falling short of the requisite standard with respect to the definition of Charas as defined under the Act. Therefore, firstly the sample analysed could not be connected with the recovered stuff and secondly the examination report fails to satisfy the definition of Charas. 24. Therefore, for the foregoing reasons, we do not find any ground to convert the acquittal into conviction. As such, the appeal sans merit and is accordingly dismissed. 25. Before parting with the judgment we appreciate the assistance rendered by Shri Diwan Singh, Amicus-Curiae appointed by us to assist the Court. 26. Send down the records. ( R.B.Misra ) Judge. September 20, 2011 (Surinder Singh), (rc) Judge.