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2022 Supreme(UK) 210
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SANJAYA KUMAR MISHRA, ALOK KUMAR VERMA, JJ.
State of Uttarakhand - Appellant
Versus
Sunildas - Respondent
Government Appeal No.66, 67 of 2020
Decided on : 12-07-2022
Advocate Appeared:
For the Appellant : Mr. J.S. Virk,
For the Respondent: Mrs. Shruti Joshi.
Possession of Bhang is not an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Possession of Bhang - Section 8, Section 20 - Summary of Acts and Sections: The court discussed the definitions of cannabis (hemp) and cannabis plant under Section 2 (iii) and Section 2 (iv) of the Act, 1985. It highlighted that possession of Bhang is not prohibited by the Act, 1985 and is not an offence under the Act, 1985.
Fact of the Case:
The police found dry leaves of Bhang in possession of the accused persons. The prosecution sent the recovered articles for chemical analysis, which confirmed them as Bhang. The accused persons denied the charges and claimed to be tried.
Finding of the Court:
The court held that the possession of Bhang is not an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Issues: The main issue was whether the possession of Bhang by the accused persons constituted an offence under the Act, 1985.
Ratio Decidendi: The court interpreted the definitions of cannabis (hemp) and cannabis plant under the Act, 1985 and concluded that possession of Bhang is not prohibited by the Act, 1985 and is not an offence under the Act, 1985.
Final Decision: The appeals were dismissed, and the respondent-Sunildas's bail was ordered to be cancelled, while the respondent-Shambhudas was ordered to be released from jail.
JUDGMENT :
ALOK KUMAR VERMA, J.
These two Government Appeals are directed against a common judgment dated 09.01.2020, passed by the learned District & Sessions Judge/Special Sessions Judge, Pauri Garhwal in Special Sessions Trial No.1 of 2019, “State vs. Sunildas”, and, in Special Sessions Trial No.2 of 2019, “State vs. Shambhudas”, whereby, the learned trial court has acquitted the respondents-accused persons from the charge of Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, “the Act, 1985”). These two Government Appeals are being decided by this common judgment.
2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that, on 29.12.2018, Sub-Inspector Ashok Siraswal (PW-1) along with other police constables were going to Station Road. When they reached near Tourist Sweet Shop, two persons were seen sitting carrying bags. The police party informed Sub-Inspector Sandeep Sharma (PW-2) and Constable Ajay Kumar (PW-4). Sub-Inspector Sandeep Sharma (PW-2), Constable Madhusudan (PW-3) and Constable Ajay Kumar (PW-4) came at the spot. The Circle Officer of Police was informed. J. R. Joshi, the Circle Officer of Police, Kotdwar (PW-6) came at the spot. During search before a public witness, namely, Pradeep Singh (PW-5), dry leaves of Bhang were recovered from the bags of the respondents. On weighing, the weight of the dry leaves of Bhang, kept in the bag of Sunildas, was found to be 14.200 grams, and, weight of the dry leaves of Bhang, kept in the bag of Shambhudas was found to be 12.700 grams.
3. The respondents were arrested. The recovered articles were sealed. The said recovered articles were taken into possession vide recovery memo (Ext. Ka.6). The First Information Report was lodged. The recovered articles were sent to the Forensic Science Laboratory for chemical analysis. On chemical analysis, identity of the said articles have been established as Bhang. After completion of investigation, the respondents-accused persons were charge-sheeted.
4. The accused persons denied the charges and claimed to be tried.
5. In order to bring home the guilt of the accused persons, the prosecution examined as well as ten witnesses.
6. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein they denied the entire evidence of the prosecution.
7. The learned trial court has held that the possession of Bhang is not an offence under the Act, 1985.
8. Heard the learned counsel for the parties.
9. Mr. J.S. Virk, the learned Deputy Advocate General appearing for the appellant argued that there are enough material evidence on record to corroborate the prosecution case, and, to prove the involvement of the respondents in commission of the crime, and, the learned trial court has failed to appreciate the evidence of the report of the Forensic Science Laboratory, according to which, the recovered contrabands were found as Bhang, and the said Bhang were recovered from the possession of the respondents.
10. On the other hand, Mrs. Shruti Joshi, Advocate and Mrs. Neelima Mishra, Advocate, appearing for the respondents, have supported the impugned judgment.
11. The law is well settled that order of acquittal strengthens the presumption of the innocence of the accused persons. It is equally the duty of the court to see that the guilty do not escape punishment.
12. Admittedly, the case of the prosecution is that the dry leaves of Bhang were recovered from the possession of the respondents-accused persons.
13. Cannabis (hemp) and cannabis plant are two different contrabands. Cannabis (hemp) is defined in Section 2 (iii) of the Act, 1985, which reads as under :-
“2(iii) "cannabis (hemp)" means-
(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 know as hashish oil or liquid hashish;
(b)
