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2020 Supreme(HP) 191
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Anoop Chitkara; VJ., J.
Ram Singh - Appellant
Versus
State Of Himachal Pradesh - Respondent
Cr.MP(M) No.2340 of 2019
Decided On : 20-02-2020
Mr. Sunil Chauhan, Advocate, vice Mr. Rajesh Sharma, Advocate, for the Appellant; Mr. Narender Guleria, Additional Advocate General with Mr. Bhupinder Thakur, Deputy Advocate General and Mr. Rajat Chauhan, Law Officer, for the respondent-State, for the Respondent
The percentage of resin alone cannot be taken to determine the quantity of Charas, and the entire cannabis irrespective of the percentage of resin is considered Charas. Additionally, specific conditions must be satisfied before granting bail to individuals accused of possessing a commercial quantity of drugs or psychotropic substances under Section 37 of the NDPS Act.
Headnote:
Charas - Bail Petition - Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 20-61-85 - The court discussed the definition of Charas, the presence of resin, and the determination of commercial quantity under the Act. The court emphasized that the percentage of resin alone cannot be taken to determine the quantity of Charas, and the entire cannabis irrespective of the percentage of resin is considered Charas. The court also highlighted the conditions for granting bail under Section 37 of the Act.
Fact of the Case:
The petitioner was found in possession of 1.114 Kilograms of Charas and sought regular bail under section 439 CrPC. The police recovered the contraband from the petitioner's possession during patrolling, and the State Forensic Science Laboratory confirmed the presence of resin in the exhibit.
Finding of the Court:
The court found that the petitioner failed to clear the check-post of Section 37 of the NDPS Act, which mandates specific conditions for granting bail to individuals accused of possessing a commercial quantity of drugs or psychotropic substances. The court dismissed the bail petition, allowing the petitioner to file subsequent bail petitions.
Issues: The issues revolved around the determination of commercial quantity under the Narcotic Drugs and Psychotropic Substances Act, the presence of resin in the contraband, and the conditions for granting bail under Section 37 of the Act.
Ratio Decidendi: The court emphasized that the percentage of resin alone cannot be taken to determine the quantity of Charas, and the entire cannabis irrespective of the percentage of resin is considered Charas. The court also highlighted the specific conditions that must be satisfied before granting bail to individuals accused of possessing a commercial quantity of drugs or psychotropic substances.
Final Decision: The court dismissed the bail petition, stating that the petitioner failed to clear the check-post of Section 37 of the NDPS Act. The dismissal of the bail petition did not preclude the petitioner from filing subsequent bail petitions.
JUDGMENT
Anoop Chitkara, Vacation J. - For possessing 1.114 Kilograms of Charas, the petitioner, who is under arrest, on being arraigned as an accused in in FIR number 09/2019 registered under Sections 20-61-85 of Narcotics Drugs and Psychotropic Substances Act, 1985 , dated 7.2.2019, in the file of Police Station Shillai, District Sirmour, HP, disclosing non-bailable offences, has come up before this Court under section 439 CrPC , seeking regular bail.
2. The status report filed. I have seen the status report(s) as well as the police file to the extent it was necessary for deciding the present petition, and the same stands returned to the police official. I have heard Mr. Sunil Chauhan, learned counsel appearing for the petitioner and Mr. Narender Guleria, learned Additional Advocate General for the respondent/State.
3. Ld. Counsel appearing for the petitioner contends that although the total weight of the contraband allegedly recovered is 1.114 k.g. but the percentage of resin would bring it below the commercial quantity. Resultantly, rigors of Section 37 of Narcotic Drugs and Psychotropic Substances Act will not attract. The submission of the counsel for the bail petitioner is that percentage of resin is to be considered and not the entire bulk. He further submitted that if resin is considered then it would fall below 1 kg, which is less than commercial quantity.
Facts:
4. The gist of the First Information Report and the investigation is as follows:
a) The case of the prosecution is that more than one kg Charas has been recovered from the possession of the bail petitioner, which as per police is a commercial quantity under Section 20 (ii) (C) of Narcotic Drugs and Psychotropic Substances Act.
b) That on 7 th February, 2019, the Police party was on patrolling to detect the crime and to stop the same. When the Police party reached near a rain shelter situated 5 Kilometers ahead Shillai towards Timbi, then at 7:55 p.m. , they noticed one person carrying a back pack and standing near the shelter. Noticing such person standing alone in the cold night raised suspicion and then ASI asked him that what he is doing there in such a bad weather. The moment such person noticed the Police officials, he became perplexed and started running towards the backside of the rail shelter. After that, suspicion arose in the mind of the Police and they nabbed him. They asked him about the contents of the bag, but he could not reveal. On inquiring, he disclosed his identity as Ram Singh, the petitioner herein. On search of the bag, the Police recovered brown coloured substance in the shape of sticks, which on smelling and on the basis of experience was found to be Charas. On weighing the same, it was found to be 1.114 Kilograms.
Reasoning :
5. In the status report, the Police did not mention about any criminal history of the bail petitioner.
6. In the status report, the reference has been made to report of State Forensic Science Laboratory, Junga. Expert after conducting Scientific Chemical Test, gave his opinion as follows: 'the quantity of purified of resin as found in the exhibit stated as Charas is 33.24 % w/w. The exhibit is extract of cannabis and sample of charas'.
a) In State of H.P. v. Mehboon Khan (FB), 2014 (2) RCR (Criminal) 447 , holds as follows,
'Para 55.
d. There is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sunil's case that for want of percentage of tetrahydrocannabinol or resin contents in the samples analyzed, the possibility of the stuff recovered from the accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an offence, cannot be ruled out', is not a good law nor any such interpretation is legally possible. The percentage of resin contents in the stuff analyzed is not a deter
