IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.M. Nos. 611 & 630 of 2008. Date of decision: July 7, 2008. 1. Cr.M.P.(M) No. 611 of 2008. Lekh Raj ….. Petitioner. Vs. State of H.P. …. Respondent. 2. Cr.M.P.(M) No. 630 of 2008. Jagat Pal ….. Petitioner Vs. State of H.P. ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Ajay Kochhar, Advocate for the petitioner in Cr.M.P.(M) No. 611 of 2008 and Mr. T.S. Chauhan, Advocate, for the petitioner in Cr.M.P.(M) No. 630 of 2008. For the Respondent : Mr. Ansul Bansal, Addl. Advocate General. Kuldip Singh, Judge (Oral): This judgement shall dispose of Cr.M.P.(M) No. 611 of 2008 and Cr.M.P.(M) No. 630 of 2008, since common question of law is involved in both the petitions. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. In Cr.M.P (M) No.611 of 2008, the petitioner was arrested on 23.12.2007, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). The prosecution has alleged that charas weighing 1.600 Kgs. was recovered from the petitioner. As per report of the Chemical Examiner, the sample on microscopic examination indicated the presence of cystolithic hair in the sample. Charas is resinous mass and resin is an ingredient of Charas, which on testing was found present. Resin is found to be 22.30% W/W. The Chemical Examiner ultimately gave opinion “entire mass of Ex. P/1 is a sample of charas”. The petitioner had earlier filed bail application No. 34/08 before the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, which was dismissed on 17.3.2008. Thereafter another bail application No. 71-A/22 of 2008 was filed by the petitioner before the learned Sessions Judge, Kinnaur Sessions Division, which was also dismissed on 13.5.2008. 3. The petitioner has filed the present bail application, under Section ,439 Cr.P.C. for releasing him on bail in FIR No. 115/07, registered at Police Station, Anni, District Kullu on 23.12.2007, under Section 20 of the Act. On behalf of the petitioner it has been submitted that challan has been presented in the court. As per Chemical Examiner report, the sample on analysis was found to contain 22.30% W/W resin. It has been submitted that as per prosecution 1.600 Kgs. contraband was allegedly recovered from the petitioner. The learned counsel for the petitioner has submitted that even if prosecution case is taken as it is, still in view of resin content …3… in the contraband as per Chemical Examiner report, it can be said that actual charas in the contraband was 356 grams (22.30% of 1.600 Kgs.), which is less than the commercial quantity. He has submitted that the opinion of the Chemical Examiner “the entire mass of Ex. P/1 is a sample of charas” at this stage cannot be accepted. He has submitted that as per prosecution what was recovered from the petitioner was charas and the Chemical Examiner has found resin content in the sample 22.30% W/W. The learned counsel for the petitioner has submitted that in view of resin content in the sample, the bar of Section 37 of the Act is not applicable and the petitioner is entitled to bail. The learned counsel has relied on E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau 2008 Crl. L.J. 2250, Dharam Pal vs. State of H.P. Latest HLJ 2007 (HP) 827, Daulat Ram Vs. State of H.P Cr. Appeal No. 604 of 2003 decided on 29.6.2007 by a Division Bench of this Court and Ved Ram Vs. State of H.P. 2007 (1) SLC 152. The learned counsel for the petitioner has submitted that trial of the case will take some time and no purpose will be served by keeping the petitioner in jail for indefinite period. The petitioner is ready to furnish bail bonds in accordance with the directions of this court. 4. In Cr.M.P.(M) No. 630 of 2008, the petitioner was arrested on 15.11.2007 in FIR No. 320 of 2008, registered at Police Station, Sadar Bilaspur, under Section 20 of the Act on the allegations that charas total weighing 2.700 Kgs. was recovered from the petitioner from two bags and therefore, two samples were sent for analysis. The Chemical Examiner in two samples found resin …4… 27.79 % W/W and 27.62 % W/W, but the Chemical Examiner gave opinion that “the exhibit mark A/1 and B/1 are the samples of charas”. The learned counsel for the petitioner has submitted that in view of the Chemical Examiner report, the whole of the contraband allegedly recovered from the petitioner cannot be termed as charas, at the most it can be said that 747.50 grams which is the mean of 27.79% and 27.62% of 2.700 Kgs. contraband was allegedly recovered from the petitioner keeping in view the percentage of resin found in the samples by the Chemical Examiner. The petitioner earlier filed Cr. B.A. No. 129 of 2008 which was dismissed by learned Sessions Judge, Bilaspur on 16.6.2008. Mr. T.S. Chauhan, learned counsel for the petitioner has adopted same line of reasoning for releasing the petitioner on bail, as projected by Mr. Ajay Kochhar, Advocate in Cr.M.P.(M) No. 611 of 2008. 5. The respondent has filed status report in Cr.M.P.(M) No. 611 of 2008. Heard and perused the record. In FIR No. 115/07, challan has been filed in the court on 28.3.2008. 6. The learned Additional Advocate General has stated that in Cr.M.P.(M) No. 611 of 2008, 1.600 Kgs. charas was recovered and in Cr.M.P.(M) No. 630 of 2008, 2.700 Kgs. charas was recovered. In Cr.M.P.(M) No. 611 of 2008, the Chemical Examiner has found resin content 22.30% W/W in the sample and in Cr.M.P.(M) No. 630 of 2008, the Chemical Examiner has found resin content 27.79% W/W and 27.62% W/W. He has submitted that the Chemical Examiner has given specific report in Cr.M.P.(M) No. 611 of 2008 that entire mass of Ext. P/1 is a sample of charas, similarly in Cr.M.P.(M) No. 630 of 2008 the Chemical Examiner has given the opinion that exhibit mark …5… A/1 and B/1 are the samples of charas. He has submitted that in view of reports of Chemical Examiner in two cases, at this stage, it cannot be said that only some contents of the samples were charas and rest of the contents of samples were not charas. 7. Charas has been defined in sub-clause (a) of Clause (iii) of Section 2 of the Act, which reads as follows:- “(iii) Cannabis (hemp) means— (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; (b) …….. (c) ………” 8. In Dharam Pal vs. State of H.P. Latest HLJ 2007 (HP) 827, 1.600 Kgs. charas was recovered but the Chemical Analyst found that the stuff contained only 28.92% charas. The appellants in that case were tried for possessing charas. On those facts a Division Bench of this court has held that charas as per above reproduced definition means 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. From the above definition, it is clear that it is only resin content of the cannabis plant which is charas. In Dharam Pal’s case (supra), it has been further held that assuming the charge against the appellants were for possessing mixture form of cannabis, in that situation also, the appellants could not have been held guilty of …6… possessing `commercial quantity’ of narcotic drug or psychotropic substance. The stuff recovered from the appellants is only one psychotropic substance i.e. `charas’ (resin) in it and about the rest of the stuff there is no report and therefore, there is no escape from assumption that the same is a neutral material. Now if it has only one psychotropic substance, i.e. `charas’ (resin) the nature of the quantity is to be determined by reference to the limits of `small quantity’ and `commercial quantity’ prescribed for charas, which means resin of cannabis plant. 9. In E. Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau 2008 Crl. L.J. 2250, the facts were that 4.07 Kgs. heroin was recovered. The purity of heroin was 1.4% and 1.6% respectively in two samples. On those facts, the Hon’ble Supreme Court has held that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance (s) for the purpose of imposition of punishment, it is the content of narcotic drug or psychotropic substance which shall be taken into consideration. The narcotic drug which was found in possession of the appellant as per Analyst Report is 60 grams, which is more than five grams i.e. the small quantity but less than 250 grams i.e. the commercial quantity. The quantity of 60 grams is lesser than the commercial quantity but greater than the small quantity and thus the appellant would be punishable under Section 21(b) of the NDPS Act. 10. In the present case also, the Chemical Examiner in both the cases has given the resin content in the contraband and has not identified the rest of the contents of the contraband. In these …7… circumstances, prima-facie, it is to be taken that in Cr.M.P.(M) No. 611 of 2008 the resin or charas content was 22.30% W/W and in Cr.M.P.(M) No. 630 of 2008 the resin or charas content was 27.79W% W/W and 27.62% W/W. The learned Additional Advocate General has submitted that the Chemical Examiner in both the cases has given opinion that entire mass is sample of charas and therefore, it cannot be said at this stage that only some portion of the contraband is charas and rest of the contraband is not charas. In Daulat Ram’s case (supra), a Division Bench of this Court after noticing Amarsingh Ramjibhai Barot vs. State of Gujarat, 2005 SCC (Cri) 1704 has held that where the report of the Forensic Science Laboratory does not say that the stuff was coagulated juice of the opium poppy or it was a mixture with or without any neutral material of coagulated juice of opium poppy but simply expresses the opinion that the stuff is opium, as defined in the Narcotic Drugs and Psychotropic Substances Act, such a report is not acceptable and not binding on the court. In the present case in both the reports the Chemical Examiner has specifically given the resin content and thereafter has opined that the entire mass is a sample of charas. The implication of such reports will be seen during the trial. 11. On the basis of resin content in both the reports of Chemical Examiner, the quantity of charas comes more than small quantity and less than the commercial quantity in both the cases. The bar of Section 37 of the Act is not applicable in such a situation for releasing the petitioners on bail as per Ved Ram’s case (supra). The learned Additional Advocate General has also opposed the bail …8… applications in general by submitting that in case the petitioners are released on bail they will tamper the prosecution evidence. The petitioners can commit other offences. The petitioners will terrorise the prosecution witnesses. The learned Additional Advocate General has opposed the bail application generally without pointing out specific material in support of the opposition. In any case, in such a situation law will take its own course if the petitioners will venture to violate the law. 12. The result of the above discussion, the petitioners in both the petitions have made out a case for bail under Section 439 Cr.P.C. Hence, both the petitions are allowed. In Cr.M.P.(M) No. 611 of 2008, the petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs.40,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge Kinnaur Division at Rampur, and in Cr.M.P.(M) No. 630 of 2008, the petitioner is order to be released on bail on his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge, Bilaspur, H.P. 13. Any observation made herein above shall not be construed as an expression of opinion on the merits of the case. 14. Dasti copy on usual terms. July 7, 2008. ( Kuldip Singh ) (Hem) Judge.