Uttarakhand High Court
GA/66/2020 on 12 July, 2022
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI SANJAYA KUMAR MISHRA
AND
THE HON'BLE SRI ALOK KUMAR VERMA
12TH JULY, 2022
GOVERNMENT APPEAL NO.66 OF 2020
Between:
State of Uttarakhand ...Appellant
and
Sunildas ...Respondent
Counsel for the State/ : Mr. J.S. Virk, learned Deputy
Appellant Advocate General.
Counsel for the : Mrs. Shruti Joshi.
Respondent
with
GOVERNMENT APPEAL NO.67 OF 2020
Between:
State of Uttarakhand ...Appellant
and
Shambhudas ...Respondent
2
Counsel for the State/ : Mr. J.S. Virk, learned Deputy
Appellant Advocate General.
Counsel for the : Mrs. Neelima Mishra.
Respondent (Nominated for free legal
aid).
The Court made the following:
Judgment: (per Hon'ble SRI ALOK KUMAR VERMA, J.)
These two Government Appeals are directed against
a common judgment dated 09.01.2020, passed by the learned
District & Sessions Judge/Special Sessions Judge, Pauri
Garhwal in Special Sessions Trial No.1 of 2019, "State vs.
Sunildas", and, in Special Sessions Trial No.2 of 2019, "State
vs. Shambhudas", whereby, the learned trial court has
acquitted the respondents-accused persons from the charge of
Section 8 read with Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as,
"the Act,1985"). These two Government Appeals are being
decided by this common judgment.
2. Briefly stated the prosecution story as it emerges
from re-appreciation of the evidence on record is that, on
29.12.2018, Sub-Inspector Ashok Siraswal (PW-1) along with
other police constables were going to Station Road. When they
reached near Tourist Sweet Shop, two persons were seen
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sitting carrying bags. The police party informed Sub-Inspector
Sandeep Sharma (PW-2) and Constable Ajay Kumar (PW-4).
Sub-Inspector Sandeep Sharma (PW-2), Constable
Madhusudan (PW-3) and Constable Ajay Kumar (PW-4) came
at the spot. The Circle Officer of Police was informed. J. R.
Joshi, the Circle Officer of Police, Kotdwar (PW-6) came at the
spot. During search before a public witness, namely, Pradeep
Singh (PW-5), dry leaves of Bhang were recovered from the
bags of the respondents. On weighing, the weight of the dry
leaves of Bhang, kept in the bag of Sunildas, was found to be
14.200 grams, and, weight of the dry leaves of Bhang, kept in
the bag of Shambhudas was found to be 12.700 grams.
3. The respondents were arrested. The recovered
articles were sealed. The said recovered articles were taken
into possession vide recovery memo (Ext. Ka.6). The First
Information Report was lodged. The recovered articles were
sent to the Forensic Science Laboratory for chemical analysis.
On chemical analysis, identity of the said articles have been
established as Bhang. After completion of investigation, the
respondents-accused persons were charge-sheeted.
4. The accused persons denied the charges and
claimed to be tried.
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5. In order to bring home the guilt of the accused
persons, the prosecution examined as well as ten witnesses.
6. Statements of the accused persons were recorded
under Section 313 of the Code of Criminal Procedure, 1973,
wherein they denied the entire evidence of the prosecution.
7. The learned trial court has held that the possession
of Bhang is not an offence under the Act, 1985.
8. Heard the learned counsel for the parties.
9. Mr. J.S. Virk, the learned Deputy Advocate General
appearing for the appellant argued that there are enough
material evidence on record to corroborate the prosecution
case, and, to prove the involvement of the respondents in
commission of the crime, and, the learned trial court has failed
to appreciate the evidence of the report of the Forensic
Science Laboratory, according to which, the recovered
contrabands were found as Bhang, and the said Bhang were
recovered from the possession of the respondents.
10. On the other hand, Mrs. Shruti Joshi, Advocate and
Mrs. Neelima Mishra, Advocate, appearing for the respondents,
have supported the impugned judgment.
11. The law is well settled that order of acquittal
strengthens the presumption of the innocence of the accused
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persons. It is equally the duty of the court to see that the
guilty do not escape punishment.
12. Admittedly, the case of the prosecution is that the
dry leaves of Bhang were recovered from the possession of the
respondents-accused persons.
13. Cannabis (hemp) and cannabis plant are two
different contrabands. Cannabis (hemp) is defined in Section 2
(iii) of the Act, 1985, which reads as under :-
"2(iii) "cannabis (hemp)" means-
(a) charas, that is, the separated resin, in whatever form,
whether crude or purified, obtained from the cannabis
plant and also includes concentrated preparation and
resin know as hashish oil or liquid hashish;
(b) 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 know 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."
14. Cannabis plant is defined under Section 2 (iv) of the
Act, 1985, which means any plant of the genus cannabis.
15. Cannabis is a genus of annual flowering plant. Some
plants have male flowers and some plants have female
flowers. Some plants have both male and female flowers.
6
16. Charas is traditionally made from the top leaves and
flowers of the unfertilized young female cannabis plant. Ganja
is the flowering or fruiting tops of the cannabis plant, excluding
the seeds and leaves when not accompanied by the tops.
Bhang is a paste made from the flowers and leaves of the
female cannabis plant. Bhang is made from the leaves of the
cannabis plant. It does not contain the flowering or fruiting
tops as found in Ganja. Therefore, Bhang does not fall within
the definition of cannabis (hemp) as defined under Section 2
(iii) of the Act, 1985. Bhang comes within the definition of
cannabis plant. Therefore, cultivation of Bhang is punishable
under Section 20(a) of the Act, 1985, but, possession of Bhang
is not prohibited by the Act, 1985 and is not an offence under
the Act, 1985.
17. The case of the prosecution is that the dry leaves of
Bhang were recovered from the possession of the
respondents-accused persons. The possession of Bhang is not
an offence under the Act, 1985. Therefore, we are in complete
agreement with the view taken by learned trial court and see
no reason to interfere with the judgment and order impugned
herein.
18. As a result, the instant appeals are liable to be
dismissed. The appeals are dismissed accordingly.
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19. The respondent-Sunildas is on bail. His personal
bond is ordered to be cancelled.
20. The respondent-Shambhudas is in judicial custody.
The respondent-Shambhudas shall be released from jail, in
case, he is not otherwise required in any other case.
21. The Registry is directed to provide a copy of this
judgment to the Superintendent of concerned Jail and the
concerned trial court for intimation and compliance.
22. The Trial Court Records be sent back.
____________________
Sanjaya Kumar Mishra, J.
___________________
Alok Kumar Verma, J.
Dated: 12.07.2022
JKJ/Pant
