The nature of contraband under the NDPS Act must be seen as per the statutory definition, and procedural compliance with the Act, including communication of rights to the accused, is crucial.

JUDGMENT :

HARPREET SINGH BRAR, J.

1. The above mentioned appeal has been directed against the judgment of conviction and order of sentence dated 16.10.2013 passed by Special Court, Sri Muktsar Sahib, in FIR No. 79 dated 12.07.2011, under Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ for short), registered at Police Station Lambi, vide which the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- for the commission of offence punishable under Section 22 of the Act and in default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of 01 year.

FACTUAL BACKGROUND

2. Brief facts of the case are that on 12.07.2011, ASI Kabul Singh (investigating officer) along with HC Sukhjit Singh was patrolling the area of village Killianwali towards village Lohara. The police party spotted the accused carrying a plastic bag in his left hand at the bridge of the canal in the area of village Lohara. The accused was stopped on suspicion of him being in possession of intoxicating substances. He was informed of his legal right to be searched before a Gazetted Officer or a Magistrate. The accused reposed faith in the investigating officer and a consent memo was prepared on which thumb impression of the accused was placed. The same was attested by HC Sukhjit Singh and HC Tarsem Singh.

A search of the bag was conducted and 3kg of Charas was recovered. A sample of 20g was separated and both the parcels were sealed bearing with the impression ‘KS’. A ruqa was sent to the police station for the registration of the FIR. An arrest memo was prepared and the accused was arrested. Both the recovery memo and the arrest memo bear the thumb impression of the accused.

Thereafter, at the police station, the parcels were presented to ASI/SHO Iqbal Singh who further sealed both the parcels and added a seal bearing impression ‘IS’ on it. The SHO took the case property in possession vide memo attested by the investigating officer. The case property was produced before the Illaqa Magistrate who separated 20g of Charas as representative sample and placed his own seal bearing impression ‘HA’ on the parcel. The case property was then deposited with MHC Pritpal Singh who handed it over to HC Lekh Raj for depositing the same in the office of the Chemical Examiner Punjab, Chandigarh.

3. After complying with the provisions of Section 207 Cr.P.C. charge was framed against the accused for the commission of offence punishable under Section 22 of the Act, to which the accused did not plead guilty and claimed trial.

4. In order to prove its case, prosecution examined as many as five witnesses. Accused in their defence examined HC Surjit Singh.

5. After hearing arguments of both sides and perusing the evidence on record, the trial Court convicted and sentenced the appellant/accused as discussed above.

CONTENTIONS

6. Learned counsel for the appellant has relied upon a Division Bench judgment of the Himachal Pradesh High Court in Nagender Shah vs. State of H.P. 2010 (4) RCR (Criminal) 194 and the order passed by this Court in CRM-22440-2017 in CRA-D-163-DB-2017, Varinder Kumar vs. State of Punjab. On the basis of these decisions, learned counsel for the appellant contends that as per Ex.P11, the report of the Chemical Examiner, the percentage of resin content in the sample is 24%. As such, the seized contraband from the appellant cannot be termed as ‘charas’. He has drawn the attention of the Court towards Para 25 of the judgment passed in Nagender Shah’s case (supra) which is reproduced here as under:

“30. 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 indi