IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.435 of 2005 Decided on : March 24, 2008 Rakesh Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. Bimal Gupta, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge( Oral ) Heard and gone through the record. 2. Appellant is aggrieved by the judgment of the trial Court whereby he has been convicted of an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo imprisonment for a further period of one year. 3. The only point that has been urged before us is that the case of the prosecution, as testified by PW-9 SI Chaman Lal and the other official witnesses accompanying him, is that the Charas, in question, was comprised in two bundles and there is absolutely no evidence if the contents of both the bundles were mixed up before the samples were taken and, therefore, the sample cannot be said to Whether reporters of the local papers may be allowed to see the judgment? …2… represent the contents of both the bundles recovered from the appellant. 4. We have gone through the entire evidence and find good deal of force in the submission. However, from the record it is not clear as to what was the weight of Charas content in each of the two bundles. The total weight was 3.600 kgs. Neither in the examination- in-chief of the witnesses of the prosecution nor in their cross- examination is there any indication as to the weight of the contents of each of the two bundles. In the absence of evidence and also looking to the fact that both the bundles were made by use of the pieces of cloth, from the same bed-sheet, we assume that the contents of both the bundles were almost equal. There being no evidence that the contents of the two bundles were mixed up, it has to be presumed that the samples were taken out of the contents of one of the two bundles. That means the report of the Chemical Examiner Ex. PW-9/B pertains to contents of one of the two bundles, the quantity whereof has been presumed, hereinabove, to be half the total quantity recovered from the appellant. Therefore, the stuff that was recovered from the appellant has to be taken to be 1.800 kgs. 5. The Chemical Examiner, per report Ex.PW-9/B has found that the sample contained resin, to the extent of only 31.89 per cent. 6. Learned counsel submits that the appellant was sent up for trial for possessing Charas and the 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 submitted that in the present case, as per report …3… of the Chemical Examiner, the entire sample stuff was not resin or say Charas, but only a part of it, to the extent of 31.89 per cent, was resin and, hence, the appellant cannot be said to be in possession of 1.800 kgs. of Charas. He says that what was in possession of the appellant was not whole Charas but something which included Charas (resin) to the extent of 31.89 per cent only and the rest of the stuff was some unknown substance about which report of the Chemical Examiner is silent. He has taken us through the report of the Chemical Examiner, per which the sample contained contents of Charas. 7. We find ourselves in agreement with the aforesaid submission of the learned counsel for the appellant. His submission 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 possessing Charas only to the extent, the stuff contains the resin content in it. 8. As noticed hereinabove, the total quantity of stuff recovered from the appellant was 1.800 kgs. The Chemical Examiner has found resin content in it to the extent of 31.89 per cent. That means the Charas/resin content in the recovered stuff was 574 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 more than the upper limit of the small quantity fixed by the same Notification. Thus, the appellant is …4… 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 his sentence is reduced from ten years rigorous imprisonment and a fine of Rs.1,00,000/- to three 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. 9. Appeal stands disposed of. ( Surjit Singh ), J March 24, 2008(sd) ( V.K. Ahuja ), J