1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.248 of 2005 Decided on : 07.04.2008 Seeta Devi …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellant : None. For the Respondent : Mr. Rajinder Dogra, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. Surjit Singh, Judge (Oral ) Nobody appears for the appellant. We have gone through the record and heard learned Additional Advocate General. Appellant has been convicted of an offence, punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to under-go rigorous imprisonment for ten years and to pay a fine of rupees one lac, in default of payment of fine to under-go imprisonment for a further period of four years. The appellant was sent up for trial on the following allegations: On 8-1-2004, a Police Party, headed by Head Constable Yash Paul of which Gurdial Singh Constable (PW6), HHC Nand Lal (PW7) and one lady constable were the other members, was present at a place called “Farsi Nallah” in connection with routine patrolling, when they saw the appellant coming with a ruck-sack. On seeing the Police, she became nervous. That aroused the suspicion of the police party. They searched her ruck-sack and Whether reporters of the local papers may be allowed to see the judgment? 2 found 2 kgs. stuff which looked and smelt like Charas. Two samples, each weighing 25 grams, were separated. The samples and the bulk charas were made into three parcels that produced impression of letter ‘H’ of English alphabet. Search memo was prepared. Appellant was arrested. Sample parcels and the third parcel containing the bulk stuff were deposited with the Station House Officer who affixed his own seal that produced the impression of English letter ‘K’. One sample was sent to the Chemical Examiner, who opined that it had the contents of charas because it contained resin of cannabis plant to the extent of 32.10%. Trial Court believed the version of Yash Pal Singh Head Constable (PW8) who effected the search and recovered the stuff from the appellant as he found the same to be duly corroborated by Gurdial Singh Constable (PW6) and HHC Nand Lal (PW7). Appellant is duly represented by a counsel. He was present on the last date of hearing and took an adjournment on the plea that the copy of the Paper Book had not been supplied to him. We found out from the record that such copy had been supplied to him only two days back. We felt that the counsel did not have enough time to go through the record and so adjourned the matter. The matter has been taken up today, after about twenty-five days. The learned counsel is not present. So we have gone through the record our-selves and heard the learned Additional Advocate General. We see no major contradiction in the testimony of H.C. Yash Pal Singh (PW8) and the other two official witnesses, who were accompanying him at the time of the search and seizure. Their testimony proves beyond doubt that the appellant was apprehended with ruck-sack which contained 2 Kg stuff which looked and smelt like charas. Chemical Examiner’s report Exhibit PW4/B shows that the sample of the recovered stuff was found to 3 contain 32.10% resin and tested positive for alkaline test. Therefore, there should be no reason to dis-believe the prosecution version that the stuff, which was recovered from the appellant, was Charas. However, we find that the charas contents in the recovered stuff were only to the extent of 32.10% because the resin content in the recovered stuff was only to that extent. Admittedly, appellant was charged with offence of being in possession of Charas. Charas, as per definition contained in sub-clause (a) of Clause (iii) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, means resin, in whatever form, whether crude or purified, obtained from cannabis plant and also includes concentrated preparation known as Hashish oil or liquid Hashish. It has been found that in the present case, as per report of the Chemical Examiner that the entire sample stuff was not resin or say Charas, but only a part of it, to the extent of 32.10% was so and, hence, the appellant cannot be said to be in possession of 2 kgs. of Charas. What was in possession of the appellant was not whole Charas but something which included Charas (resin) to the extent of 32.10 per cent only and the rest of the stuff was some unknown substance about which report of the Chemical Examiner is silent. We have perused the report of the Chemical Examiner, per which the sample contained contents of Charas. The aforesaid position is supported by the judgment, delivered by a Division Bench of this Court, in Dharam Pal versus State of H.P. and another appeal (Latest HLJ 2007 (HP) 827). In the aforesaid case, it has been held that only the resin content of the stuff is Charas and that in the absence of the report of the Chemical Examiner about the rest of the contents of the stuff, the quantity of the Charas, based on the percentage of the resin found therein by the Chemical Examiner, is required to be worked out and the appellant-accused is to be held responsible for 4 possessing Charas only to the extent, the stuff contains the resin content in it. As noticed hereinabove, the total quantity of stuff recovered from the appellant was 2 kgs. The Chemical Examiner has found resin content in it to the extent of 32.10 per cent. That means the Charas/resin content in the recovered stuff was 642 grams. This quantity is less than the commercial quantity, as specified vide Notification No.S.O. 1055(E), dated 19th October, 2001, issued by the Central Government, even though it is more than the upper limit of the small quantity fixed by the same Notification. Thus, the appellant is liable to be punished not under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, as done by the trial Court, but under Section 20 (B) of the said Act, for which no minimum sentence is prescribed. The offence under Section 20(B) is punishable with imprisonment that may extend to ten years and with fine which may extend to Rs.1,00,000/-. Looking to the quantity of resin/Charas found in the stuff recovered from the appellant, we feel that the ends of justice would be met in case her sentence is reduced from ten years rigorous imprisonment and a fine of Rs.1,00,000/- to four years rigorous imprisonment and a fine of Rs.20,000/-, in default of payment of fine rigorous imprisonment for a further period of six months. We order accordingly. Appeal stands disposed of. ( Surjit Singh ), Judge. (Surinder Singh ), April 7, 2008 Judge. (bm) 5