IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 712 of 2002 Date of Decision : 12.10.2011 ________________________________________________________ State of H.P. ….Appellant Versus Tek Singh ….Respondent. ________________________________________________________ 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 For the Respondent: Mr. Himmat Negi, Advocate, vice Mr. Ajay Mohan Goel, Advocate. ____________________________________________________________ R.B. Misra, J(oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, against the judgment dated 26.6.2002 passed by the learned Sessions Judge, Solan in Sessions trial No. 15-S/7 of 2001, acquitting the accused/respondent for offences under Section 20 of the Narcotic Drugs and Psychotropic 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 Substances Act, 1985 (in short called ND&PS Act) in reference to FIR No. 15/ 2001 dated 19.2.2001. 2. The prosecution case in brief is that on 19.2.2001 at about 2.00 AM accused while travelling in bus No. HP-01-1662 was found carrying charas weighing 3 kg when search was made by the police party. 3. In order to prove its case, the prosecution has examined as many as 10 witnesses, whereas in his statement under Section 313 Cr.P.C., the accused/respondent denied the prosecution case. 4. Devi Singh (PW1) deployed at the relevant time as driver in the said bus, has not supported the prosecution case while stating that he could not identify the accused. Phool Singh (PW2) in his endeavour to support the prosecution case has stated that 3 kg charas was recovered from the possession of one passenger sitting on seat No.27 of the said bus. Banwari Lal (PW3), constable took the special report given to him by MHC Neelam Kumar vide R.C. No.88/2001 and deposited the same at CTL Kandaghat. Whereas, Neelam Kumar (PW4), Balbir Sharma (PW5), Yogender Kumar (PW6), Vijay Kumar (PW7), Taranjeet Singh (PW8), H.C. and SalimAhmad (PW9), I.O. in discharge of their official duties have endeavoured to support the prosecution case. 3 Sukh Darshan Singh (PW10), ASI in his endeavour also supported the prosecution case. 5. Surprisingly, the prosecution has not examined any of the passenger of the bus and have only examined driver and conductor of the bus namely Devi Singh(PW1) and Balbir Sharma (PW5) respectively. Whereas, Devi Singh (PW1) and Balbir Sharma (PW5), when appeared in the witness box did not testify the recovery of the contraband good from the possession of the accused. Such two important prosecution witnesses have not supported the prosecution case and have turned hostile. 6. We have carefully perused and analyzed the ‘NCB Form’ Ex.PW10/B. From the perusal of such exhibit, it does not appear that the same was prepared on the spot. Resin contents was said to be present in the recovered contraband good was appearing 29.1%, 29.5% and 29.2%. The Chemical Analyst has given the opinion that the contents of contraband good is charas. We also notice that the Chemical Analyst has not mentioned anywhere that the contraband good is derived or obtained from the cannabis plant. Ex.PW7/A though reveals about the presence of cystholithic hair in the recovered article but it does not say that resin contents of 29.1% was of 4 cannabis plant. This Court (DB) (in which one of us Hon’ble R.B. Misra, J. was member) on 19.9.2011 while disposing of the Criminal Appeal No. 391 of 2002 (State of H. P. versus Subhash Sharma @ Bhasi) has observed in the relevant paragraphs as under: “15. Also we find that the report of the analysis Ex.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 plan. 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 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. 16. In the instant case, as already stated above, firstly the sample so analyzed by the laboratory could not be connected with the recovered stuff and secondly report of the analysis is failing short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considering 5 opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed.” 7. In view of the aforesaid observations made above, we are also of the considered view that the sample of contraband good analyst by the chemical laboratory is not connected with the recovered stuff and the report of Chemical Analyst is also not meeting the parameters of the definition of charas as such, conviction and sentence cannot be awarded against the accused. 8. On the analysis of the evidence and materials on record, learned Sessions Judge had rightly arrived at the finding that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt to the accused. Accordingly criminal appeal being devoid of merit is dismissed. Bail bond furnished by the respondent/accused is discharged. (R.B. Misra) Judge October 12, 2011 (Dev Darshan Sud), (jai) Judge