High Court of H.P. 1

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

Cr. Appeal No. 58/2008 a/w

Cr. Appeals No. 202, 226 &

292/2007

Decided on: 27.6.2013

__________________________________________________

1. Cr. Appeal No. 58/2008

Raghuvir Singh .......Appellant

Versus

State of Himachal Pradesh …..Respondent

__________________________________________________

2. Cr. Appeal No. 202/2007

Prem Singh ....... Appellant

Versus

State of Himachal Pradesh …..Respondent

__________________________________________________

3. Cr. Appeal No. 226/2007

Jasvir Singh ....... Appellant

Versus

State of Himachal Pradesh ....Respondent

___________________________________________________

4. Cr. Appeal No. 292/2007

Krishan ....... Appellant

Versus

State of Himachal Pradesh …..Respondent

__________________________________________________

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Coram:

The Hon’ble Mr. Justice Surinder Singh, Judge

.

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

Whether approved for reporting?

1

For the Appellant(s) : Mr. Chaman Negi,

Advocate in Cr. Appeal

No. 58/2008.

Mr. Vinay Thakur,

Advocate in Cr. Appeal

No. 202/2007.

Mr. T.S. Chauhan,

Advocate

in Cr. Appeal No.

226/2007.

Mr. P.P. Chauhan,

Advocate

In Cr. Appeal No.

292/2007.

For the Respondent: Mr. Virender Kumar

Verma, Additional

Advocate General with

Mr. Ramesh Thakur,

Assistant Advocate

General.

Surinder Singh, Judge (Oral)

All these appeal are arising from the

judgment of conviction and sentence passed by the

learned trial Court in Sessions trial No. 8/2006,

Whether the reporters of the local papers may be allowed to see the Judgment?

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decided on 30.5.2007, against the appellants,

hereinafter referred to as “the accused persons”, in

a joint trial for the offences punishable under

Sections 20 & 25 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 in short “the Act”,

for allegedly transporting 8 kg “Charas” in Maruti Car

No. DL-3CG-9417.

2. In short, the prosecution story, as emerges

from prosecution evidence, is that in the year 2005,

PW-11 Head Constable Jai Gopal was Investigating

Officer posted in Police Station Karsog. On

27.10.2005, he headed the police party and was on

patrolling duty in official vehicle No. HP-33-8179,

which was being driven by PW-9 MHC Balam Ram,

since the driver was on leave. Around 11.30 a.m.,

they laid a Naka

near Gagon Nalla. In the

meantime, Maruti Car No. DL-3CG-9417 came from

the side of Kelodhar. It was stopped. Accused

Raghuvir Singh was driving the aforesaid car and

other three accused persons were its occupants.

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The police demanded the documents of the

vehicle. They got frightened. Two of the accused

persons, who were occupying the rear seat, were

Krishan and Jasvir. They had tried to run away, but

were over-powered. Accused Prem Singh was

sitting on the front seat adjoining to the driver,

holding a green and black-coloured bag, whereas

accused Krishan and Jasvir were having black-

coloured bag, which was kept by them in between

their seat. All the accused persons were from

Haryana State and on being asked, they informed

the police that they were on their visit to Himachal

Pradesh.

(ii) PW-11, Head Constable Jai Gopal

checked the green-coloured bag

which was with accused Prem

Singh. It contained stuff, which

was in the shape of small sticks

and balls. He conducted the

primary test and found it to be

“Charas”. Weight and Scale were

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arranged and on weighing, the

stuff so recovered came out to be

5 kg

. Another bag, which was

found in possession of accused

persons Krishan and Jasvir, who

were sitting on the rear seat, also

contained “Charas” in the same

shape and colour. It turned out to

be 3 kg.

(iii) PW-11, Head Constable Jai Gopal

separated two samples of 25

grams each from the bag

recovered from accused Prem

Singh. Both these samples were

sealed separately with seal

impression ‘N’. The remaining bulk

was put in the same bag from

which it was recovered and

sealed with the same seal. Each

of the sample parcels were

marked as A-I and A-II.

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(iv) From another bag, two samples of

25 grams each, were similarly

separated and sealed with the

same seal. These were marked as

B-I and B-II. The remaining stuff

was also sealed with the same seal

in the same bag. The aforesaid

police officer had taken the

specimen impression on a piece of

cloth Ext. PW-1/D, which was

signed by accused persons

Raghuvir, Prem Singh, Jasvir as well

as marginal witnesses and thumb

marked by accused Krishan.

(v) The seal after its use was handed

over to PW-2 Constable Bhupinder

Singh. The case property was

taken into possession vide

recovery memo Ext. PW-1/A.

Search and seizure memo Ext. PW-

1/B and attachment form Ext. PW-

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1/C were also prepared. Ext. PW

1/A and Ext. PW-1/B were signed

by accused persons Raghuvir,

Prem Singh, Jasvir as well as

marginal witnesses and thumb

marked by accused Krishan. Its

copy was given to the accused

persons free of cost.

(vi) Rukka Ext. PW-11/A was sent for

registration of the case. Police

also prepared spot map Ext. PW-

11/C.

(vii) The accused persons were

arrested. They were informed

about the grounds of arrest.

(viii) The maruti car in question

alongwith its documents was

taken into possession vide memo

Ext. PW-11/D.

(ix) On the same day, on reaching

Police Station, the case property

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was produced before PW-13

S.I/SHO Ishwar Dass. All the sample

parcels and the remaining bulk

were sealed separately with seal

impression ‘T’. Its seal impression

was taken on a piece of cloth, Ext.

PW-13/C. Thereafter, he had

handed over the case property to

PW-9 MHC Balam Ram alongwith

the NCB forms, over which he had

taken the facsimile of seal ‘T’.

(x) On 28.10.2005, special report of

arrest and seizure Ext. PW-13/D was

handed over to PW-4 Constable

Om Parkash to be handed over it

to S.D.P.O., Sunder Nagar.

(xi) PW-9 Head Constable Balam Ram

on receipt of the case property

alongwith other documents

entered it in the Malkhana register,

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the abstract whereof is Ext. PW-

9/A.

(xii) On 28.10.2005, two sample parcels

bearing Mark A-I and B-I alongwith

specimen seal impressions and

documents were sent through PW-

7 HHC Brij Lal vide R.C. No.

109/2005 to be deposited it in CTL

Kandaghat, but he returned

back on the same day and

informed the MHC that the sample

parcels were neither received at

CTL Kandaght nor at FSL, Junga.

(xiii) Constable Brij Lal was again sent to

deposit the aforesaid two

sample

parcels vide same R.C., but

returned on 3.11.2005 and

informed the MHC that again they

refused to take the samples for

analysis. Thus, PW-7 Constable Brij

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Lal had deposited the sample parcels

aforesaid alongwith R.C. etc. with

MHC. Copy of R.C. is Ext. PW-9/B.

(xiv) On proceeding on leave by PW-9

MHC Balam Ram, PW-10 Head

Constable Dhiraj had taken over

the charge. He also happened

to be a member of the patrolling

party. He stated that on

28.10.2005, Head Constable

Balam Ram had handed over

charge of Malkhana to him and

then on 1.12.2005, he had sent

two

sample parcels aforesaid

alongwith NCB forms, copy of FIR,

specimen seal impression vide

R.C. No 115/2005 Ext. P.W. 10/A

through Constable PW-8 Ravinder

Kumar to CTL Kandaghat, to

which he deposited on 2.12.2005

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and handed over the receipt

taken over on RC to him.

(xv) The sample parcels Ext. A-I and

Ext. B-I were examined in the

laboratory, which tested positive

for “Charas”. The report is Ext. PW-

13/E.

3. On completing investigation, challan was

presented in the Court for trial of the accused

persons. They were accordingly charge-sheeted for

the offences aforesaid, to which they pleaded not

guilty and claimed trial.

4. To prove its case, the prosecution

examined its witnesses. The accused persons were

also examined under Section 313 of the Code of

Criminal Procedure. They took up the defence that

on 25.10.2005, all of them had decided to visit

Himachal Pradesh in the vehicle aforesaid. During

this time, they had visited Shimla and then Tatta Pani,

where they took bath. Thereafter, they went

towards Karsog side and stayed in ‘Kisan Dhaba’.

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On 28.10.2005, in the wee hours of the morning, at

about 4.00 a.m., they were caught by the police

and taken to Police Station Karsog, where they were

arrested. They denied any contraband with them

and also disputed the story of the prosecution. The

accused persons also led evidence in defence.

5. According to DW-1 Khem Chand,

Pradhan of Gram Panchayat, Lower Karsog, he was

running “Kisan Dhaba” at Karsog. He stated that

the accused persons had stayed in his Dhaba

on

27.10.2005 and even prior to that, they had been

staying there. On 28.10.2005, the accused persons

had left the Dhaba around 4.00/5.00 a.m. When the

accused persons were standing on the road, police

took them to the Police Station. Later, he came to

know that “Charas” was recovered from their

vehicle.

6. DW-2 Jagbir, resident of Sonipat, was also

produced as a defence witness by accused

Raghuvir Singh. According to him, accused Jasvir

and Prem were from his village. They had hired the

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vehicle of accused Raghuv ir to visit Himachal

Pradesh at the rate of ` 5.00 per kilometer. In other

words, accused Raghuvir had tried to show that he

was not in any way concerned with the transaction

in respect of the contraband.

7. The learned trial Court disbelieved the

defence version and while relying upon the

prosecution evidence, convicted and sentenced

the accused persons, as aforesaid.

8. The learned Counsel for the accused

persons vehemently argued that the link evidence in

the instant case is missing and further that the report

of analysis does not prove that the samples so

examined in the laboratory were of “Charas”. To

substantiate their case, they put reliance on the

Division Bench judgment of this Court in Sunil Vs.

State of H.P. : Latest HLJ 2010 (HP) 207.

9. On the other hand , Shri Virender Kumar

Verma, Additional Advocate General assisted by Shri

Ramesh Thakur, Assistant Advocate General

supported the impugned judgment of conviction

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and argued that the link evidence in the instant

case is complete and no fault can be found with the

report of analysis, as it is clearly mentioned therein

that the sample parcels examined contained the

contents of “Charas”.

10. We have caref ully and meticulously

scanned the evidence. On the perusal of the

prosecution evidence, it is absolutely clear that the

accused persons had been staying in and around

Karsog for the last about 2-3 days. The case of the

prosecution is that on 27.10.2005, at about 11.30 a.m.

while traveling in Maruti Car No. DL-3CG-9417, they

were stopped and alleged recovery was effected

from their persons. On this point, the statements of

PW-11 Head Constable Jai Gopal, PW-9 Head

Constable Balam Ram, PW-7 HHHC Brij Lal and PW-8

Constable Ravinder Kumar are consistent without

any material contradictions. They were also

meticulously cross-examined by the defence, but no

dent could be caused in their statements, so far as

the recovery of the stuff from the bags, as alleged, is

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concerned. It is also established that from the stuff

recovered from the bag which was with accused

Prem Singh, two

sample parcels of 25 grams each

were separated and marked as A-I and A-II and

sealed with seal impression ‘N’. Its facsimile was also

taken on all the three NCB forms, one of which is Ext.

PW-11/B. The case property was taken into

possession vide seizure memos, referred above.

Rukka was sent for registration of the case, as is

testified by the Investigating Officer and also by

S.I./S.H.O. Ishwar Dass (PW-13). There is also

clinching evidence to conclude that the case

property consisting of two

bulk parcels as well as four

sample parcels with descriptive marks A-I, A-II, B-I

and B-II were placed before the Investigating Officer

for re-sealing, which were re-sealed with seal

impression “T”. The sample of the seal was taken

separately on a piece of cloth and its

impression/facsimile was also taken on the NCB

forms, which is clearly decipherable as per NCB

forms Ext. PW-11/B, referred above. PW- 13 S.I./S.H.O.

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Ishwar Dass further testified, as also admitted by PW-

9 Head Constable Balam Ram that the case

property alongwith sample parcels, copy of FIR etc.

were deposited in the Malkhana with him and to

that effect, the abstract of the Malkhana register is

Ext. PW-9/A. Till this point, there is no ambiguity in

the evidence of the prosecution at all. Though,

these witnesses have been cross-examined at

length, but nothing material could be brought on

record to shake their testimonies.

11. Now henceforth, the story, as projected,

goes on a different direction which causes breach in

link. According to PW-9 Head Constable Balam

Ram, two

sample parcels Mark A-1 and B-I were

handed over on 28.10.2005 to P.W. 7 HHC Brij Lal vide

R.C. No. 109/2005, Ext. PW-9/B for its deposit in the

laboratory. But according to HHC Brij Lal, the sample

parcels were not accepted in CTL Kandaghat as

well as in FSL Junga. They raised objections, but it is

not clear, what were the objections, which were

raised. However, again on 1.11.2005, the sample

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parcels were handed over to PW-7 HHC Brij Lal for its

deposit in CTL Kandaghat vide the same RC. But

again, the sample parcels were not accepted and

he returned back to Police Station Karsog and

deposited these two sample parcels alongwith

documents with MHC Balam Ram. We do not find

any reference in the RC regarding any objection

raised in the laboratory. Neither it is stated by him

nor by MHC Balam Ram, what were those reasons

which compelled the laboratory to accept it then,

without writing anything on the R.C. Even both these

witnesses, who had handled the sample parcels,

also did not say that the case property was received

back and deposited in the Malkhana in the same

condition as it was handed over to the said

Constable. The reasons for not accepting the

sample parcels could even be that the seals were

either broken or not tallied with the

samples/facsimile of seal on NCB forms, which were

later fabricated and re-sent by PW-10 Head

Constable Dhiraj, who took out charge from MHC

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Balam Ram as MHC or that it was a cooked up story

to cover up the delay in sending the sample parcels

for analysis on 1.12.2005 after about one

month

through PW-8 Constable Ravinder Kumar vide R.C.

No. 115/2005, Ext. P.W. 10/A, for its deposit in CTL

Kandaghat. Otherwise this inordinate delay of one

month in sending the said sample parcels has also

not been explained. This is also not explained either

by PW-10 Head Constable Dhiraj, the then MHC, or

by PW-8 Constable Ravinder Kumar, what was the

condition of the samples when it was entrusted to

Constable Ravinder Kumar and what were the

objections earlier raised and how these were

removed later before its acceptance.

12. All these things remained unexplained in

the statements of the aforesaid official witnesses and

otherwise also, no explanation has been offered,

even while addressing the arguments by the

prosecution before the learned trial Court. When

confronted in appeal, the learned Additional

Advocate General also had no answer as to what

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were the objections put by the laboratories and

whether these were with respect to the seals on the

sample parcels or any discrepancy in the

documents so sent to them or there was any other

reasons which compelled the laboratories not to

accept these sample parcels.

13. As a matter of fact, the prosecution is

obliged to explain every doubt which has crept in

the prosecution case which shakes the very

foundation of its case. It is not in dispute as to why

the prosecution story is silent on the objections raised

by the laboratories and the means and manners

these were removed.

14. Further, we also fi nd that the report of

analysis Ext. PW-13/E is not in consonance with the

definition of “Charas” and the judgments passed by

this Court. The perusal of the report of analysis

shows that the Chemical Examiner had conducted

qualitative and quantitative tests. These samples

were examined on 21.6.2006, i.e. after about six

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months from the receipt thereof. The result of the

examination is reproduced hereunder verbatim:

“4(a) Qualities test

: Microscopic Exam:-

Cystolithic hairs present.

Beams alkaline test= positive

(b) Result of

quantitative test: Resin =34.78%

(c) General : I am of the opinion that the

observation both the exhibits contain the

of the chemists contents of Chars.”

15.

“Charas” is one of the three form of

cannabis (hemp), as defined in Section 2(iii) of the

Act, which reads as follows:

““(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.”

17. 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

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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.

18. Flowering and fruiting tops

of cannabis plant have been

defined to meant 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.

19. When Charas, i.e. resin

and/or ganja, i.e. flowering or

fruiting tops of the cannabis plant,

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.

20. 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

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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 16

th July, 1996, under clauses

vii(a) and xxiii(a) of Section 2 of the

Act. For charas and hashish, which

are referred 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.”

16. Almost similar reports were examined by

the Division Bench of this Court in Sunil Kumar’s case

alongwith other connected matters (

Latest HLJ 2010

(HP) 207), which were not found in conformity the

definition of “Charas”

17. In the instant case from the stuff

recovered, one of sample parcels from each of

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the recovered stuff was sent for examination to

CTL Kandaghat, report whereof does not show

the presence of

characteristic cystholithic hair nor

it has been mentioned whether the resin found in

the said sample was that of cannabis plant so as

to bring it within the definition of “Charas

”, referred

to above. It also does not depict the presence of

cannoniboils/tetrahydrocannabinol. In other

words, the report of chemical examiner did not say

any thing about the source of resin. Therefore, in

our considered opinion, report of the analysis Ext.

PW13/E is discrepant and does not conform to the

definition of “Charas”, as such, the conviction and

sentence passed against the accused persons is

liable to be set aside. Ordered accordingly.

18. In result, all these appeals are

accepted. The accused persons are acquitted by

giving them the benefit of doubt, since they are in

jail undergoing the sentence. The Registry is

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hereby directed to issue release warrants of the

accused persons, forthwith.

19. Send down the records.

(Surinder Singh),

Judge

June 27, 2013 (Dharam Chand Chaudhary),

(hl) Judge.

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