STATE OF HIMACHAL PRADESH Vs. BIPAN KUMAR

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 1.4.205 passed in Sessions trial No. 21 of 2004 by learned Sessions Judge, Hamirpur, acquitting the respondent/accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called NDPS Act).

(2.) AS per prosecution case, on 22.5.2003, the police party while patrolling, received an information that the accused was dealing in sale and purchase of charas. On such information, police party went to the shop of the accused/respondent. On seeing the police party, accused/respondent ran towards back side of the shop to the jungle with an envelope in his hand. The accused/respondent was overpowered him and on his search charas in the shape of sticks was recovered from his possession, which on measurement was found to be 550 grams. Two samples of 250 grams each were taken from the contraband good and seal impression ˜S' was put on it and remaining contraband good was kept in a separate parcel. Samples were sent for chemical examination. On completion of investigation, the accused/respondent was charged for the aforesaid offence.

(3.) ON analysis of prosecution witnesses and materials on record and keeping in view the contradictions and inconsistencies, learned Sessions Judge has arrived at a finding that the prosecution has failed to prove its case beyond reasonable doubt. Inter alia on the grounds taken by learned Sessions Judge, one important aspect emanating from the record cannot be ignored. On analysis of Ex. PW -9/D, chemical examination report, it appears that in contraband good on examination by Chemical Examiner, more specifically on microscopic examination, cystolithic hair was found to be present and beam's alkaline test was found positive. Resin upto 32.77% was found present in the contraband good. On these parameters, the Chemical Examiner, H.P. CTL, Kandaghat has opined that the contraband good is 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. For reference, the relevant paragraph of Subash Sharma @ Bhasi's case is extracted herein below: -