2010(2) Crimes 558 (H.P.)
HIMACHAL PRADESH HIGH COURT
Surjit Singh and Surinder Singh, JJ
Panne Lal —Appellant
versus
State of H.P. —Respondent
Criminal Appeals No. 267 & 311 of 2007, 45, 314, 363 and 500 of 2008
Decided on 11.12.2009

IMPORTANT POINT
When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact charas.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 2(iii)(a), 2(iii) (c) and 20—Charas—Definition—Conviction for allegedly possessing charas—Sustainability—Stuff to fall in the category of charas should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish—Flowering and fruiting tops of cannabis plant have been defined to mean ganja—In the instant case samples on chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol—Microscopy indicated presence of characteristic cystolithic hair—Entire sample mass that was analysed by him was not resin but some quantity of it was found present in the mass—Whether by conducting certain tests only to notice the presence of cannabinols, including tetrahydrocannabinol, and the characteristic cystolithic hair of cannabis plant, which are also present in ganja and mixture, the analysts could have been in a position to conclude that the sample was charas—(No).

       Held: As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, tetrahydrocannabinol will be found even in the leaves, stem, seeds and the flowering and fruiting tops of cannabis plant. But resin is Charas, when it is separated from the plant or its aforesaid parts. Presence of resin in the aforesaid parts does not make such parts Charas nor is the resin in such parts Charas, unless separated, in view of the definition in Section 2(iii)(a) of the Act. (Para 26)

       In the present case, as noticed hereinabove, it is, made out from the reports, particularly report Ex. PW-9/D as also the testimony of the two Experts, namely Dr. R.S. Verma and Shri A.K. Wasuja, that the entire stuff was not resin and that the tests, which they conducted, were meant to ascertain whether the stuff was cannabis (Marijuana) and not for Charas. Therefore, the judgment of the Gujarat High Court, referred to above, does not help in determining the question we are dealing with. (Para 28)

       As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. (Para 29)

       According to Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of bhang it is 15 per cent, in the case of ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some, other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant. (Para 30)

        (ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20—Conscious possession—Search and seizure of charas from the van—Vehicle was stopped at the site of its search and a bag was recovered from the front portion of the van near the front seat adjacemt to driver’s seat—Appellant was driving the vehicle in question—He was all alone in the vehicle, when it was got stopped and checked and stuff was recovered—Presumption that the stuff belonged to appellant—Prosecution was not required to prove that the vehicle by which he was carrying belonged to appellant or how he happened to be in control of that vehicle—What the prosecution was required to prove was that the stuff was in his possession. (Para 38)

       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20—Recovery of charas—Information which the police claimed to have received, was that the charas was kept in the shop—Police not searching the shop and instead searching the person of the appellant—Only 50 grams charas, wrapped in a plastic envelope, was alleged to have been recovered during personal search—Held, such a small quantity can easily be planted and even manipulated to be demonstrated to have been recovered from personal search. (Para 49)