1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 60 of 2008 Date of decision: 12th October, 2011 1. Dine Ram, son of Kuru Ram, Caste Dalit, r/o village Mataura, P.O. Jari, Tehsil and Distt Kullu Himachal Pradesh. 2. Ses Ram, son of Jeet Ram, Caste Dalit, r/o Darudhar, Ward No. 1, Banjar, District Kullu, Himachal Pradesh …Appellants Versus State of Himachal Pradesh, through Secretary Home to the Government of Himachal Pradesh, Shimla Himachal Pradesh ….Respondent Appeal under Section 36-B of the Narcotics Drugs and Psychotropic Substances Act, 1985 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 Appellants: Mr. Anoop Chitkara, Advocate For the Respondent: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Dev Darshan Sud,J.(oral) The appellants have challenged their conviction under Section 20 of the Narcotics Drugs and Psychotropic Substances Act 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 (hereinafter referred to as the NDPS Act). A number of grounds have been urged by the learned counsel appearing for the appellants in support of the appeal. 2. The case of the prosecution in brief is that both the accused who were apprehended by the police were found in possession of a rucksack and a sack containing 14 packets of contraband and a white sack containing 38 packets of charas wrapped in polythene bag. The total weight according to the prosecution was 3 kg 500 grams. The prosecution story in brief is that Dina Ram and Ses Ram were apprehended at the Naka at Bradha road. When they approached the Naka party they were found to be carrying a rucksack and sack respectively. On seeing the police, they threw the rucksack and sack on the ground and ran away, but they were chased and apprehended and disclosed their names as Dina Ram son of Kuru Ram, and Ses Ram son of Jit Ram. The rucksack was brought to the road, which contained 3 Kg. of the contraband wrapped in 14 packets of contraband and the sack contained 38 packets of 3 charas weighing 3 Kg. 500 grams. They were apprehended and proceeded in accordance with law. The case property was taken into possession and sent for chemical analysis. We do not find it necessary to go to the other points as this case is already covered by the decision of this Court. The Chemical Analyst reports Ext.PW2/A and Ext.PB show that tests have been conducted namely (a) microscopic examination which says that cystolithic hair is present, (b) beams alkaline test is positive and resin is 33.78% and the Chemical Analyst report Ext.PW2/B and Ext.PA shows that (a) microscopic examination which says that cystolithic hair is present; (b) beams alkaline test is positive and resin is 34.25%. The Chemical Examine opines that the exhibit contains the contents of charas. 3. This Court in Sunil vs. State of Himachal Pradesh 2010 (1) Shim.L.C. 192 holds that “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 witness-box also, the 4 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 Section 2 (iii) of the Act, or anything else, like Bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol 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 percent. 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 tried 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 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 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 tried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.” (at pp. 199-200) 5 In view of the law laid down, we find that the prosecution has not been able to prove its case beyond reasonable doubt. 4. One another point which has been urged by the learned counsel appearing for the appellant is that it has not been proved on record as to the quantity of contraband being carried by each of them. He submits that the prosecution case is that both were seen coming from the forest on foot path in the dark night. When there was some distance away that is from the police party about 15/17 metres both of them threw away their respective bags which were being carried by them. They were chased and apprehended. According to the police, one bag each was being carried by them. The identity of the bag(s) attributable to each of the accused has not been established. He submits that at best each of them can be convicted only for what was in their possession. 5. PW2 Inspector Ram Karan who was Investigating Officer admits in his evidence that the place where the checking etc. was 6 being carried out was surrounded by forest and it was around 6.30 PM, he saw these two persons coming from the upper side of forest. Constable Netar Singh and H.C. Harbans Kumar switched on the lights and found the accused coming on the foot path carrying a rucksack and sack. On seeing the police party, both of them threw whatever they had and fled from the spot. According to this witness, accused Ses Ram was carrying a rucksack and Dine Ram had a sack in his hand. The fact that at that time, it had become dark is admitted by PW2 Sub Inspector Ram Karan. He and PW1 Constable Netar Singh admitted that it starts getting dark at around 5.30 PM in February. Learned counsel again adverted to the evidence of PW2 Inspector Ram Karan to urge that in his cross examination it has not been mentioned that search lights were used and this fact does not find mentioned either in Ruka Ext.PW2/C or in the special report Ext.PW2/H. To fortify this argument, he refers to the evidence of PW1 Constable Netar Singh who says that he could only say that they were two persons, but he could not identify the 7 accused persons clearly. When they reached at a distance of about 15 metres from the raiding party, he and Harbans Kumar switched on the search lights and found Dine Ram carrying a sack (Boru) and Ses Ram carrying a rucksack. 6. Learned counsel appearing for the appellants submits that PW2 S.I. Ram Karan states that rucksack Ext.P-3 of Ses Ram was checked in which 14 packets of different sizes of contraband (charas) were found. The same was weighed and found to be 3 Kgs. Two samples of 25 grams each were taken from the recovered charas and sealed in two different parcels. He then proceeds in his testimony that the sack of Dine Ram was taken and it was found to be contained 38 packets which were wrapped and found 3.500 Kgs. Two samples of 25 grams each were also drawn. In his cross examination, he states that the charas in the polythene bags was in flattened condition, which was wrapped. He says that two samples from one packet of charas were taken which is Ext.P-9 in case of Ses Ram and did not try to take a representative sample from all packets. Charas 8 Ext.P-8 was also consisted 38 packets of Charas, out of which 25 packets were in flattened condition and two packets consisted of five broken pieces of charas. He drew two samples of 25 grams each from packet Ext.P-10. He did not mention anything about this fact about taking the samples from parcels Ext.P9 and Ext.P10 in the investigation documents. He says that he did not consider it necessary to take representative samples by taking charas from each of the packets Ext.P3 and Ext.P7. The rucksack and sack Ext.P3 and Ext.P7 were lying at a distance of about 25-30 metres from the road. Constable Netar Singh PW1 admits that there were 15 packets of Charas in Ext.P4 and he could not say from which packet the sample was taken. So far as Dine Ram was concerned, there were 35 packets and he could not say from which packet the sample was drawn. 7. The point which the learned counsel makes is that sample being not representative of the entire seizure which consisted of different packets and as admitted as urged by the prosecution, no conviction can follow 9 because what has been sent to the Forensic Science Laboratory is 24.0891 grams of purported seizure from Dine Ram (Ext.PA) and 24.0512 grams of purported seizure from Ses Ram (Ext.PB). Learned counsel submits that these persons can at best be held to be in possession of this quantity of charas if at all and nothing else. He relies upon the decision of the Supreme Court in Mr. Gaunter Edwin Kirchar vs.State of Goa (1993)2SCC 145. It is undisputed that in criminal law, the precedent which is applicable to the established facts, cannot be generalized to the extent to cover all similar situations. However, we do find force in the submission of the learned counsel. We find from the evidence that the use of search lights etc. has not been mentioned by the witnesses as noticed by us above and that no attempt has been made to draw a representative sample, which would entitle the appellants to acquittal. Without adverting to this point further, we hold that since the sample seized has not been proved to be that of charas in accordance with law as noticed by us 10 supra, this appeal is accepted and both the accused are acquitted for offences. They shall be released forthwith from prison if not required in any other case. (R.B. Misra) Judge (Dev Darshan Sud) Judge October 12, 2011(ms)