Allowed

Sanjay Kumar v. State

Himachal Pradesh HC5 Nov 2024CR.A/367/2007

Case brief

AI extract

What is this about?

Conviction under Section 20 NDPS Act for possession of three kilograms of charas was challenged. The chemical report did not state the resin was from a cannabis plant and re-analysis showed nearly half the seized weight missing. Following Subhash Sharma, benefit of doubt was given and conviction set aside.

What did the court decide?

Conviction and sentence set aside; accused acquitted; fine, if deposited, to be refunded; accused released forthwith.

Sanjay Kumar Vs State — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 367 of 2007-B

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Judgment reserved on : 20.6.2013

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Date of Decision : July 5 , 2013

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Sanjay Kanwar @ Sanju …Appellant/convict Versus State of H.P. …Respondent

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Coram:

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The Hon’ble Mr. Justice Dev Darshan Sud, Judge

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The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?¹ No.

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For the appellant : Mr. Vinay Thakur, Advocate, for the appellant. For the respondent : Mr. B. S. Parmar, Additional Advocate General, Mr. V. S. Chauhan, Addl. A.G. and Mr. Vikram Thakur, Dy. A.G. for the responenets-State.

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Sanjay Karol, J.

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Assailing the judgment dated 17.5.2007, passed by the learned Special Judge, Shimla, in Sessions Trial No. 10-S/7 of 2007, titled as State vs. Sanjay Kanwar alias Sanju, whereby the accusedappellant has been convicted for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs

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Whether reporters of Local Papers may be allowed to see the judgment?

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and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of fifteen years and pay a fine of ` 1,50,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years, the accused has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973.

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The prosecution case, in brief, is that on 19.10.2006, at about 4.00 a.m. at place near Gumma, the police party apprehended the accused and recovered three kilograms of charas from his possession. Two samples of 25 grams each were taken out from the recovered charas and sealed with seal impression-B. The remaining bulk was also sealed with the same seal. On 20.10.2006 one sealed sample along with the NCB form and specimen seal were sent for chemical examination which were deposited at CFSL Chandigarh. As per the Chemical Examiner’s report (Ext. PZ) the contraband stuff was opined to be charas. With the completion of investigation, challan was presented in the Court for trial.

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Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial.

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In order to establish its case, prosecution examined as many as ten witnesses and the statement of the accused under Section

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313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication.

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After trial, the accused stands convicted of the charged offence, inter alia, on the ground that the prosecution was able to establish its case that the accused was carrying contraband substance i.e. charas which was three kilograms, and sentenced, as aforesaid.

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The Chemical Examiner vide report (Ext. PZ) has opined that chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinols and on microscopic examination cystolithic hair were found present. As such, the Chemical Examiner has opined that the contraband substance so recovered was charas. It does not specifically state that the contents of resin is only of cannabis plant; concentrated preparation and the resin known as hashish oil or liquor hashish.

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In the instant case, in my considered view, interference is warranted, keeping in view the ratio of law laid down by a Division Bench of this Court in Criminal Appeal No. 391 of 2002, titled as State of H.P. vs. Subhash Sharma @ Bhasi, decided on 19.9.2011. The relevant paragraphs No.15 & 16 of which read as under:-

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“15. ……… 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

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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

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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.

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In the instant case, as already stated above, firstly the sample so analyzed by the laboratory could not be connected with the recovered stuff and secondly report of the analysis is falling short of requisite parameters to be in conformity with the definition of charas. Therefore, in our considered opinion, the acquittal of the respondent cannot be interfered with. As such the appeal sans merit and is accordingly dismissed.”

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On 29.5.2012, prosecution moved an application requesting the entire bulk charas (Ext. P-1) to be sent for chemical analysis to

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the Forensic Science Laboratory. The same was accepted. The bulk parcel as well as sample parcels were sent to the State Forensic Science Laboratory, Junga, H.P. and report dated 13.12.2012 is placed on record. The respondent-State has now moved an application being Cr. M. P. No. 244 of 2013, seeking permission to examine ASI Kalyan Singh and MHC Kartar Singh as additional evidence. We are not inclined to allow this application for the simple reason that in the instant case the fresh report dated 13.12.2012 discloses the weight of the exhibits in parcels A, B and C to be 1.298 kg, 13.352 grams and 10.861 grams, respectively. The weight of the bulk sample so sent does not match with the weight of the contraband substance seized by the police. The difference in weight is almost by half. It is not the case of the prosecution that the contraband substance had dried up, reducing its weight to almost half. Hence we disallow the application.

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In view of the observations made by this Court in Subhash Sharma @ Bhasi’s case (supra) and in view of the Chemical Examiner’s report, we are of the considered view that the contraband substance so recovered in the present case cannot be said to be charas. As such, benefit of doubt has to be given to the accused.

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Thus, on this short ground alone, the present appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside and the accused is acquitted of the charged offence. Fine amount, if deposited, be refunded to the accused.

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Accused be released forthwith if not required in any other case. Release warrants be prepared and issued accordingly.

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Appeal stands disposed of, so also the pending application(s),

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if any.

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(Dev Darshan Sud), Judge.

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(Sanjay Karol), Judge. July 5 , 2013 (PK)