State of H.P v. Whether approved for reporting?1

called (cid:145)NDPS Act(cid:146)) in reference to FIR No.9/2002 dated

3.1.2002.

2. The prosecution case is that on 3.1.2002 at about 9 P.M, S.I. Desh Raj (PW-9) along with other police officials while on Nakabandi, apprehended accused/ respondent in HRTC Bus No. HP-33-5421, coming from Manali side. The bus in question was checked in the presence of its driver Pyare Lal (PW-2), Conductor Lalit Kumar (PW-1) and Krishan Kumar, a passenger (PW-7). On checking, one attachØ Ext P-5 was found lying near seat No.1. On inquiry, passenger sitting at serial No. 13, claimed ownership of the attachØ. Thereafter, on search 10 Kgs 500 grams of (cid:145)Charas(cid:146) was recovered from the said attachØ, from which two samples of 50 grams each were taken separately and were put into two separate cloth parcels and sealed with seal impression (cid:145)H(cid:146). The samples were to Chemical Examiner. After investigation, accused/respondent was charged for the aforesaid offence.

3. In order to prove its case, prosecution has examined as many as ten prosecution witnesses, whereas, through his statement under Section 313 3 Cr.P.C, accused/ respondent denied the prosecution case.

4. (PW-1) Lalit Kumar, while working as conductor, has endeavour to support the prosecution case and has stated that the accused boarded the bus from Mandi and while boarding, he kept the suit case near seat No. 1 & 2, i.e. on the empty place near bonnet and on asking the accused to keep the suit case with him, he stated that there is no space in the seat, as such, he kept the suit case near seat No. 1 & 2. PW-1 has stated that the suit case was opened by the police in the presence of driver, Pyare Lal (PW-2), Krishan Kumar, who was sitting on front seat, and other passengers of the bus and from the said suit case, (cid:145)Charas(cid:146) was found. In cross examination, PW-1 stated that the police officer found the (cid:145)Charas(cid:146) in the suit case and then asked the passengers about the ownership of the suit case. PW-1 again stated that police officer asked the ownership of the suit case before opening the same and the police entered in the bus and opened the suit case in the presence of the passengers, whereas PW-1 told the police officer that the suit case belongs to the 4 person who is sitting on seat No.13 and when PW-1 pointed out towards seat No.13 then a person sitting on the bench having seat No. 12 & 13 got down from the bus and did not come back. Despite endeavour made by police to locate that person, that person could not be traced out. The person who was occupying seat No. 12 had boarded the bus at Mandi and was going to Chandigarh. As stated by PW-1, there was no bus stop where the bus was intercepted by the police. He further stated that after taking possession of the suitcase, police took the driver, 40-5 persons, including PW-1 to the nearby police station, Sadar and all the documents were prepared by the police at Police Station including the parcels. PW-1 also accepted in cross-examination that seat No.1 was meant for conductor for night duty in the bus and also accepted that he was on night duty conductor. PW-1, however, declined to indicate the name of the accused. PW-1 has further stated that the samples of (cid:145)Charas(cid:146) were not weighed in his presence.

5. (PW-2) Pyare Lal, said to be the driver of the bus at the relevant time has stated that one suit case was lying in front of the seat belongs to the accused sitting at seat No. 13. The SHO had enquired from the 5 passengers regarding the ownership of the suit case. In cross- examination PW-2 has stated that it is incorrect that (cid:145)Charas(cid:146) was recovered from the suit case at the place of search. Self stated that the police took the accused and suitcase inside the police station. PW-1, PW-2 and Krishan Kumar were taken to the police station, where whole proceedings were conducted. As stated by PW-2, he did not enquire from anybody about the ownership of the suit case. PW-2 also reiterated his statement made in examination in chief that all the proceedings wee conducted in the police station and has also very categorically indicated that he was not aware as to who was occupying seat No. 12 & 13. PW-2 also stated that for about one hour, neither PW-1 nor any one of the passengers has divulged anything about the ownership of the suit case.

6. (PW-3) H.C. Bhup Singh, (PW-4) H.C. Chet Singh, (PW-5) Inspector Sanjeev Chouhan and (PW-6) H.C. Partap Singh, official witnesses, had endeavoured to support the prosecution case to the extent the role assigned to them. (PW-7) Krishan Kumar, occupying seat No.1, has stated that the suit case belongs to a person who was occupying seat No. 12 & 13. PW-7 has further 6 stated that recovered article was weighed and was found as (cid:145)Charas(cid:146) and no other proceeding was conducted before him. PW-7 has also stated that upon inquiry, one passenger sitting in the bus alighted from the bus and ran way and thereafter three constables took the attachØ case along with driver, conductor and PW-7 to the police station. (PW-8) Constable Pardeep Kumar and (PW-9) Sub Inspector, Desh Raj have endavoured to support the prosecution case in their official capacity.

7. On analysis of the prosecution witnesses and materials on record we notice that though PW-1, PW-2 and PW-7 have initially endeavoured to support the prosecution case, yet on the analysis of testimony of the above prosecution witnesses, there are material contradictions. As per the testimony of PW-1, made in cross-examination, initially police officials enquired about the suit case lying near seat No.1 and when he pointed out towards seat No.13, at that time, the person sitting on bench having seat Nos. 12 and 13 got down and ran way and did not come back. Consistently, PW-1, PW-2 and PW-7 have stated that the proceedings were done in the police station and no proceeding was done at the spot. Perusal of (cid:145)NCB Form(cid:146)/ Ext PN/1 also reveal that it 7 was not prepared on the spot and facsimile of the seal, used during the process of seizing the drugs, have also not placed over it. On microscopic examination, cystolithic hairs were present and beams alkaline test was found positive but it does not say that the resin content of 28.04 was of a cannibis plant. However, in those circumstances, Chemical Examiner, opined that exhibit contains the contents of (cid:145)Charas(cid:146). The Chemical examiner has not indicated as to whether the resin contain of the above percentage was of cannabis plant.

8. In our earlier judgment dated 19.9.2011, this Court (DB) in Criminal Appeal No. 391/2002 (State of HP Vs. Subhash Sharma Bhasi) has observed paragraph 15 as below:- (cid:147)(cid:133)(cid:133).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 orstem. The definition of charas is given in Section 2(iii) (a) of the 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 8 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 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.

9. In view of the above observation made in Subhash Sharma @ Bhasi (supra), we also infer that the recovered article, in the present case, cannot be said to be of (cid:145)Charas(cid:146), As such, benefit of doubt has to be given to the accused.

10. In our considered view, the prosecution has miserably failed to prove its case beyond 9 reasonable doubt and also has failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed.

11. Bail bonds, furnished by the accused/ respondent, are hereby discharged. ( R.B.Misra ), J. 12th October, 2011 (sl) (Dev Darshan Sud), J.