Surjit Singh, J.
1. These six appeals, particulars whereof are given in the title of this judgment, are being disposed of together, because a common question of law and facts is raised in all of them, though in a couple of appeals a few other questions/points have also been raised, which will be dealt separately in the later part of it.
2. First, we may notice the facts, which have given rise to common question of law and facts in all the six cases. After dealing with the common question of law, we will sum up the facts of those individual cases in which a few other questions have been raised.
3. In five of the six cases, appellants have been convicted of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, for allegedly possessing Charas. In the sixth case, accused has been acquitted and the State has appealed against his acquittal.
4. 'Charas' is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, which reads as follows:
(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.
5. According to the definition of 'Charas', as given in Section 2(iii)(a) of the Act, the stuff to fall in the category of Charas, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant.
6. Flowering and fruiting tops of cannabis plant have been defined to mean ganja, per Section 2(iii)(b) of the Act and when seeds and leaves of the plant accompany such flowering or fruiting tops, they also form part of ganja.
7. When Charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, are mixed, with or without any neutral material, they fall in the category of Mixture of cannabis (hemp), as defined in Section 2(iii)(c) of the Act.
8. Being in possession of cannabis (hemp) is an offence, punishable under Section 20 of the Act. Punishment varies according to the quantity possessed. Quantities are defined as small and commercial in Sections 2(viia) and 2(xxiiia), respectively. Small and commercial quantities of Charas, ganja and mixture are different, per Table notified by the Ministry of Finance, Department of Revenue, vide notification No. S.O. 527(E), dated 16th July, 1996, under clauses vii(a) and xxiii(a) of Section 2 of the Act. For Charas and hashish, which are referred to as extracts and tinctures of cannabis plant in entry No. 23, small quantity is less than 100 grams and commercial quantity is above 1 kg. In respect of ganja, small quantity is less than 1000 grams and commercial quantity is more than 20 kgs, per entry 55.
9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh:
1. Sunil v. State (Cr. A No. 267/2007)
2. Surinder Singh v. State (Cr. A No. 311/2007)
3. Panne Lal v. State (Cr. A No. 45/2008)
4. State v. Jeet Ram (Cr. A No. 363/2008)
10. In all the aforesaid cases, reports given by the above said Director of the Forensic Science Laboratory are similar, rather verbatim the same. They read 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 R.S. 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. 45/2008), he was examined as a witness of the prosecution and in another, i.e. State v. Jeet Ram (Cr. A No. 363/2008), he was examined as a witness of the defence.
11. In other two cases, i.e. Cr.A No. 314 of 2008, Raj Kumar v. State, and Cr. A No. 500 of 2008, Karuna Shankar Puri v. State, samples were sent to Chemical Examiner, State Forensic Science Laboratory, Junga (H.P.), and his 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.
12. Shri A.K. Wasuja, Chemical Examiner, by whom the aforesaid two reports are signed, was summoned as a Court witness by one of us (Surjit Singh, J), while sitting singly and his statement was recorded to seek clarification as to how he came to the conclusion that the examined stuff was Charas.
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 Cr.A 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.
14. Common question, which has been raised in all the appeals, is whether by conducting certain tests only to notice the presence of cannabinols, including tetrahydrocannabinols, and the characteristic cystolithic hair of cannabis plant, which are also present in ganja and mixture, as defined in Sections 2(iii)(b)&(c), besides bhang, stem and seeds of cannabis plant, the analysts could have been in a position to conclude that the sample was Charas.
15. Dr. R.S. Verma, who was examined as PW-11, by the trial Court, in the case giving rise to appeal titled Panne Lal v. State (Cr.A No. 45/2008), admitted that Charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with Charas and that resin containing tetrahydrocannabinol is Charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify Charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyse the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin.
16. While appearing as DW-1 before the trial Court, in another case, i.e. State v. Jeet Ram (Cr.A No. 363/ 2008), he (Dr. R.S. Verma) stated that it is tetrahydrocannabinol which is the active agent in the resin and that it is the presence of tetrahydrocannabinol, which shows that the sample stuff is a cannabis product. His saying that presence of tetrahydrocannabinol shows that the stuff is cannabis product clearly suggests that the test conducted by him was to find out if the stuff was a product of cannabis and not the specific product, defined as Charas in Section 2(iii)(a) of the Act. Cannabis products are many. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis (hemp), under Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant, possession of which is not an offence. We may observe that finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. He stated that there was resin present in the sample, but he did not mention its percentage in his report, as the same was not required to be mentioned. His statement that resin was present in the sample indicates that the entire stuff was not resin. Further, his statement that the presence of tetrahydrocannabinol indicates that the stuff is cannabis product, shows that tetrahydrocannabinol is supposed to be present not only in resin/Charas but also in other forms of cannabis (hemp), i.e. ganja and mixture, as defined in Sections 2(iii)(b) and 2(iii)(c) of the Act, respectively. As a matter of fact, tetrahydrocannabinol is present not only in the three forms of cannabis (hemp), defined in Section 2(iii) of the Act, but also in its leaves, stem and even the seeds, as we would be indicating in the later part of this judgment and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, which is the fabric of the cannabis plant, do not mean that the analysed stuff is Charas, which means separated resin, per Section 2(iii)(a) of the Act, and not any other product of cannabis.
17. In the remaining two cases, reports are given by Shri A.K. Wasuja, Chemical Examiner of State Forensic Science Laboratory, Junga (H.P.), who was examined as a Court witness by one of us (Surjit Singh, J) sitting in single. In one of his reports, Ex. PX, in case titled Karuna Shankar Puri v. State (Cr.A No. 500/2008), he has stated that Charas is a resinous mass and resin is an ingredient of Charas, which on testing was found present. This mention in the result of analysis suggests that the witness is not even aware of the definition of Charas. Resin is not an ingredient of Charas but it is the separated resin alone which is Charas, per definition given in Section 2(iii)(a) of the Act.
18. Chemical Examiner, Shri A.K. Wasuja, when examined as a Court witness, by this Court, in Criminal Appeal No. 500 of 2008, titled as Karuna Shankar Puri v. State, stated that he did not agree with the definition of 'Charas', as given in Section 2(iii)(a) of the Act and that as a matter of fact 'Charas' was composition of about 400 substances. In support of this claim, he relied upon Ex. C-1, comprising four sheets of some literature downloaded by him from the Internet. Ex. C-1 does not pertain to Charas but Marijuana or Marihuana, which means cannabis. When his attention was drawn to this fact, he admitted that Ex. C-1 pertained to Marijuana.
19. 'Marijuana', as per Webster's Third New International Dictionary, Volume 11, means the dried leaves and flowering tops of the pistillate hemp plants that are the source of the drug cannabin and are sometimes smoked in cigarettes with consequent effect of the drug on the higher nerve centres to produce peculiar psychic disturbances and other words for 'Marijuana', as per the aforesaid Dictionary are bhang, ganja and hashish. That means 'Marijuana' includes not only Charas, ganja and mixture, as defined in Clauses (a), (b) & (c) of Section 2(iii) of the Act, respectively, but also dried leaves and other parts of cannabis plant.
20. From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal v. State and as DW-1 in appeal titled State v. Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW-1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri v. State, it appears that both the Experts are unaware of the term 'Charas', as defined and made an offence under the Act and that the tests were conducted by them to find if the stuff contained tetrahydrocannabinol and cystolithic hair. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW-9/D given in case titled Raj Kumar v. State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps uncertained quantity of Charas/ resin.
21. We have noticed hereinabove that tetrahydrocannabinols are found not only in the Charas, which means separated resin of cannabis plant but also in ganja, as defined in Section 2(iii)(b) of the Act and even in the leaves, seeds and stems of cannabis plant. We have observed so, on the basis of authoritative literature.
22. In The New Encyclopaedia Britannica, 15th Edition, tetrahydrocannabinol or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). 23. In Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Sixth Edition, it is mentioned at Page-10.54, in answer to Question No. 10.21 that tetrahydrocannabinol-THC is active principal and it is present in bhang to the extent of 15 per cent, in ganja to the extent of 25 per cent and in Charas to the extent of 2540 per cent.
24. In Principles and Practice of Forensic Medicine, First Edition, by Dr. Umadethan, it is mentioned at Page 486 that principal psycho active substance in cannabis (Marijuana, Marihuana) is delta-9 tetrahydrocannabinol and besides this there are cannabinol, cannabidiol, cannabinoleic acid and 400 other cannabinoids.
25. Cannabis, according to Lyon's Medical Jurisprudence in India, Tenth Edition (Page-747), includes bhang, which means dried leaves, ganja, flowering tops, Charas, the resin which exudes from the leaves and branches, which is often adulterated and Majun, a sweetmeat prepared with bhang.
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 Ors. v. State of Guajrat : 1995 Cri. L.J. 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. R.S. 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.
29. As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis.
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 indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant.
31. In view of the above stated 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.
32. Now, we proceed to take up the individual cases.
33. In Panne Lal v. State (Cr.A No. 45/2008), Karuna Shankar Puri v. State (Cr.A No. 500/2008) and Sunil v. State (Cr.A No. 267/2007), no other point had been urged by the learned Counsel for the appellants. Criminal Appeal titled State v. Jeet Ram (Cr.A No. 363/2008), filed by the State against the order of acquittal, does not survive, in view of our aforesaid finding that the Chemical Report does not prove that the stuff was Charas.
34. In appeal titled Surinder Singh v. State (Cr.A No. 311 of 2007), it has been argued on behalf of the appellant that there are several contradictions in the testimony of the witnesses, which belie the prosecution story. It was also argued that there is no evidence, indicating that the appellant was the owner of the vehicle or had anything to do with the vehicle from which stuff was recovered. Further, it was contended that link evidence was missing and the presence of some of the witnesses on the spot was highly doubtful.
35. For appreciation of the above submissions, facts of the case need to be noticed. On 16th September, 2006, around 10.30 a.m., when a Police Party, headed by Inspector Trilochan Dutt (PW-11), of which Constable Subhash Kumar (PW-1), Constable Kishori Lal (PW-2), Constable Rajinder Kumar (PW-3), HC Yoginder Kumar (PW-10) and some more police officials were the other members, was present in a forest on Dhamandri-Tayali road, a Maruti Van bearing registration No. HP-02-2885 appeared from Tayali side. It was being driven by appellant Surinder Singh. Van was got stopped and checked. A bag containing a polythene bag, in which there was Charas, was recovered from the front side of the Van near the seat adjacent to driver's seat. On being weighed, the stuff was found to be 2.650 kgs. Two samples, each weighing 30 grams, were separated. One sample was sent to the Chemical Examiner, who vide report Ex. PX gave the opinion that it was Charas.
36. Learned Counsel representing the appellant pointed out contradictions in the statements of the above named witnesses, who formed the Police Party, with regard to the number of the police officials, the condition of the number plate of the Van, the exact place in the Van from where bag containing Charas was recovered, which particular member of the Police Party searched the bag, time when the Police Party reached the spot, who saw the bag containing Charas first, how many other vehicles were checked on way to the site where the Van of the appellant was checked, when did the Police Party leave the Police Station, what were the units of the weights that had been used to weigh the stuff and the manner of weighing the stuff.
37. We have gone through the testimony of PW-1 Constable Subhash Kumar, PW-2 Constable Kishori Lal, PW-3 Constable Rajinder Kumar, PW-10 HC Yoginder Kumar and PW-11 Inspector Trilochan Dutt. The alleged contradictions are very minor and in no way affect the credibility of the above named witnesses, with regard to the search and seizure of the stuff from the Van. All the witnesses have stated, with one voice, that they were members of the Police Party and that the vehicle was stopped at the site of its search and a bag was recovered from the front portion of the Van near the front seat adjacent to the driver's seat.
38. Next contention is that the vehicle is not connected with the appellant, as no documents of the vehicle were seized and produced in the Court. Prosecution was not supposed to have proved that the appellant is the owner of the vehicle or he has anything to do with the vehicle. He was driving the vehicle, in question. He was all alone in the vehicle, when it was got stopped and checked and stuff was recovered. Therefore, the presumption is that the stuff belonged to him. What the prosecution was required to prove was that the stuff was in his possession and not that the vehicle by which he was carrying belonged to him or how he happened to be in control of that vehicle.
39. Another submission made on behalf of the appellant is that link evidence adduced, in the form of testimony of PW-6 MHC Man Dev and PW-7 Constable Naresh Kumar, was discrepant.
40. It was submitted that sample was initially sent to the State Forensic Science Laboratory at Kandaghat, but the Incharge of that Laboratory returned the same, due to over-work and then it was sent to the Central Forensic Science Laboratory at Chandigarh two days later. However, there was no entry in the Malkhana Register, regarding the return of sample by the Incharge of State Laboratory. PW-6 MHC Man Dev admitted that no entry about the return of the sample by the State Laboratory had been made in the Register of Malkhana, but at the same time he stated that an entry had been made in the Rojnamcha, which he was in possession of when in the witness-box. Therefore, mere absence of entry in the Malkhana Register about the return of the sample and its re-depositing in the Malkhana, in our considered view, makes no difference, especially when in the Rojnamcha there is an entry about the return of the sample by the State Laboratory.
41. Learned Counsel further submitted that as per cross-examination of PW-6 MHC Man Dev, parcels containing case property and samples of a number of cases bore seal 'T', which fact indicated that possibility of tampering with the case property or the sample could not be ruled out. Of course, the witness, in his cross- examination, did state that as per entry in the Malkhana Register, case property of various cases bore seal 'T', but he did not say that the impression was the same in all the cases. There are many Investigating Officers in a Police Station and all of them get their own seals prepared and often the seals produce impressions of letters of English alphabet. However, the size, shape and formation of the letters vary, because such seals are usually prepared manually and, therefore, impressions of one seal are always different from the impressions of other seals, even if they are of the same letter.
42. In appeal titled Raj Kumar v. State (Cr.A No. 314/2008), prosecution case is that on 18th October, 2007, around 2.15 p.m., when PW-13 SI Kushal Chand of Police Station, Una, alongwith ASI Karan Pal Singh, Constable Chanan Singh, Constable Vijay Kumar and lady Constable Raj Rani, was present at Rotary Chowk, Una, he received secret information that the appellant, who ran a Drycleaner's shop, near the old hospital building, dealt in sale and purchase of Charas and had kept Charas in his shop for the purpose. He reduced that information into writing (Ex. PW-12/A) and sent the writing to Superintendent of Police, Una, through Constable Vijay Kumar. He also drew a report for registration of the case, which is Ex. PW-7/B and sent it to the Police Station, through Constable Chanan Singh. He associated with him two independent witnesses, namely Ashwani Kumar (PW-1) and one Naresh Kumar, and went to the shop of the appellant. Deputy Superintendent of Police, PW-6 Diwakar Sharma, on being directed by Superintendent of Police, Una, also reached the shop of the appellant. Appellant was informed that it was intended to search his person and he had a right to be searched in the presence of a Gazetted Officer of one of the notified departments or a Magistrate and in case he so desired search of his person could be arranged in the presence of a Magistrate or such a Gazetted Officer. Appellant opted for being searched by PW-13 SI Kushal Chand, in the presence of PW-6 Diwakar Sharma, Deputy Superintendent of Police, who had also reached the spot by that time. On search, 50 grams Charas was recovered from the right side pocket of the pants, which the appellant was wearing. The Charas was wrapped in a white plastic envelope. It was weighed. Two samples, weighing 10 grams each, were separated. Samples and the bulk Charas were made into three separate parcels and the parcels were sealed with a seal that produced the impression of letter 'A' of English alphabet. Specimen impressions of the seal were taken on a separate piece of cloth. Memo of search and seizure was prepared, NCB forms were filed in triplicate, site plan was prepared and the appellant was arrested.
43. Appellant, while in police custody, was interrogated. He told that he had kept Charas in the Puja room of his house in village Kotla, in a trunk, and could get the same recovered. Deputy Superintendent of Police, who by that time had left for his Office, was informed, telephonically. PW-13 SI Kushal Chand then proceeded to the house of the appellant alongwith Raj Kumar and Pritpal Singh. By the time they reached the house of the appellant, Deputy Superintendent of Police, PW-6 Diwakar Sharma, also reached. Appellant led PW-13 SI Kushal Chand, PW-6 Diwakar Sharma and the independent witnesses to his Puja room and get recovered from a trunk a plastic bag containing Charas, which weighed 1.400 kgs. Two samples, each weighing 25 grams were separated. The samples and the bulk Charas were made into three separate parcels and were sealed with a seal that produced the impression of letter 'K' of English alphabet. Search and seizure memo was prepared. Case property was deposited with the Moharrar Head Constable. One sample taken from the Charas recovered in the course of personal search of the appellant and one sample of the Charas recovered from the house of the appellant were sent to the Chemical Examiner, who gave the opinion that the samples were of Charas.
44. During the course of trial, independent witnesses examined by the prosecution, namely PW-1 Ashwani Kumar, PW-2 Rajesh Kumar, PW-3 Des Raj and PW-4 Santosh Rani, who allegedly witnessed the personal search and the house search of the appellant, turned hostile. They were cross-examined by the prosecution with the leave of the Court. They did not say anything favourable to the prosecution, even in their cross-examination. Raj Kumar and Pritpal Singh, the alleged witnesses of disclosure statement, were not examined.
45. Other two witnesses examined by the prosecution were PW-13 SI Kushal Chand and PW-6 Diwakar Sharma, Deputy Superintendent of Police.
46. Learned Counsel for the appellant submitted that testimony of PW-13 SI Kushal Chand and PW-6 Diwakar Sharma, Deputy Superintendent of Police, does not inspire confidence and that even though there are no apparent contradictions in their testimony, yet some inconsistencies and improbabilities in their testimony make the prosecution case highly doubtful.
47. PW-13 SI Kushal Chand testified that he had received information that the appellant indulged in sale and purchase of Charas and that in case his shop was searched, without loss of any time, Charas could be found. In the report, under Section 42(2) of the Act, Ex. PW-12/A, which he sent to the Superintendent of Police, as also report Ex. PW-7/B, which he sent to the Police Station for the registration of the case, he specifically mentioned that the information was that in case search was conducted Charas could be recovered from the shop of the appellant.
48. However, neither PW-13 SI Kushal Chand nor PW-6 Diwakar Sharma, Deputy Superintendent of Police, uttered a word about the search of the shop of the appellant, meaning thereby that the shop was not searched. Now, when the information was that the Charas had been kept in the shop, PW-13 SI Kushal Chand was supposed to have conducted search of the shop first. Not only that in his testimony as PW-13, SI Kushal Chand did not say that the shop was searched, even in the Special Report Ex. PW12/ A, which he sent to the Superintendent of Police after conducting search, he did not mention that search of the shop was also carried out, meaning thereby that shop was not searched.
49. The fact that the information, which PW-13 SI Kushal Chand claimed to have received, was that the Charas was kept in the shop but his not searching the shop and instead searching the person of the appellant, is suggestive of some hanky-panky, especially when only 50 grams Charas, wrapped in a plastic envelope, is alleged to have been recovered during personal search. Such a small quantity can easily be planted and even manipulated to be demonstrated to have been recovered from personal search, by sleight of hand.
50. Evidence with respect to the alleged disclosure statement made by the appellant that he had kept Charas in his house and the recovery of Charas, pursuant to that statement, also does not inspire confidence. PW-13 SI Kushal Chand, in his cross-examination, stated that after conducting the personal search of the appellant he, the appellant and the witnesses straightway went to the house of the appellant and that the disclosure statement was made by the appellant at his shop. It was suggested to him that in the statement of Pritpal Singh as also in the statement of Rajesh Kumar, which he recorded, under Section 161 of the Code of Criminal Procedure, it was written that the disclosure statement about the Charas being in the Puja room had been made at the Police Station. He admitted the suggestions to be correct, but did not reconcile his statement in the Court that the disclosure statement had been made by the appellant at the shop, with the statements of the above named two witnesses, under Section 161 of the Code of Criminal Procedure, in which it is recorded by him that the disclosure statement was made at the Police Station. This fact by itself suggests that the story about the appellant having made disclosure statement leading to the discovery of Charas from Puja room of his house is not true.
51. As a result of our aforesaid finding on the common question involved in all the six appeals, we allow the five appeals filed by the convicts-appellants, i.e. Sunil v. State (Cr. A No. 267/2007), Surinder Singh v. State (Cr. A No. 311/2007), Panne Lal v. State (Cr.A No. 45/2008), Raj Kumar v. State (Cr.A No. 314/2008) and Karuna Shankar Puri v. State (Cr.A No. 500/2008). Appeal filed by appellant Raj Kumar, i.e. Cr.A No. 314 of 2008, Raj Kumar v. State, is allowed also for the additional reasons stated hereinabove, while dealing with the same individually. Consequently, judgments of the trial Courts, convicting and sentencing the above named appellants, are set aside and they are acquitted. They being in jail, serving the sentence awarded by the trial Courts, are ordered to be released forthwith, in case their detention is not required in any other case.
52. Appeal filed by the State, i.e. Cr.A No. 363 of 2008, State v. Jeet Ram, is dismissed, in view of the finding on common question involved in all the six appeals. All the six appeals stand disposed of, in the aforesaid terms.