NANT RAM Vs. NARCOTICS CONTROL BUREAU, CHANDIGARH

JUDGEMENT

(1.) We have heard learned counsel appearing for the appellant and learned Special Prosecutor. A number of submissions have been made by learned counsel for the appellant on the question of the guilt of the appellant. Learned counsel has urged that the identity of the appellant has not been established. The appellant was not identified as Anant Ram, who is the main perpetrator, but Nant Ram. This was evident from the statements of DW-1 Sh. Naresh Kumar, the informant and DW-2 Smt. Saina Devi. Learned counsel has very ably taken us through the record to establish confusion in the identity, which was created. On this sole submission the basis of which conviction of the appellant is based cannot be sustained.

(2.) Learned counsel also urges that conscious and exclusive possession of the appellant has not been proved on record for the reason that no memo was prepared and witnesses Saina Devi and Naresh Kumar who were present were not examined, the recovered contraband was not exhibited in Court and merely sealed parcel was tendered for test. The appellant has already undergone nine years and 10 months imprisonment. He was sentenced for 10 years. We would have entered into the factual determination on these submissions but we do not as whatever is the fate of this appeal, the appellant has practically undergone the entire period of incarceration.

(3.) It is also urged by learned counsel that according to the Ext. P-O, which is the test memo, the test of charas has not been conducted by the Laboratory. Learned counsel relies on the judgment of the Full Bench of this Court in Criminal Appeal No. 763 of 2002 titled as State of H.P versus Mehboob Khan along with its connected matters, decided on 24th September, 2013. We find force and substance in this submission. We hold that the test report Ext. P-O is not in accordance with law and that the substance cannot be termed as charas. However, in the test conducted by the Laboratory, the tetrahydrocannabinol (THC) was found present which would make the total quantity of tetrahydrocannabinol as 5.3 grams in the entire bulk. According to learned counsel he can only be convicted for possessing tetrahydrocannabinol to the extent of 5.3 Grams punishable under Section 21 of the Narcotics Drugs and Psychotropic Substances Act. The quantity of 5.3 Grams falls in retail/intermediary quantity, which is between 2 Grams and 50 Grams. In this eventuality, the sentence of imprisonment in totality is made out under Section 21 of the Narcotics Drugs and Psychotropic Substances Act and not under Section 20 of the Narcotics Drugs and Psychotropic Substances Act. The appellant has already served out the sentence. We, therefore, direct that appellant be released forthwith, in case he is not wanted in any other case. Appeal stands disposed of.