201 CRM-22440-2017 in

CRA-D-163-DB-2017

Varinder Kumar
Versus
State of Punjab

Present: Mr. L.S. Sekhon, Advocate,

for the applicant-appellant.

Mr. Sarabjeet Singh Cheema, AAG, Punjab.

****

Applicant-appellant Varinder Kumar seeks suspension of

sentence of imprisonment having been convicted for keeping in his

possession contraband, which contains 22.62% resin extract and has been

opined to fall under the category of “Charas” as per report of the Chemical

Examiner produced as Ex.PX on lower court record. Considering the

quantity of 10 kg. of “Charas” recovered from the applicant-appellant and

co-accused Ravi Kumar Shah @ Vinay, to be commercial quantity, the

applicant-appellant has been sentenced for imprisonment for a period of 12

years.

Report of the Chemical Examiner indicated that the sample was

greenish brown coloured hard solid material. For arriving at a conclusion

that the contents of contraband are “Charas”, the Chemical Examiner has

reported that on the basis of presence of Tetrahydrocannabinol and other

cannabinoids, cystolithic hair and 22.62% resin extract, the recovered

contraband would be “Charas”.

For the purpose of Section 20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short “the NDPS Act”), which

provides punishment for contravention in relation to cannabis plant and

cannabis and the definition of cannabis and cannabis plant under Section 2

(iii)(a)(b)(c) and Section 2(iv) of the NDPS Act defining cannabis plant, we
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have taken into consideration the fact that any quantity above 1 kg

containing Tetrahydrocannabinol would be “Charas”. Any quantity

above 20 kgs. containing Tetrahydrocannabinol would be “Ganja”, whereas

for “Bhang”, there is no commercial quantity prescribed.

Counsel for the applicant-appellant has referred to Parikh's

Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology as

discussed in the judgment Nagender Shah Versus State of H.P. by a

Division Bench of Himachal Pradesh High Court reported as 2010(4)

R.C.R. (Criminal) 194, to clarify that in case of “Bhang”,

Tetrahydrocannabinol in the sample stuff would be 15% and in the case of

“Ganja,” it would be 25% and in case of “Charas”, it would be between 25

to 40%.

In view of the said submission and the percentage of the

Tetrahydrocannabinol, other cannabinoids and cystolithic hair in the

sample, we called for the report from the Forensic Science Laboratory,

Punjab, and have also tried to seek clarification as to what was the

percentage of Tetrahydrocannabinol in the sample in this case to arrive at a

prima facie conclusion that it was actually “Charas” and not “Ganja” as the

quantity of resin determined as 22.62% appears to be vague and uncertain to

us as it was not clear whether the resin would be Tetrahydrocannabinol or

any other chemical in the sample.

The affidavit submitted by the Assistant Director (Toxicology),

Forensic Science Laboratory, Punjab, indicates that in context to the

definition of cannabis under Section 2(iii)(b) of the NDPS Act and in

context to the Clarke's Isolation and Identification of Drugs under the

heading “cannabis” ; the observations in Modi's Medical Jurisprudence &

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Toxicology and the Recommended Methods of United Nations Office on

Drugs Crime (UNODC) regarding identification and analysis of cannabis

and cannabis products, the contraband in the present case has been

described as “Charas”. The operative part of the affidavit reads as under:-

“10. That the content of the THC is not the only

parameter to define the type of cannabis product as the
content of THC vary from sample to sample and also
depends upon its storage condition. Various Analytical
Techniques such as Physical Examination, Microscopic
Characteristization, Chemical Testing and Instrumental
techniques are applied to identify the type of Cannabis
product [ as per Directorate of Forensic Science Services
(DFSS) manual based on United Nations Office on Drugs
and Crime (UNODC) manual]. On the basis of above
mentioned Tests and Techniques the sample in this case
has been identified as Charas with 22.62% resin extract
(THC) in it. The sample of this case has been described
as Charas as the same has been found fulfilling all the
tests as mentioned above.”

We have also heard the Assistant Director (Toxicology),

Forensic Science Laboratory, Punjab, and considered the literature referred

to by her in the Court and arrived at a prima facie conclusion that the

percentage of resin extract determined by the Laboratory is actually not

giving the exact percentage of Tetrahydrocannabinol and other

cannabinoids and is a rough estimate of the contents of cannabinoids in the

resin extract. In Nagender Shah's case (supra), it has been observed that

mere presence of cystolithic hair in fabric of cannabis plant do not mean

that analysed stuff is “Charas” and not other product of cannabis.

In view of the discussion, we are of the considered opinion that

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possibility of the alleged “Charas” being only “Bhang” i.e. dried leaves of

cannabis plant or the same being “Ganja” i.e. the fruiting tops of cannabis

plant cannot be ruled out.

In view of the abovesaid debatable issue, which is before us to

be finally determined at the final stage of the appeal and also seems to have

been raised before the lower court. We are of the opinion that the remaining

sentence of imprisonment of the applicant-appellant can be suspended in

this particular case especially when the appellant has undergone sentence of

imprisonment of 03 years, which includes the actual custody for a period of

1½ years after conviction and the appeal is not likely to be heard in near

future.

The misc. application is allowed. In the interest of justice, the

remaining sentence of imprisonment of the applicant-appellant Varinder

Kumar is ordered to be suspended during the pendency of the appeal subject

to his furnishing bail/surety bonds to the satisfaction of Chief Judicial

Magistrate, Ludhiana.

Anything said in this order will not be construed as expression

of opinion on merits of the case and the observations made are only in the

nature of interim observations for the purpose of considering the fact that

the applicant-appellant should be kept in custody during the pendency of the

appeal on account of debatable issue apparently existing for adjudication in

the present appeal.

Since the applicant-appellant is the resident of Bihar, it is

ordered that it would be appropriate to ensure that he will furnish surety of a

local resident in order to secure the presence of the applicant-appellant at

the time of final decision of the appeal and the undertaking will be
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furnished by the applicant-appellant before his release in the shape of

affidavit to the effect that he will not commit similar offence for which he

has been convicted under the NDPS Act during the pendency of the appeal.

The photocopy of the bail/surety bonds, so furnished, will be

forwarded to this Court for future reference at the time of disposal of the

appeal.

( M.M.S. BEDI )
JUDGE

May 28, 2018 (HARI PAL VERMA)

seema JUDGE

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