IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.:313 of 2003. Decided on: 23.12.2011. _____________________________________________ State of Himachal Pradesh. … Appellant. Versus Sher Singh son of Shri Parma Nand resident of village Patan, Phati Saraj, Kothi Fatehpur, Tehsil and District Kullu, H.P. … Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R. K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra Additional Advocate General. For the Respondent : Mr. Vikrant Chandel, Advocate vice Mr. J.R. Poswal, Advocate. Justice R.B. Misra, Judge (Oral): The present criminal appeal has come for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure in reference to impugned judgment 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - dated 3.4.2003 passed by the learned Sessions Judge, Kullu in reference to Sessions Trial No.71/02 in reference to offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act” for brevity), whereby the accused have been acquitted from the said offence. 2. The case of the prosecution in brief is that on 23.5.2002 at 5.00 p.m. accused was apprehended by the police party headed by H.C. Sandeep Kumar and recovered a bag, which the accused was carrying. On search of bag charas weighing 1.700 Kgs. was recovered. Out of the recovered charas two samples of 25 grams each were separated which were packed and sealed with seal ‘H’. The remaining bulk and the bag was also separately sealed with seal ‘H’. After completion of investigation the case was presented in the Court and the accused was charged under the aforesaid Section of the Act. 3. In order to prove its case, the prosecution has examined as many as 7 witnesses in all and after closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. The learned Sessions, Kullu on the basis of material placed on record including other grounds has arrived at the conclusion that the prosecution has failed to prove the case against the accused. Besides above the microscopic - 3 - examination conducted by the Chemical Examiner vide Ex.PW- 5/E indicates that he found presence of cystolithic hair and beams alkaline test positive. The resin contents upto 21.41% were indicated in the report. On analysis, the Chemical Examiner opined that the exhibit contains the contents of charas. In a similar case, this Court vide its judgment dated 19th September 2011 in State of H.P. Versus Subhash Sharma @ Bhasi, Cr. Appeal No.391 of 2002 has taken the view that the recovered stuff and the report of the analysis is falling short of requisite parameters to be in conformity with the definition of charas. This Court in Subhash Sharma @ Bhasi’s case (supra) has held as under:- “ ……. 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 (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 - 4 - 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.” 4. Accordingly, in view of the observations made above and the law laid down in Subhash Sharma @ Bhasi’s case (supra) we are of the considered view that the prosecution has not been able to bring home the guilt to the accused. Consequently, we find that the present appeal is devoid of any merit. There is no scope of interference in the judgment of the learned trial Court and the appeal is dismissed. Bail bonds furnished by the accused/respondent are ordered to be discharged. (Justice R.B. Misra), Judge. (Justice Rajiv Sharma), Judge. December 23, 2010. (sck).