STATE OF H.P. Vs. RAJESH THAKUR, S/O. SH. OM PARKASH THAKUR, RESIDENT OF SATAI, POST OFFICE PURAG, TEHSIL AND POLICE STATION KOTKHAI, DISTT. SHIMLA, H.P.

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 12.1.2005 passed in Sessions trial No. 37 -S/7 of 2004/03 by Additional Sessions Judge, (Fast Track Court), Shimla, H.P.

(2.) THE prosecution case is that, on 18.9.2003 at about 6.15 P.M., ASI Harish Kumar along with other police officials apprehended the accused/respondent, who after seeing the police officials tried to run away. After search, he was found carrying contraband good in a polythene bag, measuring 1 Kgs. 240 grams, out of which two samples of 25 grams each were separated, which were sealed in different parcels with seal impression "T" and the samples were sent for chemical examiner. After completion of investigation, the accused/respondent was changed for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act).

(3.) THE two independent prosecution witnesses i.e. PW -1Sh. Chet Ram and PW -2, Roshan Lal have not supported the prosecution case. On scrutiny of materials on record, prosecution witnesses and keeping in view the discrepancies and material contradictions, learned Additional Sessions Judge, Fast Track Court, Shimla has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter alia on several grounds considered by learned Additional Sessions Judge, we notice that the contraband good was recovered, qua which nothing has been revealed from the NCB form Ex. P -R that the same was prepared on the spot. However, on microscopic examination, by the Chemical Examiner, cystolithic heir was found to be present and beam's alkaline test positive and resin upto 21.92% was found present in the contraband good. In view of such analysis, the Chemical Examiner has indicated that the contraband good was charas. In similar facts and circumstances, this Court (Division Bench) vide judgment dated 19.9.2011, Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi) has taken a view that the contraband good cannot be said to be charas for reasons indicated in paragraph 15 of the aforesaid judgment. The relevant paragraph is extracted herein below: -