State of HP Vs Mehboon Khan 24.09.2013 Full Bench

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State of HP Vs Mehboon Khan 24.09.2013 Full Bench

Before :- A.M. Khanwilkar, C.J., VK Sharma, and Dharam Chand Chaudhary, JJ.
Cr. Appeal No. 763 of 2002. D/d. 24.9.2013. Cr. Appeal No. 195 of 2003. Cr. Appeal No. 541 of 2004.

ACTS/RULES

Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 22 and 20

Narcotic Drugs and Psychotropic Act, Section 2(iii) and (xxiv)

Evidence Act, Section 45

Narcotic Drugs and Psychotropic Substances Act, Sections 2(iii) and (xxiv)

Criminal Procedure Code, Section 293

For the Appellant :- Sharwan Dogra, Advocate General with Mr. D.C. Pathik, Additional Advocate General, Mr. P.M. Negi, Ms. Parul Negi, Dy. Advocate Generals, Mr. J.S. Rana, Assistant Advocate General and Mr. Vivek Singh Thakur, Advocates.
For the Respondent :- M/s. Bhupender Ahuja, Parneet Gupta, Ramesh Sharma and G.R. Palsra, Advocates, Mr. Anup Chitkara, Advocate as amicus curiae.

Dharam Chand Chaudhary, J. –

FACTS OF THE CASE

The State of Himachal Pradesh aggrieved by the acquittal of the respondents (hereinafter referred to as the `accused persons’) has preferred these appeals on several grounds, however, mainly that the evidence available on record and the legal provisions have not been appreciated properly and in its right perspective.

2. While in Cr. Appeal No. 763 of 2002, the respondent-accused has been acquitted for want of proof qua compliance of the provisions, mandatory in nature contained under Section 50 of the Act, in Cr. Appeal No. 195, the accused persons have been acquitted for want of cogent and reliable evidence to show that the contraband, allegedly charas, has been recovered from their conscious and exclusive possession, whereas in criminal appeal No. 541 of 2004 on the ground that the evidence produced by the prosecution is not sufficient to bring the guilt home to the accused.

3. When all the three appeals were taken up for hearing by a Division Bench of this Court, on behalf of the accused persons reliance was placed on a judgment of this Court in Sunil v. State of Himachal Pradesh, latest, HLJ 2010 HP 207 to substantiate their contentions that the stuff allegedly recovered from them has not been proved to be charas within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the `NDPS Act’ in short).

4. On the other hand, learned Additional Advocate General canvassed that the Division Bench of this Court which delivered the judgment in Sunil’s case supra as well as in Criminal Appeal No. 391 of 2002, titled State of HP v. Subhash Sharma @ Bhasi, has not correctly appreciated as to what constitutes the offences punishable under Sections 20 & 22 of the NDPS Act and what in legal parlance `charas’ means and what should be the nature of the evidence to prove the commission of such offence, therefore, the law laid down needs reconsideration.

5. The Division Bench after having taken into consideration the definition of cannabis enshrined under Section 2 (iii) of the NDPS Act and in the documents issued by the United Nations Office on drugs and crime and also Manual for Identification and Analysis of Cannabis and Cannabis Products issued by United Nations Office on Drugs and Crime as well as the law laid down in various judicial pronouncements by the apex Court and other High Courts, while interpreting the scope of Section 293 of the Code of Criminal Procedure and also Section 46 of the Indian Evidence Act has concluded, prima facie, that an expert is not required to give details of the tests carried out by him or even to give the result of each and every test and if the report discloses that the expert on visual examination and carrying out certain tests has found the stuff as charas within the meaning of the Act, his opinion deserves to be respected like the opinion of an expert, of course the opinion so expressed by the expert is not binding on the Court and in a given case the Court may refuse to accept the report. The Division Bench which has referred the matter for opinion of the larger Bench has also disagreed with the observations in Sunil’s case that `finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas’ and that `mere presence of tetrahydrocannabinol in the sample may not be sufficient to identify the same to be that of Charas as percentage of tetrahydrocannabinol varies in Charas, Ganja, Bhang or mixture of the same’ and that `Cystolithic hair being fiber of cannabis plants are bound to be present in all the products of cannabis.’ The Division Bench has further disagreed with the ratio of the judgment in Sunil’s case that the reports of the experts in that case and five other cases decided therewith were not sufficient to prove that the stuff recovered was `Charas’ alone. Therefore, the Division Bench vide its order passed in these appeals on 20.9.2012 has referred the judgment in Sunil’s case supra for re-consideration by a Larger Bench of this Court for the following reasons :

* That the judgment has not taken into consideration Section 293 of the Code of Criminal Procedure Code.

* That the judgment has not taken into consideration the various reports of the United Nations Office on Drugs and Crime and has relied upon the report text books, which are basically on Medical Jurisprudence.

* That the Division Bench has erred in holding that the percentage of tetrahydrocannabinol (THC) in Bhang is 15%, in Ganja is 25% and in case of Charas is 25 to 40%. The presence of cystolithic hair in a sample is clearly indicative that it is the sample of Cannabis plant because such hair is present only in Cannabis plants. When after finding cystolithic hair, the Expert also gives the resin content, it is more than sufficient to hold that the sample is of Charas and the view of the Expert should not normally be called into question.

38. In addition thereto, we are also of the view that the judgment in Sunil’s case has not been properly appreciated in later judgments of this Court and also by the learned trial Courts. We may remind ourselves that in the aforesaid case, the two Experts, who had given the opinion in all the six cases, were examined. In none of the cases referred to in Sunil’s case, the percentage of resin was specifically indicated. The judgment in Sunil’s case is based on the reports. We are of the considered view that if the percentage of resin is specifically indicated, then that quantity of resin would definitely be Cannabis resin. This aspect of the matter also requires to be looked into.

39. Another issue which is causing great concern is whether the Court should blindly follow the judgment in Sunil’s case and acquit the accused or whether they should use their powers under Sections 165 of the Evidence Act and 311 of the Criminal Procedure Code and send the second sample and/or bulk charas for reanalysis. Prima facie, we are of the view that persons who are indulging in such nefarious activities should not be acquitted on technical grounds of the inadequacy of the report of the Chemical Examiner. By sending the second sample and/or the bulk charas, the truth can be unraveled. In our opinion, all these questions are required to be considered by a larger Bench so that law is laid down for the State of Himachal Pradesh.

40. We are, therefore, of the view that the corrections of the judgment in Sunil v. State of Himachal Pradesh, 2011(5) RCR (Cr) 726 : Latest HLJ (2010) HP 207, needs to be reconsidered. Further, the Full Bench may also consider the question that if a report is inadequate, should the second sample and/or the bulk charas be sent to the Chemical Examiner for reexamination. Papers may be put up before Hon’ble the Chief Justice for appropriate orders.”

6. In Sunil’s case supra and the other three criminal appeals i.e. Surinder Singh v. State (CriMinal Appeal No. 311/2007), Panne Lal v. State (Cr. A No. 45/2008) and State v. Jeet Ram, (Cr. A No. 363/2008) decided therewith, report given by the expert reads 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. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below:

Exhibit-1 is a sample of charas.”

Shri RS Verma, who signed these reports, as Director of the said Forensic Science Laboratory, was examined as a witness, in two cases. In one case, i.e. Panne Lal v. State, (Cr. A. No. 45 of 2008), he was examined as a witness of the prosecution and in another, i.e. State v. Jeet Ram, (Cr. A. No. 363 of 2008), he was examined as a witness of the defence.

7. In remaining two cases decided together with Sunil’s case, i.e. Cr. A No. 314 of 2008, Raj Kumar v. State and Cr. A No. 500 of 2008, Karuna Shankar Puri v. State, the reports read as follows :

Raj Kumar’s case:

“Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/1 & P/2 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in both the samples. The microscopic examination indicated the presence of cystolithic hair in both the samples. Charas is a Resinous mass and resin is an ingredient of Charas which on testing was found present. The quantity of Resin in cannabis Plant/Charas sample varies from one area to the other area. The result thus obtained is given below.

For both the samples.

The exhibits P/1 & P/2 are the samples of CHARAS.”

Karuna Shankar Puri’s case :

“Various scientific tests such identification, chemical and chromatographic were carried out in the Laboratory with the exhibit P/1 reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol inn the sample. The microscopic examination indicated the presence of cystolithic hair in the sample. The result thus obtained is given below. The exhibit marked as P/1 is a sample of CHARAS.”

8. Shri RS Verma, Director of Forensic Science Laboratory has been examined as a prosecution witness in Criminal appeal Panne Lal v. State and as a witness of the defence in another appeal State of HP v. Jeet Ram decided with Sunil’s case supra. Similarly, Mr. A.K. Wasuja, Chemical Examiner by whom, the aforesaid two reports in Raj Kumar’s case and Karuna Shankar Puri’s case are assigned was summoned as Court witness and his statement recorded in this Court by one of the Members (Hon’ble Mr. Justice Surjit Singh) of the Division Bench which rendered judgment in Sunil’s case to seek clarification as to how he came to the conclusion that the examined stuff was Charas. On analyzing the reports and also the expert opinion having come on record by way of the testimony of Shri RS Verma and Shri A.K. Wasuja, aforesaid, it was held as under:-

“13. From the reports, as reproduced hereinabove, it is clear that the stuff was opined to be Charas, on account of presence of cannabinol, including tetrahydrocannabinol and cystolithic hair. Report Ex. PW-9/D, in CriMinal Appeal No. 314 of 2008, titled as Raj Kumar v. State, given by Chemical Examiner Shri A.K. Wasuja, who was examined as a Court witness by a Single Judge Bench of this Court, states that Charas is resinous mass and resin is an ingredient of Charas, which on testing was found present. His report suggests that entire sample mass that was analysed by him was not resin but some quantity of it was found present in the mass. Report also suggests that term “Charas”, used by its author, namely Court witness Shri A.K. Wasuja, is different from the definition of “Charas”, as given in Section 2(iii)(a) of the Act, as reproduced hereinabove, because as per definition resin is not an ingredient of Charas. But, as per definition in Section 2(iii)(a) of the Act, “Charas” means whole resin, in whatever form, whether crude or purified, of cannabis plant.”

9. In Sunil’s case supra, the Division Bench while dealing with the question that mere presence of cannabinols, including tetrahydrocannabinol and cystolithic hair is sufficient to form an opinion that the stuff analyzed was Charas, in the light of the reports and also the evidence including the testimony of expert witness namely Shri RS Verma and Shri A.K. Wasuja, and taking into consideration the definition of tetrahydrocannabinol as given in New Encyclopedia Britannica, 15th Edition, Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, 6th Edition, Principles and Practice of Forensic Medicine, First Edition, by Dr. Umadethan, and Lyon’s Medical Jurisprudence in India, Tenth Edition, has held as follows:

“26. As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, 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 the definition in Section 2(iii)(a) of the Act.

27. Learned Advocate General, who appeared for the State, submitted that a similar question was raised before a Division Bench of Gujarat High Court, in Dhanpalsingh Barunsingh Thakur and others v. State of Guajrat, 1995 CrLJ 3751, and the learned Judges, relying upon the report of the Chemical Examiner, held that the entire sample stuff was Charas. A reading of the judgment shows that the Expert, who appeared as PW-1 based his opinion not only on his own tests but also the report of Botanical Expert. The substance was found to contain cannabis species, as it gave positive result, when subjected to para-aminon phenol test and thin layer chromatography test. Contention raised in that case was that the Expert had not given the opinion that the substance was resin obtained from cannabis plant or a concentrated preparation and resin known as hashish oil or liquid hashish. No doubt, the Expert in that case did not specifically say that the sample stuff was resin of cannabis plant but he conducted two tests, i.e. para-aminon phenol test and thin layer chromatography test and came to the conclusion that the sample was Charas, which meant resin.

28. In the present case, as noticed hereinabove, it is made out from the reports, particularly report Ex. PW-9/D as also the testimony of the two Experts, namely Dr. RS Verma and Shri A.K. Wasuja, that the entire stuff was not resin and that the tests, which they conducted, were meant to ascertain whether the stuff was cannabis (Marijuana) and not for Charas. Therefore, the judgment of the Gujarat High Court, referred to above, does not help in determining the question we are dealing with.”

10. The law laid down by a Division Bench of Gujarat High Court in Dhanpalsingh Barunsingh Thakur & Others v. State of Gujarat, 1995 CRLJ 3751 GUJ that “.. When the substance found to contain cannabis species and when it stood a positive result of para-aminon phenol test and thin layer chromatography test, it is a charas as defined in clause (iii) of Section 2 of the NDPS Act. It is not necessary for the expert to further state in his opinion that it is separated resin of cannabis, which is known as charas. Opining that the substance is charas itself conveys that it is a 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. It is not necessary to state in the opinion that it is separated resin of cannabis plant as contended by Mr. Keshwani. What is required to be proved by the prosecution is whether the substance is cannabis or not and it is proved beyond reasonable doubt that substance sent to FSL for analysis is cannabis/charas as defined in clause (iii) of Section 2 of NDPS Act. Thus we do not find any substance in this contention of Mr. Keshwani.”, has been distinguished by the Division Bench rendered the judgment in Sunil’s case on the ground that the expert in that case had based the opinion not only its own tests but also the report of botanical expert and the substance when subjected to para – aminon phenol test and thin layer chromatography test was found to contain cannabis species, therefore, irrespective of the expert in that case having not specifically said that the sample stuff was resin of cannabis plants. The opinion based upon the results of two tests i.e. para – aminon phenol test and thin layer chromatography test, in the opinion of the Division Bench was sufficient to arrive at a conclusion that the sample stuff analyzed in that case was Charas.

11. In Sunil’s case, after noticing from the reports that tetrahydrocannabinol and cystolithic hair were present in the sample stuff, the Division Bench has concluded as under :

“31. In view of the abovestated position, we hold that Experts’ reports in none of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility of the stuff recovered from them being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.”
12. The reference hereinabove made to Larger Bench in these appeals and the law laid down by the Division Bench of this Court in Sunil’s case supra take us as to what `cannabis’ means in legal parlance.

Discussions:

13. Before adverting to various provisions under the NDPS Act relevant in the context of point in issue, we deem it appropriate to reproduce the statement of objects and reasons for which this Act has been enacted by the Parliament :

“STATEMENT OF OBJECTS AND REASONS

The statutory control over narcotic drugs is exercised in India through a number of Central and State enactments. The principal Central Acts, namely, the Opium Act, 1857, the Opium Act 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With a passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in the existing laws have come to notice, some of which are indicated below:

(i) The scheme of penalties under the present Acts is not sufficiently deterrent to meet the challenge of well organized gangs of smugglers. The Dangerous Drugs Act, 1930 provides for a maximum term of imprisonment of 3 years with or without fine and 4 years imprisonment with or without fine for repeat offences. Further, no minimum punishment is prescribed in the present laws, as a result of which drug traffickers have been some times let off by the courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighbouring countries and destined mainly to Western countries.

(ii) The existing Central laws do not provide for investing the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc., with the power of investigation of offences under the said laws.

(iii) Since the enactment of the aforesaid three Central Acts, a vast body of international law in the field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions which entail several obligations which are not covered or are only partly covered by the present Acts.

(iv) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. There is no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention on Psychotropic Substances, 1971 to which India has also acceded.

2. In view of what has been stated above, there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which, inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drugs abuse, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and psychotropic substances to which India has become a party.”
14. Section 2 (ix) of the Act defines `International Convention’ as follows :-

“International Convention” means –

(a) the Single Convention on Narcotic Drugs, 1961 adopted by the United Nations Conference at New York in March, 1961;

(b) the protocol, amending the Convention mentioned in sub-clause (a), adopted by the United Nations Conference at Geneva in March 1972;

(c) the Convention on Psychotropic Substances, 1971 adopted by the United Nations Conference at Vienna in February, 1971; and

(d) any other international convention, or protocol or other instrument amending an international convention, relating to narcotic drugs or psychotropic substances which may be ratified or acceded to by India after the commencement of this Act.”
15. Now, while coming to the NDPS Act, Section 2(iii) defines `cannabis’ as follows :

“(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 known as hashish oil or liquid hashish;

b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.”
16. Section 2(iv) defines the `cannabis plant’ as under :

” `cannabis plant’ means any plant of the genus cannabis.”
Regarding Single Convention:

17. The relevant provisions under the NDPS Act discussed hereinabove are derived from `Single Convention on Narcotic Drugs, 1961. Para 1 subparagraph (b) of the convention defines `cannabis’ as under :-

“(b) “Cannabis” means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.”
18. Within the meaning of Single Convention `cannabis’ which is called `Indian Hemp’ is a `drug’. The Convention further clarifies that cannabis does not refer only to dried tops of the `pistillate’ (female) cannabis plant, but all tops including those, which are not yet dried as well as those of the male plants. The convention further tells us that tetrahydrocannabinol; one of the cannabinols, is a psychoactive principle of cannabis. The seeds and the leaves of the plant when not accompanied by the tops are excluded from the definition of `cannabis’. The provisions of the Convention concerning cannabis, therefore, do not apply to such leaves. `Marihuana’ cigarettes containing material derived only from the leaves are consequently not subject to the provisions governing cannabis. As noticed hereinabove, the Convention excludes from its definition of cannabis the tops of plant from which the resin has been extracted and further takes note that this exclusion is justified on the ground that in view of the resin having already been extracted from these tops, the same contain only a very insignificant quantity of psychoactive principle. Tops from which the resin has been extracted appeared to be of little practical importance; but the exclusion, if taken over by national legislation, in the wisdom of the Convention may result in difficulties in the fight against the illicit traffic of drugs.

19. Paragraph 1 subparagraph (d) of convention defines the `cannabis resin’ as follows :

“(d) “cannabis resin” means the separated resin, whether crude or purified, obtained from the cannabis plant.”

20. The Single Convention applies its comprehensive control regime to cannabis resin of the male as well as the female plants. It does not exclude any part of the cannabis plant as source of the resin. It states that cannabis resin means “the resin obtained from the cannabis plant”. The Convention further tells that the resin, however, becomes `cannabis resin’ only when it is `separated’ from the plant and without separating it, the same remains the part of the cannabis plant. The separated resin is `cannabis resin’ not only when it is purified but also in its `crude’ state i.e. when it is still mixed with other parts of the plant.

Appreciation of the law laid down by this Court in Sunil’s case and the decisions earlier and later to it.:

21. Here we would deem it appropriate to discuss the view of the matter taken by the Division Bench of this Court in Sunil’s case and other decisions rendered by this Court on the points in issue earlier to this decision and in later judgments also.

Analysis of Sample Stuff – no legal requirement of presence of particular percentage of resin to be there the sample

22. In Sunil’s case, it has been held that tetrahydrocannabinol is active agent and present to the extent of 15% in Bhang, 25% in ganja and 25 to 40% in Charas. Similarly, cystolithic hair being fabric of cannabis plant, its presence in the stuff analyzed is bound to come. Therefore, as per the ratio of this Judgment, mere presence of tetrahydrocannabinol or cystolithic hair detected by the expert after conducting requisite tests during the course of analysis of the sample stuff is not sufficient to believe that the stuff analyzed is charas alone. Also that `finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas’. As per further ratio of this judgment, the report should indicate the percentage of resin in the sample stuff and in case the report only discloses the mere presence of resin in the sample, the entire stuff cannot be believed to be resin.

Percentage of resin contents not a determinative factor of small quantity/above smaller quantity and less than commercial quantity and the commercial quantity.

23. Therefore, in Sunil’s case, it is held that mere presence of tetrahydrocannabinol and cystolithic hair in the stuff analyzed is not sufficient to believe that the entire stuff is charas and that the charas in the stuff analyzed would be to the extent of the contents of the percentage of resin found present in the stuff.

24. The view of the matter taken by a Division Bench of this Court in an earlier decisions rendered in Dharampal v. State of HP, 2006(2) SCT 504 : 2007(2) SLC 19, reads as follows :

“11. The stuff recovered from the appellants has only one psychotropic substance, i.e. `Charas’ (resin) in it. About the rest of the stuff there is no report and, therefore, there is no escape from assumption that the same is a neutral material. Now, if it has only one psychotropic substance, i.e. `Charas’ (resin), the nature of the quantity is to be determined by reference to the limits of `small quantity’ and `commercial quantity’ prescribed for `Charas’, which means resin of cannabis plant.

12. As a result of the above discussion, we hold that the stuff, allegedly recovered from the appellants, contained `Charas’ the quantity of which was lesser than `commercial quantity’ but more than the `small quantity’ and hence the offence allegedly committed by them is punishable with rigorous imprisonment which may extend up to ten years and fine which may extend to rupees one lakh.”

25. In Dharampal’s case cited supra, the recovered charas was 1 kilogram 600 grams. The resin contents on analysis of the sample stuff were found to the extent of 28.92%. Therefore, in the bulk recovered in that case it was held that Charas was only 28.92%, hence a case involving non-commercial quantity punishable with lesser term of imprisonment and lesser amount of fine, however, no findings were recorded with regard to the nature of the remaining recovered stuff as to whether it was neutral substance or not.

26. In a subsequent judgment of this Court in Kamaal Chand v. N.C.B. Chandigarh, 2008(3) Crimes 354 (HP), while disagreeing with the arguments addressed on behalf of the appellant-accused therein that the sample stuff contained only 2.5% tetrahydrocannabinol whereas in the charas its percentage should have been minimum 8%, the learned Single Judge taking a view contrary to the one in Dharampal’s case supra, has held as under :

“7. Learned counsel for the appellant argued that as per report Ex. PT, the sample stuff contained only 2.5 per cent THC, whereas the Charas should contain minimum 8 per cent of THC. In support of his contention, he referred to a couple of treatises. The argument cannot be accepted for the simple reason that the Courts are supposed to go by the definition of “Charas” as given in the Narcotic Drugs and Psychotropic Substances Act. As per definition given in Section 2(iii)(a), Charas is 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. The Chemical Examiner, vide report Ex. PT, has given definite opinion that the sample stuff was Charas. The appellant did not question the report during the course of trial by summoning the Chemical Examiner or by leading some other evidence, indicating that the stuff was not Charas. Therefore, we are of the considered view that in view of report Ex. PT, which remains unchallenged, the appellant cannot be heard to plead that the recovered stuff was not charas.”

27. Therefore, in this case, it has been held that once the expert gives definite opinion that the sample stuff on analysis was found to be charas keeping in view that Charas is separated resin in whatever form whether crude or purified obtained from cannabis plant, the report can be relied upon and on the basis thereof the entire bulk can be believed to be charas.

28. Another Division Bench of this Court in Criminal Appeal No. 391 of 2002, titled State of HP v. Subhash Sharma @ Bhasi, while placing reliance on Sunil’s judgment has held that as per the report, resin content of cannabis plants in the stuff was only up to the extent of 28.4% and as such the remaining stuff without any evidence cannot be termed to be resin of cannabis plant.

29. Another Division Bench of this Court in Criminal Appeal No. 438 of 2010 titled State of HP v. Mazar Hussain, decided on 8th May, 2012 while placing reliance again on Sunil’s case has held as under :

“7. Since in the present case, no percentage of tetrahydrocannabinol has been mentioned, in such circumstances, we are of the considered view that the contraband goods, so recovered, cannot be said to be `Charas’ in view of report Ext PW-11/C of Assistant Chemical Examiner and in view of the judgment of this Court (DB) in Sunil (supra).”

30. Again a Division Bench of this Court in Criminal Appeal No. 34 of 2007, titled Sher Singh v. State of HP, decided on 17.05.2013, after taking note of the report supplied by Forensic Science Laboratory in respect of the analysis of the sample stuff has held as under :

17. Now the last question which remains for determination is whether the stuff recovered from the accused falls within the definition of charas, as alleged by the prosecution. For that we shall refer to the report of analysis Ext. PW10/F.

18. The sample, in the instant case has been examined on 18.2.2005. The chemical examiner had conducted two qualitative and quantitative tests, i.e., one was microscopic examination which discloses presence of cystolithic hair and on beams alkaline was found positive. It also contained resin to the extent of 31.89% w.w. and on the basis of this chemical examination, the examiner was of the opinion that the exhibit contained the content of charas, meaning thereby that the entire stuff was not charas but it had contents of charas. The prosecution was able to prove that it was charas. We shall have to fall back to the statutory definition of charas.”

31. It has, therefore, been held in this judgment that in view of the report, the entire stuff was not charas, but had the contents of Charas. After taking note of the definition of Charas in terms of Section 2 (iii) of the NDPS Act in this judgment, it is held further as under :

“20. In the instant case from the stuff recovered, one of sample parcels was sent for examination to CTL Kandaghat, report whereof does not show the presence of characteristic cystolithic hair nor it has been mentioned whether the resin found in the said sample was that of cannabis plant so as to bring it within the definition of charas referred to above. It also does not depict the presence of cannoniboils/tetrahydrocannabinol. In other words the report of chemical examiner did not say any thing about the source of resin. Therefore, in our considered opinion, report of the analysis Ext. PW10/F is discrepant and does not conform to the definition of charas as such the conviction and sentence passed against the accused is liable to be set aside.”

Law on the points in issue laid down by the apex Court and other High Courts:

32. As noticed supra, the definition of charas does not insist for the presence of the resin contents, but the presence of tetrahydrocannabinol and cystolithic hair and if the same are found present in the sample, the entire stuff has to be termed as charas. It is held so by a Division Bench of Delhi High Court in Dilip v. State of HP, 2011 CrLJ 334. In this judgment after taking into consideration the case law and also the relevant provisions in the NDPS Act, it is held as under:-

“14. From the above provisions, it is apparent that cannabis is a narcotic drug under Section 2(xiv). On the other hand, THC is a psychotropic substance as it finds mention at S.No. l3 in the list given in the Schedule to the NDPS Act. Thus, while cannabis contains THC and THC forms an important constituent of cannabis, THC by itself is a psychotropic substance and is separately regarded under the NDPS Act. This is important because the nature of the offence and the punishment prescribed for the offence depends on whether a substance is a narcotic drug or a psychotropic substance. The punishment for contravention in relation to cannabis plant is specifically given in Section 20 of the NDPS Act. On the other hand, the punishment for contravention in relation to psychotropic substances is provided in Section 22 of the NDPS Act. Consequently, it would make a material difference as to whether the alleged contraband is cannabis (a narcotic drug) or THC (a psychotropic substance). The question that requires our decision is not in the context of the percentage of THC as a psychotropic substance, but, the percentage of THC in charas (cannabis), which is a narcotic drug. Thus, the classification of the recovery as a small, intermediate, or commercial quantity has to be done from the standpoint of charas (a narcotic drug) and not from the standpoint of THC (a psychotropic substance).

15. The United Nations Bulletin on Narcotics, 1985, which had been strongly relied upon by the learned counsel for the petitioner, only indicates that determination of the THC content is generally believed to be the most satisfactory indicator of the “quality” of the product and that the concentration of THC is used to calculate the quantity of cannabis or cannabis resin used in liquid cannabis (hashish oil). The said bulletin also indicates that the concentration of THC in liquid cannabis and cannabis resin differs across countries. It is indicated that the optimum THC level is approximately 30 per cent by weight, although the rare Indian or Nepalese sample has been found to contain 50 to 60 per cent. According to us, the 1985 Bulletin of Narcotics merely indicates that the content of THC determines the quality of the product. It does not follow that the percentage quantity of THC present in the amount recovered, translated into weight would be the extent of the contraband present in the recovered quantity.
16. In the Recommended Methods for Testing Cannabis issued by the United Nations, 1987, it is clearly stated that:-

“Because cannabis and cannabis resin are plant material it is mandatory that the analyst includes macroscopic and/or microscopic examination of the material as part of the testing protocol. The choice of the two other techniques or more, is left to the discretion of the forensic chemist.”

In the same document issued by the United Nations, the microscopic characteristics of cannabis have been described as under :-

“2. Microscopic characteristics

The very abundant trichomes which are present on the surface of the fruiting and flowering tops of cannabis are the most characteristic features to be found in the microscopic examination of cannabis products. (Figure 2)

The said figure 2 referred to above is as under….

Figure 20

The document further provides :

“The diagram shows these various features, as follows :-

(A) Non glandular hairs (trichomes), numerous, unicellular, rigid, curved, with a slender pointed apex and an enlarged base, usually containing a cystolith but frequently broken and the cystolith freed (especially in cannabis resin) (NC. TR. And C.T.R.)

(B) The glandular trichomes occur in three forms:

– sessile glands with one-celled stalk (generally on lower epidermis) (S.G.)

– long multicellular stalk form (generally on the bracteoles surrounding the female flowers) (M.G.T.R.).

The head in both forms is globular consisting of eight to sixteen cells. It is frequently detached (especially in cannabis resin).

– Small glandular trachoma, with one celled stalk (G.TR.)”

17. The United Nations Bulletin on Narcotics, 2006 referred to above, reveals that several drug products can be produced from the cannabis plant, falling into three main categories :-

(1) “Herbal cannabis”: the leaves and flowers of the plant;

(2) “Cannabis resin”: the pressed secretions of the plant, commonly referred to as “hashish” in the West or “charas” in India;

(3) “Cannabis oil”.

The said bulletin states that cannabis contains over 400 chemicals, of which more than 60 are chemically unique and are collectively referred to as cannabinoids. Delta-9 THC is believed to be responsible for most of the psychoactive effects of cannabis, although related chemicals are believed also to play a role. It is further stated that the precise way in which the various components of cannabis interact and influence the physiological and subjective effects of cannabis is a topic of ongoing research. It is further stated that much of the THC in a plant is in acid form or in a less potent variant and the application of heat is essential to make all of the THC accessible. Furthermore, chemically synthesized delta-9 THC is known as dronabinol (marketed as Marinol). The said bulletin further states that one of the most important secondary chemicals is cannabidiol (CBD), the biosynthetic precursor of THC, which converts to THC as the plant matures. It is further stated in the said bulletin on Narcotics, 2006 that THC degrades over time, so the age of the sample and the conditions under which it was stored are highly relevant.

18. The working Procedure Manual of Narcotics issued by the Directorate of Forensic Science, Government of India, New Delhi deals with cannabis in Section 5 of the said Manual. Section 5.5.1 deals with microscopic examination and its provisions are virtually identical to the examination method given in the `Recommended Methods for Testing Cannabis’ by the United Nations in 1987. Apart from microscopic examination, the Working Procedure Manual also prescribes colour tests, which include Fast Blue B Salt Test employing two different methods: Filter Paper Method and Test Tube Method. The Filter Paper Method prescribed in 5.5.2.1 of the Manual is as under:-

“5.5.2.1 Filter Paper Methodfl]

Fold two filter papers to form fluted funnels. Keep these paper funnels on each other. Place a small amount of suspected sample into the corner of the upper funnel of the paper and add two drops of solution-1. Allow the liquid to penetrate to the lower filter paper funnel. Discard the upper filter paper and dry the lower filter paper. Now add a very small amount of the solid fast Blue B reagent to this lower paper and add two drops of solution-2. A purple-red coloured stain on the filter paper indicates the presence of cannabis product.

Reagents:

Solid reagent: Dilute & mix fast blue B salt with anhydrous sodium sulphate in the ratio of 1:100

Solution 1: Petroleum ether

Solution 2: A 10% w/w aqueous solution of sodium bicarbonate” (underlining added)

The Test Tube Method specified in 5.5.2.2 of the said Manual is as under :-

“5.5.2.2 Test Tube Method [1]

Take a small amount of suspected material in a test tube; add to it a very small amount of the solid reagent and 1ml of solution 1. Shake well for one minute and add 1 ml of solution 2. Shake the test tube for two minutes and allow this test tube to stand for 2 minutes. A purple red colour in the lower layer of chloroform indicates the positive result of the presence of cannabis product.

Reagents:

Solid reagent: Dilute & mix fast blue B salt with anhydrous sodium sulphate in the ratio of 2.5:100

Solution 1: Chloroform

Solution 2: o. IN aqueous sodium hydroxide solution.”

(underlining added)

19. Apart from this, the Duquenois-Levine Test has been indicated in paragraph 5.5.2.3 of the said Manual which reads as under :-

“5.5.2.3 Duquenois-Levine Test [1]

Take a small amount of suspected material in a test tube and shake with 2 ml reagent for 1 minute, add 2 ml of cone. HC1 and shake it well. Allow it to stand for 10 minutes and then add 2 ml of chloroform. Appearance of violet colour in chloroform layer (lower layer) indicates the presence of cannabis.

Reagent:- 5 drops of acctaldehyde and 0.4gms of vanillin are dissolved in 20 ml of 95% ethanol.”

(Underlining added)

An alternative test has been prescribed under section 5.5.2.4 to indicate the presence of tetrahydrocannabinol (THC) in the following manner :-

“5.5.2.4 Alternate test [2]

Extract the sample with petroleum ether. Filter and evaporate to dryness. Add 2 ml. of Duquenois reagent to dissolve the residue add 2ml. cone. HC1. Shake and keep for 10 min. Transfer the solution into a test tube add 2ml. of Chloroform and shake. Purple colour in the chloroform layer indicates the tetrahydrocannabinols.

Reagent:- 5 drops of acetaldehyde and 0.4gms of vanillin are dissolved in 20 ml of 95% ethanol.” (underlining added)

The Manual, thereafter, prescribes a test for differentiation between bhang, ganja and charas as under:-

5.5.2.5 Test for differentiation between Bhang, Ganja and Charas [3]

Extract the suspected material of cannabis in ethanol. Take a drop of extract in a cavity of a spot tile or in a micro tube, add 2 drops of chromogenic reagent 1 and mix thoroughly followed by addition of 2 drops of reagent 2.

Bhang gives green colour, ganja gives blue colour while charas gives violet colour.

Reagent 1: p-Aminophenol (lmg) in ethanol (10 ml)

Reagent 2: Caustic potash (lg) in distilled water (10 ml)” (Underlining added.)

20. Other tests, including thin layer chromatography, gas liquid chromatography, high performance liquid chromatography and mass spectrometry techniques have also been specified. But, from the above testing procedures indicated in the Working Procedure Manual, it is clear that the presence of cannabis can be determined by simple microscopic examination and the various colour tests which clearly reveal the presence of cannabis. It is not at all a scientific requirement to determine the content of THC in a sample of contraband to arrive at the conclusion as to whether the contraband is cannabis or not. In fact, a simple colour test also differentiates the type of cannabis, namely, whether it is charas or ganja or bang (which has not been specifically included as cannabis under the NDPS Act). There is, therefore, no necessity of determining the percentage content of THC in a sample of cannabis, be it charas or ganja. Neither the NDPS Act nor the said notification prescribing small and commercial quantities make any reference to the purity of charas or ganja. Once the contraband has been determined to indicate cannabis, whether in the form of charas or in the form of ganja or as a mixture containing either of the two, with or without other neutral substances, the entire weight of the contraband would have to be considered for determining whether the recovery was of a small quantity, intermediate quantity or a commercial quantity. Therefore our answer to the question is that the percentage of THC in a sample of charas by itself cannot be determinative of the purity of sample.”

33. Hon’ble Single Judge of Bombay High Court in Fakir Ahmed Mohd. Shaikh v. State of Maharashtra, 2012(1) RCR (Cr) 655 : 2011 CrLJ 4896, taking into consideration a similar report of the State Forensic Science Laboratory, Junga, HP, as was assigned in Sunil’s case, has held that in case the test report does not indicate any neutral substance in the sample, the entire stuff is to be held as cannabis:

“9. Examination report from the State Forensic Science Laboratory, Himachal Pradesh, Junga in the present case is important. Relevant portion reads thus,

“RESULTS OF THE EXAMINATION”

Various scientific tests such as physical identification, chemical and chromatographic analyses were carried out in the laboratory with the exhibit marked as A-l under reference. The above tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. Charas is a resinous mass, which on testing was found present in the exhibit. The quantity of purified resin as found in the exhibit marked as A-l is 25.21% w/w. The result thus obtained is given below.

The exhibit marked as A-l is extract of cannabis and entire mass is a sample of CHARAS”

If this report is carefully read, it shows that test performed indicates presence of can-nabinoids including the presence of tetrahy-drocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. It explains that Charas is a resinous mass, which is found present in the exhibit. It shows that quantity of purified resin was 25.21% w/w. Result of the analysis was that Exhibit A -l the sample is extract of cannabis and entire mass is sample of charas. This report indicates that the sample is resin material and entire mass is the sample of charas though purified resin is 25.21%.

10. If percentage of the purified resin in the sample would be the only test to determine quantity of charas, then it could be said that total quantity reduced by 25.21% would be charas but as per the definition, resin obtained from the cannabis plant may be in crude or purified form. Applying test of definition to the sample it would appear that entire mass was the charas, i.e., separated resin, though it was in crude form, out of which 25.21% was purified resin. Test report does not show that there was any neutral substance in that sample. If there is no neutral substance in the sample and the whole of the sample was found to be extract from the cannabis, even though the purified resin may be 25.21%, the whole of the sample would be treated as crude form of the separated resin of the cannabis and, therefore, Charas. It is material to note that as per the examination report from the Directorate of Forensic Science Laboratory, Mumbai, which was initially submitted by the police, the sample exhibits were found to be Charas. As details of the purified resin were not given, samples were sent to State Forensic Science Laboratory Himachal Pradesh at the request of the accused and the report from the State Forensic Science Laboratory Himachal Pradesh also confirms that the entire mass was Charas, though purified resin was 25.21% only. Taking into consideration the definition of Charas in Section 2(iii)(a), quantity of the charas cannot be determined on the basis of percentage of purified resin only. As long as the material is separated resin of cannabis plant, whether crude or purified, it is Charas. Neutral material, if found, only has to be excluded for the purpose of determining quantity in the light of the judgment of the Supreme Court in E. Micheal Raj (supra). As in this case, no neutral material was found, it must be held, at least at this stage, that entire quantity was charas and as it was more than 1 kg., it was commercial quantity.”

34. In E Micheal Raj v. Intelligence Officer Narcotic Control Bureau, 2008(2) RCR (Cr) 597 : 2008(3) Recent Apex Judgments (R.A.J.) 10 : (2008)5 SCC 161, no doubt the apex Court has insisted upon the rate of purity of the contraband for the purpose of levying punishment based on the contents of the offending drug in the mixture and not on the weight of the mixture as such, however, with the caveat that neutral substances should not be taken into consideration while determining the small quantity or commercial quantity of narcotic drugs or psychotropic substances. The ratio of this judgment reads as follows :-

“….In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.”

35. Similarly, in Pappu v. State of Punjab, 2010(4) RCR (Cr) 691, a case where in the sample stuff charas resin contents were found to the extent of 21%, it is held that the Act no where provides for percentage of resin in a sample stuff to form an opinion that the same is charas. The relevant portion of the judgment reads as follows:

“(18). In the present case, the charas contained 21% of resin. The Act no where defines any percentage of resin qua the charas. In the common parlance, Charas is the name given to hand made `hashish’. It is made from the extract of cannabis plants. A resin is a hydrocarbon secretion of many plants. The resin produced by most plants is a viscous liquid. Section 2(iii) (c) of the 1985 Act specifically states that any mixture with or without any neutral material of any of the above forms of cannabis is to be considered as a contraband article. No concentration or percentage qua charas has been defined by the Act. Therefore, if a contraband article is a charas and contains resin of cannabis plant in whatever quantity is to be considered as a charas punishable under Section 20 of the 1985 Act.”

Regarding opinion of expert and admissibility of report under the Evidence Act and Section 293 Cr.P.C. :

36. The main focus in a case under the NDPS Act is on the report issued by the Chemical Examiner in respect of analysis of the sample stuff. The Chemical Examiner is a Scientific Expert. The report submitted by him is admissible in evidence in any inquiry, trial or other proceedings even without examining him as an expert witness.

37. Sections 45 and 46 of the Chapter “Opinions of third persons, when relevant” of Indian Evidence Act, 1872, deal with experts and the relevancy of their opinions :

“45. Opinions of experts : When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.”

38. In view of Sections 45 & 46 of the Evidence Act, in general parlance, an expert is a person, who knows more and more about less and less of his field of specialization. An expert possesses specialized knowledge in a particular arena of a recognized subject in his field, by undertaking extensive studies, undergoing specialized courses and by conducting various experiments based on established principles, validated methods, observing things, studying research articles and gathering reasonable experience therein, he acquires special skills and acumen in his area of specialization.

39. Here we would like to refer to the law laid down by the apex Court in State of HP v. Jia Lal, 1999(4) RCR (Cr) 80 : (1999)7 SCC 280 :

“13. An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject. …

14. xxxx

15. xxxx

16. xxxx

17. xxxx

18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.”

40. The Hon’ble Supreme Court has again taken similar view of the matter in Ramesh Chandra Agarwal v. Regency Hospital Ltd., 2010(1) RCR (Civil) 15 : 2009(6) Recent Apex Judgments (R.A.J.) 481 : (2009)9 SCC 709, after placing reliance on the Judgment in Jai Lal’s case and has observed as under :

“Expert Opinion:

16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are :

(i) that the expert must be within a recognized field of expertise

(ii) that the evidence must be based on reliable principles, and

(iii) that the expert must be qualified in that discipline.

17. xxxx

18. xxxx

19. It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Jones, (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.

20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Others) [2009(4) RCR (Cr) 1 : 2009(4) RCR (Civil) 14 : 2009(5) Recent Apex Judgments (R.A.J.) 405 : Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009].

21. xxx xxx

22. In the Article “Relevancy of Expert’s Opinion” it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference :

“Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.”

41. Section 293 of the Code of Criminal Procedure, relevant at this juncture reads as follows :-

“293. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject – matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely :-

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Controller of Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Halftime Institute, Bombay;

(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.”

(g) any other Government scientific expert specified, by notification, by the Central Government for this purpose.

42. The Section, therefore, postulates that the report of an expert cannot be thrown only because expert is not summoned to prove it nor can such report be discarded only because it does not give details of the tests which have been carried out in Laboratory unless and until the Court is satisfied that summoning of an expert in a particular case for furnishing details of the tests carried out by him, is necessary. The law on this issue is no more res integra because the apex Court in Thana Singh v. Central Bureau of Narcotics, 2013(1) RCR (Cr) 861 : 2013(1) Recent Apex Judgments (R.A.J.) 172 : (2013)2 SCC 590, while expressing concern qua delay being caused in disposal of the cases registered under the NDPS Act and emphasizing the need of speedy trial of such cases and impressing upon all concerned including the Forensic Science Laboratory to expedite the analysis of the samples without any delay and discussing the scope of Section 293 Cr.P.C., has held that the report issued by the Laboratory is to be believed to be correct and need not be proved by the expert, who has analyzed the sample nor should the second sample be sent for re-testing, in routine :

“25. Therefore, keeping in mind the array of factors discussed above, we direct that, after the completion of necessary tests by the concerned laboratories, results of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/resampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the NDPS Act. G. Monitoring”

43. It is thus seen that the apex Court has deprecated the need for retesting/re-sampling of the stuff, which as per the law laid down in the judgment supra should be resorted to only in the extremely exceptional circumstances for reasons to be recorded in writing by the Presiding Judge that too if the application is made by an aggrieved party within a period of 15 days of the receipt of the test report and no application for retesting/re-sampling shall be entertained thereafter.

44. Learned Single Judge of Bombay High Court (Nagpur Bench) in Madansingh Kamalsingh Rajput v. State of Maharashtra, 2010(1) Drugs Cases (Narcotics) 584, after taking into consideration the scope of Section 293 Cr.P.C. has held as under :-

“21. Therefore, in my view, neither can a report of an expert be thrown out of consideration, only because the expert is not summoned to prove it, nor can such a report be discarded only because it does not give details of the tests which have been carried out in laboratory and which have led the experts to conclusion certified by him, unless the accused (or even prosecutor) makes out a case for summoning an expert, or to require such expert to furnish details of the tests carried out by him. The Court may evaluate such steps and may disregard the report, if either the expert does not satisfactorily explain the tests carried out by him which led him to conclude that the substance analysed to be one certified by him, or if another substance too is shown to yield the same results on being subjected to same tests. Therefore, the authorities on which the learned counsel for the appellant placed reliance and the judgments relied on in such authorities, cannot be held, in my humble opinion, to have laid down a proposition that a report from the Forensic Science Laboratory or Assistant Chemical Analyser to the Government cannot be read without summoning such expert, or if such report does not disclose details of the tests carried out unless such details or examination of such expert is sought by parties to the proceedings, by making out a case for so insisting, and not for the mere asking, so as not to turn Section 293 of the Code into a dead letter.”

45. Learned Single Judge of Kerala High Court in Ismail & Etc. v. State of Kerala has also taken a similar view of the matter, which reads as follows :

“6. Another argument was that Ext. P 10 report cannot he accepted for the reason that even though the tests conducted were mentioned, the positive result of each test was not mentioned. I do not think that it was obligatory on the part of the analyst to give the details of the results of each test. PW 11 is a scientific expert, coming u/S. 293 of the Criminal P.C. Ext. P 10 could be used as evidence even without his examination, though the court can summon and examine him, if it thinks fit. In this case, the expert was examined and he said that all the tests were positive. Therefore, at any rate, there is no scope for challenging the correctness of Ext. P 10 now. The samples were found to be charas”

Consideration:

46. A bare reading of the definitions hereinabove demonstrates that `cannabis (hemp)’ has three forms, i.e. charas, ganja, and mixture of any of the first two forms of cannabis. In these cases, the respondents have been tried for possession of the first form of `cannabis’ i.e. `charas’. Charas as per above reproduced definition means 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. The meaning assigned to the resin by the Convention noted supra is also that the resin separated from the cannabis plant is `cannabis resin’ not only when it is purified but also in its crude state i.e. mixed with other parts of the plant. Since the definition does not provide for a particular percentage of resin contents in the stuff, therefore, within the meaning assigned to the charas under the Act as well as by the convention, Charas is a resinous mass and the mere presence of resin contents extracted from cannabis plants in purified form or in crude form i.e. mixed with other parts of the plant , if detected during the course of analysis, alone is sufficient to show that the sample stuff was of charas.

Mere presence of tetrahydrocannabinol is sufficient for conclusion that the same is charas.

47. We are, therefore, of the considered opinion that the definition of `cannabis (Indian Hemp)’/Charas under the Act and also within the meaning of Single Convention on Narcotic Drugs, 1961 does not provide for the percentage of resin in the analyzed stuff to prove that the same is Charas. Similarly, the percentage of tetrahydrocannabinol in a sample of charas is also not required to be indicated as a determinative factor in support of its purity and rather mere presence of tetrahydrocannabinol in the stuff analyzed itself is sufficient to arrive at a conclusion that the same is charas. Otherwise also `cannabis (hemp)’ is a narcotic drug as defined under Section 2 (xxiv) of the Act. Therefore Chemical Examiner is not under any legal obligation to state the percentage of tetrahydrocannabinol which is a narcotic substance in narcotic drugs falling in any of the categories, namely cannabis plant, charas, hashish oil, liquid hashish or ganja.

48. On the other hand, the tetrahydrocannabinol an active agent of Charas is a psychotropic substance within the meaning of section 2 (xxiii) of the Act, being included at Sl. No. 13 in the Schedule below clause (xxiii) of Section 2 of the Act. The Schedule under clause xxiii of Section 2 annexed to the NDPS Act sets out a list of psychotropic substances. Tetrahydrocannabinol finds mention at Sl. No. 13 thereof as under :-

Sl. No. International non-proprietary names Other non-proprietary names

13. Tetra hydro cannabinol

49. Therefore tetrahydrocannabinol is a psychotropic substance.

50. In the notification No. SO527(E) dated 16.7.1996 issued by the Ministry of Finance, Department of Revenue in respect of the small and commercial quantity of narcotic drugs and psychotropic substances, tetrahydrocannabinol finds mention at Sl. No. 150. The offence of possession of tetrahydrocannabinol is punishable under Section 22 of the NDPS Act. The small quantity in relation to punishment for commission of an offence for unlawful possession of tetrahydrocannabinol within the meaning of Section 22 of the NDPS Act is 2 grams whereas commercial quantity, 50 grams. In relation to the drug i.e. cannabis and cannabis resin which find mention at Sl. No. 23 of the notification referred to hereinabove, the small quantity is 100 grams; whereas commercial quantity is 1 kilogram.

51. The reports in Sunil’s case and its connected matters nowhere suggest that the remaining stuff was not charas and some other substance, which can be termed as neutral material and resultantly was required to be excluded from the recovered stuff. No doubt, in E Micheal Raj’s case supra, it is held that the purity of the contraband is a determinative factor in respect of its quantity whether small quantity, above smaller quantity and lesser than commercial quantity and the commercial quantity, however, in that case the recovered stuff was heroin, which within the meaning of Section 2 (xi) is `opium derivatives’, a manufactured drug, which has been defined under clause (d) of Section 2(xvi) of `the NDPS Act. In the notification issued by the Central Government in the exercise of powers vested under clause (vii a) and (xxiii a) of Section 2 of the NDPS Act, heroin finds mention at Sl. No. 56. As per this entry, its chemical name is `Diacetylmorphine’. Clause (d) of Section 2(xvi) defines `Diacetylmorphine’ as follows:

“(d) diacetylmorphine, that is, the alkaloid also known as diamorphine or Heroin and its salts.”

Heroin is a manufactured drug and hence is distinct and different from Charas

52. Heroin, which is a manufactured drug, is distinct and different from Charas, cannot therefore be in crude form and rather only in purified form. Therefore, there cannot be any quarrel qua the law laid down in E Micheal Raj’s case that it is only the actual contents by weight of the narcotic drugs, relevant for the purpose of determining small quantity, intermediate or commercial quantity. When in Sunil’s case and the connected matters in the opinion of the expert, the entire mass was charas and there was no evidence that the same was mixture of some neutral substance, therefore, the entire bulk recovered in this case should have been taken as charas. In Dharampal’s case supra, there is no evidence that the remaining substance was neutral and as such was to be excluded from the bulk recovered from the accused.

53. Now adverting to the expert opinion and admissibility of the report of an expert, while taking support from Section 293 Cr.P.C. and also the overwhelming law laid down by the apex Court and various High Courts discussed hereinabove, we hold that an expert is not under an obligation to give each and every detail with regard to the analysis conducted by him nor is there any requirement prescribed under the law that the report must contain all details qua the tests conducted in the Laboratory and how he arrived at a particular conclusion. The report under the hand of a scientific expert upon any matter duly submitted to him for examination or analysis may be used as evidence at an inquiry or trial as it is. The report submitted by a scientific expert is admissible in evidence even if no details of various tests that are carried out by him are given therein. The same cannot be said to be without any probative value because the statute does not provide that the report must contain entire procedure adopted by the expert while coming to the conclusion, which he has reached. The report of an expert is merely a piece of evidence and not conclusive proof of a fact. The opinion the expert, expresses through his report, is advisory in nature enabling the Court to form its independent opinion with the help of the report by applying the same to the facts proved on the record of that case. The report, therefore, becomes an important factor for consideration along with other evidence led in the case.

54. Therefore, in our opinion, report of an expert can otherwise be relied upon in evidence without summoning the expert and should not be discarded only for want of details of the tests carried out in the Laboratory by the expert i.e. the examiner to arrive at the conclusion he certified. The Court may evaluate the report or discard it, if the expert is found to have not satisfactorily explained the test (s) he carried out to arrive at a conclusion that the substance analyzed is the one certified by him.

Chemical Examiner is not under any legal obligation to state the percentage of tetrahydrocannabinol.

55. This takes us to the reports in Sunil’s case and its connected appeals reproduced supra. The reports on the face of it amply demonstrate that the Chemical Examiners i.e. Shri RS Verma and Shri A.K. Wasuja, who have analyzed the samples of Charas in all the cases, have made specific mention to various tests they conducted in order to arrive at a conclusion that the samples they analyzed were that of charas. The experts, therefore, were well within the legal norms while certifying the samples they analyzed to be that of charas.

Our Opinion:

a. After taking into consideration Section 293 of the Code of Criminal Procedure, Sections 45 and 46 of the Indian Evidence Act and the Law laid down by the apex Court as well as various High Courts discussed in detail hereinabove, we conclude that on account of non-consideration of the same by the Division Bench, which has rendered the judgment in Sunil’s case, correct law on the expert opinion and the reports assigned by the scientific expert after analyzing the exhibit has not been laid down.

b. We further conclude that on account of non-consideration of various reports of the United Nations Office on Drugs and Crime including Single Convention on Narcotic Drugs, 1961 and to the contrary placing reliance on the text books, which basically are on medical jurisprudence, the Division Bench in Sunil’s case failed to assign correct meaning to `charas’ and `cannabis resin’, the necessary constituents of an offence punishable under Section 20 of the NDPS Act.

c. In view of the detailed discussion hereinabove, the Division Bench while deciding Sunil’s case supra has definitely erred in taking note of the percentage of tetrahydrocannabinol in three forms of cannabis i.e. Bhang, Ganja and Charas and hence, concluded erroneously that without there being no reference of the resin contents in the reports assigned by the Chemical Examiners in those cases, the contraband recovered is not proved to be Charas, as in our opinion, the Charas is a resinous mass and the presence of resin in the stuff analyzed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas.

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 determinative factor of small quantity, above smaller quantity and less than commercial quantity and the commercial quantity. Rather, if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but less than commercial and commercial, in terms of the notification below Section 2 (vii a) and (xxiii a) of the Act.

e. We have discussed the Single Convention on Narcotic Drugs, 1961 in detail hereinabove and noted that resin becomes cannabis resin only when it is separated from the plant. The separated resin is cannabis resin not only when it is in `purified’ form, but also when in `crude’ form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in `crude’ form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.

f. We are also not in agreement with the findings recorded by the Division Bench in Sunil’s case that “mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas” for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in `crude’ form or `purified’ form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for `charas’ under the Act.

g. We further hold that in any case the judgment in Sunil’s case is a judgment in personam and not a judgment in rem and as such its universal application in later judgments rendered by this Court and also by the trial Courts, without appreciation of the given facts and circumstances of each case and the evidence available on record, was not legally permissible.

h. The anxiety expressed by the Division Bench in the order of reference that “if report is inadequate, should the Court in the exercise of powers under Section 165 of the Indian Evidence Act and Section 311 of the Code of Criminal Procedure, send the second sample and/or the entire bulk to the Chemical Examiner for re-examination”, has been appropriately taken care of by the judgment of apex Court in Thana Singh’s case supra. We, therefore, hold that the prosecution shall ensure that the copy of the report is supplied to the accused immediately after it is collected from Forensic Science Laboratory. The report issued by the Forensic Science Laboratory has to be believed to be correct and its admissibility cannot be questioned by anyone. A request for re-testing/resampling normally should not be entertained as a matter of course, save and except in extreme exceptional circumstances and for cogent reasons to be recorded by the presiding Judge in case an application for the purpose is made by an aggrieved party, within a period of 15 days of the receipt of the test report. No application for re-testing/re-sampling should be entertained thereafter.

56. We, therefore, answer the reference accordingly. These appeals be listed before appropriate Bench for disposal in accordance with law.

Appeal disposed of.

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