IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 279 of 2007 Judgment reserved on 1.1.2010 Date of decision: 8 .1. 2010 Renu Gogar …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Sunil Chaudhary, Advocate. For the respondent : Mr. Ramesh Thakur Assistant Advocate General. Surinder Singh, J Appellant, a Nepali National, has assailed her conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, passed by the learned trial Court in Sessions Trial No. 01 of 2007, whereby she was sentenced to undergo imprisonment for a period of ten years and to pay a fine of rupees one lac and in default of payment 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes - 2 - of fine, further to undergo rigorous imprisonment for a period of one year for allegedly possessing 8 kg. of charas. 2. In short, prosecution case can be stated thus. On 13.6.2006, PW3 ASI Lal Man, along with PW2 Constable Chaman Lal and another Chaman Lal of Home Guards, was on patrolling duty and detection of crime at Garahan-nullah forest, falling under the jurisdiction of Police Post Manikarn, District Kullu, H.P. Around 5.15 a.m., appellant was noticed coming from the opposite direction through a bridle-path amidst the forest carrying a bag on her back. On seeing the police party, she tried to run away, which raised suspicion. Therefore, she was apprehended. Police asked her identity. Since the Police was apprehensive that she might be carrying some contraband thus, PW2 Constable Chaman Lal was sent to find out independent witness. After sometime, he returned and told ASI Lal Man that he could not find any witness. Thus, PW3 ASI Lal Man associated PW2 HHC Hem Raj and PW2 Chaman Lal as the witnesses in the case. PW3 ASI Lal Man rendered himself to search to the - 3 - said witnesses in the presence of the appellant but no incriminating article was found in his possession. To this effect, memo Ext. PA was prepared. 3. Although it was not required yet the appellant was given an option to get her bag searched in the presence of the Magistrate or a Gazetted Officer. She agreed that her bag be searched by the Police party. To this effect, consent memo Ext. PB was also prepared. 4. Thereafter, PW3 ASI Lal Man conducted the search of the bag of the appellant and recovered 8 kg. charas, contained in a polythene envelope, wrapped in two green coloured pieces of cloth. 5. PW3 ASI Lal Man separated two samples of 25 grams each from the recovered stuff, each were separately sealed with seal that produced the impression of letter ‘H’ of English alphabet and the remaining bulk was also sealed along with polythene wrapper and cloth in the said bag with the same seal. 6. NCB forms in triplicate were filled-in and its seal impression was taken on a piece of cloth Ext. PF. The - 4 - case property was taken into possession, vide memo Ext.PC. The seal after its use was handed over to PW1 HHC Hem Raj. 7. Appellant was arrested and grounds of arrest Ext. PD were informed to her. 8. Ruka Ext.PG was sent for the registration of the case to Police Station Kullu, on the basis of which FIR Ext. PM was formally registered. To this effect, endorsement was made by PW6 SI/SHO Mohinder Singh. 9. Appellant was brought to Police Post Jari, where her personal search was conducted by a lady constable Chandra Devi but nothing incriminating was found on her personal search. 10. ASI Lal Man produced the appellant along with the case property before PW6 SI SHO Mohinder Singh. He re-sealed all the three parcels with his seal that produced the impression of letter ‘T’ of English alphabet. The samples of seal impression ‘T’ were also taken separately. Memo Ext. PO to this effect was prepared. He filled- in column Nos. 9 to 11 of the NCB forms, which were stated to be prepared on the spot in triplicate. - 5 - 11. Thereafter SI/SHO Mohinder Singh handed over the case property along with NCB forms in triplicate and other connected documents to PW10 Addl. MHC Jia Lal at 3 p.m. on the same day to deposit in the Malkhana. 12. One of the sample parcels was sent through PW11 constable Pawan Kumar on 8.6.2006 along with sample of seal, NCB forms in triplicate for its analysis to C.F.S.L. Hyderabad, vide R.C No. 172/2006 but the said Laboratory did not accept the said sample on the ground that they did not accept the sample for analysis from the State of Himachal Pradesh, as such on 19.7.2006, sample along with documents were handed over back to PW4 MHC Roop Singh in the same position. 13. After about two months, i.e., 26.9.2006, PW4 Roop Singh again sent the sample-parcel along with NCB forms and other concerned documents for its analysis to Director Central Forensic Science Laboratory, Chandigarh, through PW8 Constable Diwan Chand. It was deposited in the said Laboratory on 27.9.2006. The sample was analyzed in the said - 6 - Laboratory. It tested positive and report to this effect is Ext. PR. 14. After completing the investigation, challan was presented in the court for the trial of the appellant. 15. Appellant was charge sheeted for the aforesaid offence to which she pleaded not guilty and claimed trial. 16. To prove its case prosecution examined PW3 ASI Lal Man, PW1 Hem Raj, PW2 Chaman Lal, PW6 SI SHO Mohinder Singh, PW11 Constable Pawan Kumar and PW8 Constable Diwan Chand besides PW4 MHC Roop Singh and PW10 Addl. MHC Jia Lal. 17. Appellant was also examined under Section 313 of the Code of Criminal Procedure. She denied the circumstances which were found attendant upon her. She took up the stand that on 12.6.2006 at about 7 p.m. at Bus Stop Jari, she was waiting for the arrival of bus along with her friend named Joon Maya and many other passengers were also there. Two unclaimed bags were lying on the bus stop. These were checked by the police and was falsely implicated in the case on the basis of suspicion. It was also the case of the - 7 - appellant that a case of similar nature qua the other unclaimed bag was foisted on Joon Maya. 18. When called upon to enter into her defense, no evidence was led. 19. At the end of the trial, appellant was convicted and sentenced as aforesaid, which is under challenge. 20. Learned counsel for the appellant Shri Sunil Chaudhary vehemently argued that the whole case of the prosecution is based upon the statements of the official witnesses but their version is contradictory and not worth inspiring confidence. He tried to point out the contradiction in the statement of SI/SHO Mohinder Singh that the case property and each of the parcels were stated to be sealed by him at three places with his seal that produced the impression of letter ‘T’ of English alphabet whereas, ASI Lal Man stated that SHO had re-sealed each of the parcels of the case property at four places and Constable Diwan Chand testified that he took sample for analysis, which were having only three ‘T’ seals therefore, the sample could not be - 8 - connected with this case. He also argued that the analysis report Ext. PR has failed to prove that the sample so analyzed was that of ‘charas’ falling within the definition contained in Section 2 (iii) of the Act as held by this Division Bench in Sunil Kumar’s case (Criminal Appeal No. 267/2009) along with six other connected matters, decided on 11.12.2009. 21. Contra Shri Ramesh Thakur, learned Assistant Advocate General supported the impugned judgment of conviction and sentence, passed by the learned trial Court and submitted that there is no material contradictions in the statements of witnesses and the examiner tested the sample, the report was positive. 22. The evidence on record reveals that the Police party headed by PW3 ASI Lal Man of Police Post Manikarn had apprehended the appellant at 5.15 a.m. whereas another Nepali woman Joon Maya was apprehended with 4 kg of charas by a Police party headed by ASI Khem Chand of Police Post Jari, as is evident from the copy of FIR Ext. DA. The place and time of - 9 - the incident is also different. Therefore, the defense raised by the appellant in this case is not plausible that the appellant along with her friend Joon Maya were apprehended by the Police at the same time, i.e., at Bus Stop, Jari when they were waiting for the bus. It is manifest from the record that when the alleged contraband was recovered from the bag carried by the appellant, PW3 ASI Lal Man had separated two samples of 25 grams each from the recovered stuff in the presence of PW2 Hem Raj and PW3 Chaman Lal which was sealed by him with seal that produced the impression ‘H’ of English alphabet. Thereafter, the case property was produced before PW6 SI SHO Mohinder Singh. He testified that he had re-sealed the case property with seal that produced the impression ‘T’. Initially NCB forms in triplicate were stated to have been filled-in by ASI Lal Man and later column Nos. 9 to 11 after re-sealing were filled- in by PW6. it is also stated that facsimiles of the seals were also affixed thereupon, but pertinently, the copy of the NCB forms was neither produced nor - 10 - exhibited by the prosecution during the trial of the case. There is also nothing on record to show that sample, which was allegedly sent through PW11 constable Pawan Kumar to C.F.S.L. Hyderabad for analysis, was returned with the objection, as aforesaid. The copy of R.C. against which the sample was taken, has also not been produced. Even though, if the sample was so sent on 8.7.2006, for analysis, as stated in the prosecution case, then it is not known as to why there was 28 days delay in sending the sample for analysis. Further, as per version of Constable Pawan Kumar, the sample was returned on 19.7.2006 by the Hyderabad Laboratory. In that case, it was incumbent upon the prosecution to prove on record by leading cogent evidence that this sample remained in the Laboratory itself from the date of its deposit till its return which is not there. Thus, there is a missing link in the entire prosecution case. 23. Further, we find when the sample was re-deposited with MHC Jia Lal on 19.7.2006, as stated by PW11 Constable Pawan Kumar, then it is not understood as - 11 - to why there was a delay of more than two months for sending it for analysis to C.F.S.L. Chandigarh and what was the reason therefor. This doubt was required to be removed by the prosecution by adducing a reliable evidence in this behalf, more specifically when there is a contradiction with respect to the samples having resealed at three or four places as aforesaid and the seal used by the Police at the time of recovery and re-sealing remained with the Police and the NCB forms, which allegedly contained the facsimile of seal, were withheld. Thus report Ext. PR of the analysis of the sample cannot be connected with the recovery of the alleged contraband from the appellant. 24. Also we find that the report Ext. PR issued by the Director of Forensic Science Laboratory, Chandigarh falls short of requisite particulars, as discussed hereinafter. The result of examination reads as under:- “RESULTS OF THE EXAMINATION Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and - 12 - chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below: Exhibit-1 is a sample of charas.” 25. Section 2 (iii) of the Act, says:- “(a) charas, that 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.” 26. The similar report of analysis viz-a-viz the definition above was examined by this Court in Sunil Kumar’s case (supra) by this Division Bench. 27. According to the definition of “Charas”, as given in Section 2(iii)(a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. - 13 - 28. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ‘ganja’. 29. When ‘Charas’, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act. 30. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in Sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No.S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For Charas and hashish, which are referred - 14 - to as extracts and tinctures of cannabis plant in entry No.23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55. 31. Report Ext. PR is signed by Dr. R.S. Verma in his capacity as the Director of Forensic Science Laboratory. The similar type of report was under scrutiny of this Court in a bunch matter in Sunil Kumar versus State (supra). In Panne Lal’s case Cr. A No. 45 of 2008 connected with Sunil Kumar’s case Dr. R.S. Verma, the Director, who issued the instant report (Ext.PR) was examined as a witness of the prosecution and in another connected case, i.e., State versus Jeet Ram (Criminal Appeal No. 363 of 2008 in bunch matters), he was examined as a witness of the defense. 32. With reference to his statement and of one Sh. A.K. Wasuja, Chemical Examiner, examined in Criminal Appeal Karuna Shankar Puri versus State connected - 15 - with Sunil Kumar’s case this Division Bench observed:- “From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal versus State and as DW-1 in appeal titled State versus Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW-1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri versus State, it appears that both the Experts are unaware of the term “Charas”, as defined and made an offence under the Act and that the tests were conducted by them to find if the stuff contained tetrahydrocannabinol and cystolithic hair. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW-9/D given in case titled Raj Kumar versus State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps uncertained quantity of Charas/ resin. We have noticed hereinabove that tetrahydrocannabinols are found not only in the Charas, which means separated resin of cannabis plant but also in ganja, as defined in Section 2(iii)(b) of the Act and even in the leaves, seeds and stems of cannabis plant. We have observed so, on the basis of authoritative literature. In The New Encyclopaedia Britannica, 15th Edition, tetrahydrocannabinol or THC - 16 - is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, tetrahydrocannabinol will be found even in the leaves, stem, seeds and the flowering and fruiting tops of cannabis plant. But resin is Charas, when it is separated from the plant or its aforesaid parts. Presence of resin in the aforesaid parts does not make such parts Charas nor is the resin in such parts Charas, unless separated, in view of the definition in Section 2(iii)(a) of the Act.” 33. After detailed examination of the identical reports like Ext. PR in this case it was also observed:- “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, - 17 - percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 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 per cent. 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 dried 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, 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.” - 18 - 34. Against the above back-ground, it was held:- “In view of the above-stated 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 dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.” 35. This case is also fairly and squarely covered by Sunil Kumar’s judgment and other connected matters (supra) and, in our considered opinion, the Chemical Report Ext. PR stands not connected with the recovered stuff and it also does not prove that stuff recovered was charas within the meaning of the Act. Accordingly, the conviction and sentence of the appellant passed by the learned trial Court is unsustainable and is therefore, set aside. Consequently, appeal is allowed. Appellant being in Jail, serving sentence, awarded by the learned trial Court, is ordered to be released at once in case her custody is not required in any - 19 - other case. Release warrant be prepared accordingly. (Surjit Singh),J. January 8, 2010 (Surinder Singh),J (cm)