The presence of resin in the recovered substance is crucial in determining the nature of the substance, and the percentage of resin contents is not a determinative factor for the offense under Section 20 of the NDPS Act.

JUDGMENT :

Dharam Chand Chaudhary, J.

1. State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Special Judge, Kullu, Division at Kullu has erroneously acquitted the accused persons of

the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as =the NDPS Act' in short), vide impugned judgment dated 1.12.2012 passed in Sessions trial No. 148 of 2012.

2. The legality and validity of the impugned judgment has been questioned before this Court on several grounds, however, mainly that the trial Court has miserably failed to appreciate the evidence available on record in its right perspective and also the law applicable to the case in hand.

3. The facts, in a nut shell, are that on 13.8.2009, PW-6 ASI Daya Ram accompanied by LHC Pinki Devi, HC Lal Singh (PW-2) and Constable Dinesh Kumar (PW-1) was on routine checking duty in front of the gate of Police Station, Manali. Around 4:50 PM, jeep bearing registration No. HP-66-0852 coming from Kullu side arrived at the spot where the vehicles were being checked by the aforesaid police party. Accused Om Parkash (hereinafter referred to as =accused No. 3') was on the wheel of the jeep whereas his co-accused Randhir and Sandeep (hereinafter referred to as accused Nos. 1 & 2, respectively) were occupying the same. It was Janmashtami festival on that day, therefore, no one was available for being associated as independent witness. PW-6 ASI Daya Ram who is also Investigating Officer had therefore associated PW-1 Constable Dinesh Kumar and PW-2 HC Lal Singh as witnesses and offered first his search to the accused persons vide memo Ext. PW-1/A. Nothing incriminating was recovered from his possession, therefore, he checked the jeep thereafter. During checking, a dark grey coloured bag was found near the gear box of the jeep. On opening the said bag, charas in the shape of rounds was found kept therein. When the recovered charas weighed, it was found to be 200 grams in weight. After observing the sampling and sealing process, PW-6 ASI Daya Ram has filled in the NCB-I form Ext. PW-6/A in triplicate, the sample whereof is Ext. PW-1/G. The seal after its use, was handed over to PW-1 Const. Dinesh Kumar for safe custody. The recovered charas was taken into possession vide recovery memo Ext. PW-1/B. The jeep was also taken into possession vide memo Ext. PW-1/C. It is, thereafter, rukka Ext. PW-6/B was prepared and handed over to PW-2 HC Lal Singh for being taken to the Police Station, Manali for registration of the case. On the basis thereof, the then Moharar Constable PW-4 Sher Singh has registered the FIR Ext. PW-4/A. PW-6 ASI Daya Ram has arrested all the accused persons. They were apprised about the grounds of arrest i.e. the offence they committed and the provision of sentence provided under the NDPS Act therefor vide memo Exts. PW-1/D, PW-1/E and PW-1/F. The information of their arrest was given to the persons of their respective choice. The statements of the witnesses were recorded.

4. On completion of the investigation at the spot, the case property was produced before PW-7 ASI Ram Swaroop, the then officiating SHO, who resealed the same with seal ?M? and also filled in the relevant columns of the NCB-I form Ext. PW-6/A. The facsimile of seal ?M? was drawn separately which is Ext. PW-7/A. The case property was thereafter deposited in the malkhana with PW-4 MHC Sher Singh.

5. On completion of the further investigation, such as preparation and submission of special report (Ext. PW-3/A) and receipt of the report of Chemical Examiner (Ext. PX), the report under Section 173 Cr.P.C. was filed against all the three accused in the trial Court.

6. Learned Special Judge on appreciation of the report and the documents annexed therewith has concluded that prima-facie, a case under Section 20 of the NDPS Act is made out against all the accused. Charge against each of them was framed accordingly. Since they pleaded not guilty to t