IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 391/2002 Date of decision: 19.9. 2011 State of H.P. …..Appellant Versus Subhash Sharma @ Bhasi ……Respondent Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondent: Mr. Surinder Verma, Advocate. Surinder Singh, J. (Oral) Acquittal of the respondent recorded by the learned trial Court has been challenged by the State in the present appeal for offence publishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ for allegedly keeping in possession 300 grams of charas from the Dickey of his Scooter. 2. Heard and gone through the record of the case. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 3. In short, prosecution story can be stated thus. On 7.9.2001, police party headed by PW13 ASI Satish Kumar was on traffic checking out side Police Post Jahu on the Highway. In the meantime respondent came driving his Scooter bearing Registration No. HP-31-2085. At that time it was around 6.25 p.m. He was stopped and PW13 ASI Satish Kumar started checking his documents and also asked about his antecedents. He disclosed his identify. At that time, PW1 Surat Singh and PW2 Surinder Kumar both were having Scooter, were present and police had been checking their document also. Thus in the presence of PW1 and PW2 aforesaid, respondent was asked to open the dickey of his scooter and police recovered a polythene bag containing 300 grams of charas in the presence of the aforesaid alleged eye witnesses. The charas was in the shape of billets. PW13 aforesaid separated two samples of 25 grams each from the recovery quantity and sealed it with seal impression ‘H’. Remaining bulk was also sealed with the same seal. Seal after its use was handed over to PW1 Surat Singh. 4. Case property was taken into possession vide memo Ext. PW1/A in the presence of the - 3 - witnesses aforesaid. Sample of seal Ext. PW13/A was also obtained separately on a piece of cloth. 5. NCB forms in triplicate were also filled in. Ruka Ext. PW4/A was sent for registration of the case which culminated into FIR Ext. PW12/A. 6. Case property was produced before PW11 Inspector SHO Hukam Chand. He re-sealed the case property with seal impression ‘H’ and also took sample thereof on a piece of cloth. Seal after its use was kept by him in his custody and handed over the case property to PW7 H.C. Desh Raj which were entered in the Malkhana Register. 7. On 13.8.2001 one of the samples parcel was sent through PW6 constable Parkash Chand for its examination to CTL Kandaghat. He after its deposit obtained receipt and handed it over to Mohinder Chand who was officiating MHC at that time. On analysis in the Laboratory, sample so sent tested positive for charas. Report is Ext. PW11/A. Police recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure and site plan of the place of alleged recovery was also prepared. 8. After completing investigation, case was presented in the court for the trial of the respondent. - 4 - At the end of the trial, he was acquitted on the grounds that the independent witnesses of the prosecution turned hostile and there are material contradictions in the statements of the official witnesses. Further that NCB forms as well as sample of seals were not proved and linked with the recovered stuff and the report also could not be connected with the recovered stuff because facsimile of the seal did not tally with the seals used. 9. It is of a common knowledge that in the cases of narcotics, independent witnesses seldom supports prosecution but turn hostile to the prosecution for various reasons but it is not correct to say that their testimonies are required to be altogether ignored and rejected straightway. It can be used by the prosecution as well as by the defence to the extent it helps them. There is no rule of law that testimony of the official witnesses cannot be accepted if it inspires confidence. It is also equally settled that in such type of cases, link evidence is also required to be established to connect the accused with the recovered contraband, failing which, a substantial doubt is created in the probity of the prosecution case and the case stands not proved. - 5 - 10. With the aforesaid legal proposition in mind, we have reappraised the evidence on record. 11. Reverting to the facts of this case, we find that no doubt, police party was on traffic checking and PW1 and PW 2 aforesaid happened to be present there as they were stopped by the police for checking documents of their respective vehicles. But according to them they signed all these documents, including the recovery memo in the police Station. 12. PW13 Investigating Officer although stated about the prosecution case verbatim, yet if examined in the light of the other evidence his testimony lacks to supporting the charge framed against the respondent. According to him, he produced the case property on the same day, i.e., on 7.8.2001 before PW11 Inspector SHO Hukam Chand for the purpose of re-sealing, after affixing his own seal impression of English Letter ‘H’. The case property was deposited with PW7 MHC Desh Raj. Hukam Chand aforesaid did not say that PW Desh Raj at the time of re-sealing was also present whereas PW7 H.C. Desh Raj stated that during re- sealing he was present but he nowhere stated that the case property was deposited by Inspector SHO - 6 - in the Malkhana. Rather he stated that on 7.8.2001, it was ASI Satish Kumar Incharge of Police Post who had deposited the case property with him. Even he did not make any reference about re-sealing or putting the seal ‘H’ by SHO on the case property. Further he also did not state about depositing of the NCB forms along with sample of seals used in the Malkhana. Even abstract of the Malkhana register has not been produced and proved in order to lend strength to his version. Pertinently on 9.8.2001 he is stated to have proceeded on leave and handed over the charge to PW8 HC Mohinder Chand. On 13.8.2001 Mohinder Chand sent one sealed sample parcel sealed with seal impression ‘H’ through constable PW6 Parkash Chand to the Laboratory to which he is stated to have been deposited on 14.8.2001. He did not say that it was also bearing seal impression ‘S’. PW8 aforesaid further stated that the receipt of the deposit was handed over to him on 16.8.2001. Even that receipt was not produced during the trial of this case. Further, it is not understood when constable aforesaid had deposited the sample parcel on 14.8.2001 in the Laboratory as to why the receipt was not handed over back by him immediately on the next day. On - 7 - 2.9.2001 MHC Desh Raj was Incharge of MHC but PW8 MHC Mohinder Chand stated having handed over two remaining parcels sealed with seal impression ‘H’. Even he does not make any reference of seal ‘S’ at all. Further, PW7 HC Desh Raj categorically stated in his cross-examination that NCB forms were not deposited with him in the Malkhana nor it was deposited with H.C. Mohinder Singh. 13. As against the aforesaid evidence if we examine the analysis report Ext. PW11/A it only speaks about the receipt of the sample parcel on 14.8.2001 in the Laboratory through constable. The lithographic impression of the certificate that seal/seals of the sample tallied with the specimen seals whereas PW6 constable Parkash did not say that he was handed over the sample of seal along with sample parcel to deposit in the Laboratory. Further the road certificate No. 41/11 against which the case property was taken to CTL Kandaghat would have been the best evidence had it been produced and proved on record to establish what were the articles which were taken by the said constable to the Laboratory along with sample for its deposit but that Road certificate did not find the - 8 - light of the day. Even NCB forms one of which is Ext. PW11/A does not bear facsimiles of the seal used either by the Investigating Officer at the spot nor that of the Station House Officer used for re-sealing in absence of which, lithograph certificate, as referred to above, appears to have been affixed in a mechanical manner. Thus it is of no consequence. Further, NCB forms so sent do not make any reference about the seal impression ‘H’. 14. Thus, we find that the report of the analysis could not be linked with the recovered stuff in the instant case. The prosecution has also failed to prove the link which caused a dent in the prosecution case. 15. Also we find that the report of the analysis Ext. PW11/A though mentions about the presence of cystholithic hair and beams alkaline test positive but it does not say that the resin content of 28.04 was of a cannabis plant. Based upon the above, it is opined that the exhibit contained the content of charas. 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 and fruiting tops, leaves or stem. The definition of charas is given in Section 2 - 9 - (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 - 10 - recovered stuff and secondly report of the analysis is falling short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considered opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed. 17. Respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. 18. Send down the records. (R.B Misra), Judge September 19, 2011 (Surinder Singh), (cm) Judge.