Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(HP) 1244

HIMACHAL PRADESH HIGH COURT
HON’BLE MR. JUSTICE SURJIT SINGH, J. & HON’BLE MR. JUSTICE SURINDER SINGH, JJ.
SUNIL
Appellant
VERSUS
STATE
Respondent
SURINDER SINGH
Appellant
VERSUS
STATE
Respondent
PANNE LAL
Appellant
VERSUS
STATE
Respondent
RAJ KUMAR
Appellant
VERSUS
STATE
Respondent
STATE
Appellant
VERSUS
JEET RAM
Respondent
KARUNA SHANKAR PURI
Appellant
VERSUS
STATE
Respondent
Cr.Appeals No.267 & 311 of 2007, 45, 314, 363 & 500 of 2008
Decided on 11-12-2009.

Advocates Appeared:
For the Appellant(s):Ms Ritta Goswami, Advocate, in Cr.A No.267/2007. Mr. Ajay Kochhar, Advocate, in Cr.A No.311/2007. Mr. Anoop Chitkara, Advocate, in Cr.A No.45/2008. Mr. Baldev Singh & Inder Sharma, Advocates, in Cr.A No.314/2008. Mr. R.K. Bawa, Advocate General, with Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General, in Cr.A No.363/2008. Mr. Neel Kamal Sharma, Advocate, in Cr.A No.500/2008. For the Respondent-:Mr. R.K. Bawa, Advocate General, State with Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General, in Cr. Appeals No.267, 311 of 2007, 45, 314 and 500 of 2008. Mr. T.S. Chauhan, Advocate, in Cr.A No.363 of 2008.

IMPORTANT POINTS
(i) Narcotic Drugs Psychotropic Substances Act Section (iii) (a) - Charas - Held that the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resign known as hashish oil or liquid hashish - In other words, in the definition of Charas other parts of plant, like flowering and fruiting tops, leaves, or stem of cannabis plant are excluded. (Para - 5) (ii) Narcotic Drugs Psychotropic Substances Act Section (iii) (b) - Ganja - Flowering and fruiting tops of Cannabis plant have been defined to mean Ganja and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of Ganja.
(Para -6) (iii) Narcotic Drugs Psychotropic Substances Act - 2 (iii) (c) - Mixture of Cannabis - Held that when Charas i.e. resin and or Ganja i.e. flowering, fruiting tops of Cannabis plant, are mixed, with or without neutral meterial, they fell in the category of mixture of cannabis (hemp), as defined in Section 2 (iii) (c) of the Act.
(Para -7) (iv) Narcotic Drugs Psychotropic Substances Act – S/ss 2 vii (a) and 2 xxiii (a) - Charas -Ganja - Ministry of Finance, Department of Revenue, vide notification No. S.O. 527(E), dated 16th July, 1996 under clauses vii (a) and xxiii(a) of section 2 of the Act- Small and commercial quantities of Charas and hashish, which are referred to in entry No. 23 small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of Ganja, the small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55.
(Para-S)(v) Narcotic Drugs Psychotropic Substances Act Section (iii) (a) - Charas -Held that 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 definition in Section-2 (iii) (a) of the Act. (Para -6)(vi) Narcotic Drugs Psychotropic Substances Act 'Section (iii) (a) - Charas - Ganja or mixture - Bhang- Held that specific category of a Cannabis product, like Charas, ganja or mixture as defined in Section 2 (iii) of the Act, or anything, like bhang etc. can also be determined, with reference to the percentage of tetrahydrocannbinol in the stuff - According to Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, In the case of:
(a) Bhang: It is 15 percent (b) Ganja : It is about 25 percent (c) Charas: It is between 25 and 40 percent.(vii) Narcotic Drugs Psychotropic Substances Act Section (iii) - Cannabis (hemp) Bhang: Held that the 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 Further observed that finally green leaves of Cannabis pressed into mass would also give a look similar to that of Charas - Possession of which is not an offence.
(Paras 30 & 16) WORDS AND PHRASES Narcotic Drugs Psychotropic Substances Act Section (iii) clauses, a,b & c - Marijuana - Drug - Means the dried leaves and flowering tops of the pistillate hemp plants that are the source of the drug cannabin and are sometimes smoked in cigarettes with consequent effect of the drug on the higher nerve centres to produce peculiar psychic disturbances - The other words for "Marijuana", are bhang, ganja and hashish. That means "Marijuana" includes not only Charas, ganja and mixture, as defined in clauses (a), (b) & (c) of Section 2(iii) of the Act respectively, but also dried leaves and other parts of cannabis plant - Defined also in (Webster's Third New International Dictionary, Volume II.) (Paras - 19, 23, 24, & 25)

Headnote:1. Narcotic Drugs Psychotropic Substances Act Section 20 and 36-B and Criminal Procedure Code S/s .374 -Appeal - Appellants have been convicted of offences Under Section 20 of the Act - Allegdly for possessing charas - Appeal (Para - 1)
       2. Narcotic Drugs Psychotropic Substances Act Section-36-B and Criminal Procedure Code SI s 374 Appeal - Grounds of appeal -Question whether by conducting certain tests only to notice presence of cannabinols, including tetrahydro-cannabionls, and the choroctristic cytolithic hair of cannabis plant, which are also present in ganja and mixture, as defined in S-2 (Hi) (b) & (c) besides bhang stem and seeds of cannabis plant, the analysts could have been in position to conclude that the sample was charas on the basis of such tests.
       3. Narcotic Drugs Psychotropic Substance Act S/ss 20 and 36-B and Criminal Procedure Code S.374 - Appeal - Analysis of samples• - Cannabinols etc. presence of which is common in both bhang and charas - Charas Recovery of -Held that experts reports in none of these six cases prove that the stuff recovered from the appellants accused was charas - The possibility of the stuffs recovered from them being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out - Further held that in the case of Raj Kumar case registered at police station (Una) it was mentioned that in case a search is conducted - Charas could be recovered from the shop of appellant But instead of searching the shop charas is stated to have been recovered from the person of the appellant, which is suggestive of some hanky panky especially when only 50 grams Charas, wrapped in a plastic envelope is alleged to have been recovered during personal search - Such a small quantity can easily be planted and even manipulated to be demonstrated to have been recovered from personal search by sleight of hand - Judgments of trial Courts, convicting and sentencing the appellants are set aside and they are acquitted - Appeal state V/s Jeet Ram is dismissed Appeals disposed of accordingly.
       (Paras - 31, 47, 4S, 49, 50, 51 & 52)

JUDGMENT

Surjit Singh, J.- These six appeals, particulars whereof are given in the title of this judgment, are being disposed of together, because a common question of law and facts is raised in all of them, though in a couple of appeals a few other questions/points have also been raised, which will be dealt separately in the later part of it.

2. First, we maynotice the facts, which have given rise to common question of law and facts in all the six cases. After dealing with the common question of law, we will sum up the facts of those individual cases in which a few other questions have been raised.

3. In five of the six cases, appellants have been convicted of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, for allegedly possessing Charas. In the sixth case, accused has been acquitted and the State has appealed against his acquittal. 4.

4. “Charas” is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, which reads as follows: “(a) charas, that 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.”

5. According to the definition of “Charas”, as given in Section 2(iii)(a) of the Act, the 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. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant.

6. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja.

7. When Charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act.

8. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in Sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No.S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For Charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No.23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55.

9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh:

(1). Sunil versus State (Cr.A No.267/2007)

(2). Surinder Singh versus State (Cr.A No.311/2007)

(3). Panne Lal versus State (Cr.A No.45/2008)

(4). State versus Jeet Ram (Cr.A No.363/2008)

10. In all the aforesaid cases, reports given by the abovesaid Director of the Forensic Science Laboratory are similar, rather verbatim the same. They read as follows:

RESULTS OF THE EXAMINATION

Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microsco

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