STATE OF HIMACHAL PRADESH Vs. VIJAY KUMAR

JUDGEMENT

(1.) THE present Criminal Appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 1.6.2004 passed by the learned Sessions Judge, Kullu, H.P. in Sessions Trial No. 50 of 2003 acquitting the accused/respondents for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

(2.) THE prosecution case is that on 18.11.2002 HC -Gangbir Singh (PW -8) along with other police officials apprehended the accused/respondents while they were travelling in maruti van bearing No. HP -02 -4083 and on search 350 grams charas was recovered from their possession. Two samples of 25 grams each were separated which were sealed in different parcels and the remaining charas was also separately packed and sealed. One of the samples was sent for chemical examination and after completion of chemical examination the accused were charged for the aforesaid offence.

(3.) THE learned Sessions Judge, Kullu after analysis of the materials on record, prosecution evidences, inter alia, on many other grounds has come to the conclusion that prosecution has in the facts and circumstances of the case failed to prove this case beyond reasonable doubt. Besides the analysis and above said findings, in similar facts and circumstances this Court (Division Bench) while deciding Criminal Appeal No. 391 of 2002, titled as State of H.P. versus Subhash Sharma @ Bhasi, vide judgment dated 19.9.2011 has taken a view that the charas recovered was infact not charas for the reasons indicated therein in paragraph 15. For convenience paragraph 15 of the judgment of Subhash Sharma (supra) is extracted as below: ... ... "The cystholithic hair is a fiber which could also be found in flowering tops of 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.