STATE OF HIMACHAL PRADESH Vs. VIDYA PAWAN SON OF SHRI RAM NATH, R/O VILLAGE RIBBA, TEHSIL MOORANG, DISTT. KINNAUR, 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 29.11.2005 passed in Sessions Trial No. 1 of 2005 passed by learned Sessions Judge, Kinnaur, District Shimla, H.P., acquitting the accused/respondent for the offences under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act). As per the prosecution on 13.12.2004 on telephonic information, police officials proceeded to Village Dev Nagar and apprehended the accused persons in a vehicle. On search of a polythene bag, charas of 1 kilogram 450 grams were recovered, out of which two samples of 25 grams each were separated and the samples were sent for chemical examination. After chemical examiner report and investigation in detail, the accused were charged with the aforesaid offence.

(2.) IN order to prove its case, prosecution examined as many as 11 prosecution witnesses. Accused was also examined under Section 313 of the Code of Criminal Procedure, wherein he denied the prosecution case.

(3.) INTER alia on many other grounds considered, referred and relied upon by the learned Sessions Judge, one important aspect which requires consideration in the present case is Ex. PX reveals that NCB form cannot be said to have been filled up at the spot and in view of the chemical examination report as indicated in Ex. PX, it appears that on microscopic examination has found cystolithic heir present in the sample and beam's alkaline test positive and general observation about the contraband good was said containing resin up to 30.07%. In these circumstances, the chemical examiner has opined that the contraband good recovered was charas. In similar facts and circumstances, this Court (DB) vide its judgment dated 19th September, 2011, in Cr. Appeal No. 391 of 2002 (State of H.P. Vs. Subhash Sharma @ Bhasi), has held that the contraband good so recovered cannot be said to be charas. In order to arrive at such findings, this Court (DB) in Subhash Sharma @ Bhasi's case has referred and relied upon the paragraphs 15 & 16, which are extracted herein below: