IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 623 of 2001 Date of Decision 17th October, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Bal Krishan son of Dabe Ram, Caste Harijan, r/o Shangna Tehsil and Distt. Kullu HP ….Respondent. Appeal under Section 378 of the Code of Criminal Procedure. ________________________________________________________ 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 Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General For the Respondent: Mr. B.C. Verma, Advocate. __________________________________________________________________ Dev Darshan Sud, J.(oral) The State has challenged the acquittal of the respondent for offences under Sections 20 of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the Act). 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The case of the prosecution is that on 20.1.2001 at around 8.30 PM, the accused-respondent was found in possession of 1 Kg. 575 grams charas at Shangna bridge. The prosecution, in order to prove its case, relied upon the testimony of Shyam Lal PW7, C. Raj Kumar PW2 and Sher Singh. These witnesses stated that they had set up a naka in a excise case at Shangna bridge. At around 6.30 PM the accused was seen coming from Shangna side and on seeing the police party, he stopped. The police party became suspicious and apprehended him on suspicion when he disclosed his name as Shyam Lal. He was searched after he had given his consent vide Ext.PW2/A and opted to be searched by the police. He was carrying a bag which was searched and found containing two polythene bags of charas each weighing 1 Kg. 575 grams. Three samples of 25 grams each were separated, packed and sealed separately with seal impression ‘M’. NCB Form was filled in and charas alongwith sample packets were sent for the chemical examination and contents of the sample were found to be that of charas. The respondent was accordingly charged for offences under Sections 20 of the Act. 3. The learned trial Court basically relied upon the provision of Section 50 of the Act to hold that there was no compliance of this provision and therefore, the accused was entitled to acquittal. Looking to the facts of the case, more especially, the recovery of bag, we find that provisions of Section 50 of the Act are not attracted. However, turning to the report of Chemical Examiner Ext.PW6/A we find that only two tests have been conducted namely (a) microscopic examination which says 3 that cystolithic hair is present and (b) beams alkaline test is positive and resin is 34.78%. The Chemical Examiner opines that the exhibit contains contents of charas. At this juncture, we also note that the NCB form also contains some alterations/over writings where the figure ‘4’ has been altered as ‘7’ and some additions have been made on the word ‘seal’. We may not enter into this controversy. 4. In Sunil vs. State of Himachal Pradesh, 2010 (1) Shim. L.C. 192 in which the Division Bench of this Court holds:- “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 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, 4 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) Reaffirming this principle in Cr. Appeal No. 391 of 2002 titled State of H.P. vs. Subhash Sharma @ Bhasi the another Division Bench of this Court, in which one of us (R.B. Misra, J.) was a member holds: “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 o 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 (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 5 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.” Applying the principles of these two judgments, we find that the test has not been conducted in accordance with law. Therefore, we find no merit in this appeal. No other precedent has been brought to our notice contrary to what has been stated by this Court in Sunil Kumar’s case (supra). This appeal is, therefore, dismissed. Bail bonds furnished by the respondent stand discharged. (R.B. Misra) Judge October 17, 2011 (Dev Darshan Sud), ms Judge