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High Court of Karnataka · body

2025 DAILYLAW 48993 (KAR)

SHRI. TEJAS H v. THE INSPECTOR OF CUSTOMS

CRL.P/6057/2025 · 2025-06-30

S R Krishna Kumar

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO.6057 OF 2025 (482(Cr.PC) / 528(BNSS) C/W CRIMINAL PETITION NO.4271 OF 2025 (482(Cr.PC) / 528(BNSS) IN CRL.P.No.6057/2025: BETWEEN: SHRI. TEJAS H., S/O SHRI HANUMANTHAPPA T. CHIKNAL, AGED ABOUT 33 YEARS, OCCUPATION: ADVOCATE, R/AT NO.5, 2ND BLOCK, DASAPPA LAYOUT, RAMAMURTHY NAGAR, BANGALORE NORTH, BANGALORE – 560 016. …PETITIONER (BY SRI. HASHMATH PASHA, SENIOR ADVOCATE, SRI. KARIAPPA N.A., ADVOCATE) AND: THE INSPECTOR OF CUSTOMS HEAD QUARTER PREVENTIVE UNIT (HPU), BANGALORE CITY CUSTOMS, BANGALORE – 560 001 (REPRESENTED BY LEARNED SPECIAL PUBLIC PROSECUTOR FOR CUSTOMS, BANGALORE – 560 001). …RESPONDENT (BY SRI. MADHU RAO, ADVOCATE) THIS CRIMINAL PETITION IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS) PRAYING TO QUASH THE COMPLAINT FILED BY RESPONDENT IN SPL.C.C.NO.1466/2024 WHICH IS PENDING ON Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 THE FILE OF HON’BLE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR NDPS CASES, BANGALORE AND ORDER OF COGNIZANCE AND ISSUE OF SUMMONS DATED 13.08.2024 AS BARRED BY LIMITATION AS PER ANNEXURE – ‘B’ AND ‘C’, WHICH IS ARISING OUT OF GEN/INV/OTH/78/2022-HPU-O/o-COMMR-CUS-CITY BANGALORE AS AN ABUSE OF PROCESS OF LAW AND ETC. IN CRL.P.NO.4271/2025: BETWEEN: SRI. VIKRAM ASODE SON OF KRISHNARAJ ASODE AGED 29 YEARS RESIDENT OF NO.707, SOUDATTI, RAYBAG, BELAGAVI – 591 213 ...PETITIONER (BY SRI. SHASHWATH S. PRAKASH, ADVOCATE) AND: THE INSPECTOR OF CUSTOMS, HEADQUARTER PREVENTIVE UNIT (HPU) BENGALURU CITY CUSTOMS, BENGALURU – 560 001 ...RESPONDENT (BY SRI. MADHU RAO, ADVOCATE) THIS CRIMINAL PETITION IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE REMAND APPLICATION (ANNEXURE-A) IN CRIME NO.78/2022 IN FILE NO.GEN/INV/OTH/78/2022-HPU-O/o-COMMR-CUS-CITY- BENGALURU) FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTION 20, 23, 28, 29 OF THE NDPS ACT PENDING ON THE FILE OF THE XXXIIII ADDL. CITY CIVIL AND SESSIONS JUDGE, NDPS SPECIAL COURT, BENGALURU CITY (CCH-33) AND ETC. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR - 3 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 ORAL ORDER In Crl.P.No.6057/2025, the petitioner seeks the following reliefs: “1. To quash the complaint filed by Respondent in Spl.C.C.No.1466/2024 which is pending on the file of Hon’ble XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore and Order or Cognizance and issue of summons dated: 13.08.2024 as barred by Limitation as per Annexure-‘B’ and ‘C’, which is arising out of GEN/INV/OTH/78/2022-HPU-O/o-Commr- Cus-City Bangalore as an abuse of process law. 2. To quash the complaint filed in Spl.C.C.No.1466/2024 on the file of Hon’ble XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore for Offence U/s 22(a), 23(a), 27, 28 and 29 of NDPS Act, which is arising out of file No.GEN/INV/OTH/78/2022-HPU-O/o-Commr-City Bangalore as per Annexure-‘A’ as an abuse of process of law. 3. To quash the Order dated: 13.08.2024 of Taking cognizance and issue of summons in Spl.C.C.No.1466/2024 on the file of Hon’ble XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore for Offence U/s. 22(a), 23(a), 27, 28 and 29 of NDPS Act, which is arising out of file No. GEN/INV/OTH/78/2022- HPU-O/o-Commr-City Bangalore on the file of Respondent as per Annexure-‘B’ as illegal and abuse of process of law. 4. To quash the entire proceedings initiated in Spl.C.C.No.1466/2024 on the file of Hon’ble XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bangalore for Offence U/s. 22(a), 23(a), 27, 28 and 29 of NDPS Act, which is arising out of file No. GEN/INV/OTH/78/2022-HPU-O/o- - 4 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Commr-City Bangalore on the file of Respondent as per Annexure-‘A’ and ‘B’ as an abuse of process of law. 5. To grant such other relief or reliefs as this Hon’ble Court deems fit to grant in the facts and circumstances of the case, in the ends of justice.” In Crl.P.No.4271/2025, the petitioner seeks the following reliefs: “ (a) Quash the Remand Applicant (Annexure-A) in Crime No.78/2022 in File No.GEN/INV/OTH/78/2022-HPU-O/oCOMMR-CUS-CITY- BENGALURU) for the alleged offences punishable under Sections 20,23,28,29 of the NDPS Act pending on the file of the XXXIII Addl. City. Civil and Sessions Judge, Judge, NDPS Special Court, Bengaluru City (CCH-33). (b) Quash the Complaint (Annexure-B) dated: 08.08.2024, in Spl.C.No.1466/2024, for the alleged Offences punishable under Sections 22(a), 23(a) , 27, 28 and 29 of the NDPS Act pending on the file of the XXXIII Addl. City Civil and Sessions Judge, NDPS Special Court, Bengaluru City (CCH-33). (C) Quash entire proceedings in Spl.C.C.No.1466/2024, presently pending on the file of the XXXIII Addl .City Civil and Sessions Judge, NDPS Special Court, Bengaluru City (CCH-33) for the alleged Offences punishable under Sections 22(a), 23(a), 27, 28 and 29 of the NDPS Act in so far as the present Petitioner is concerned. (d) Grant any such order, Direction and /or any other Relief or Reliefs as this Hon’ble Court deems fit and necessary, in the facts and circumstances of the case in the interest of justice.” 2. In the aforesaid petitions seeking quashing of the impugned complaint and proceedings in Spl.C.C.No.1466/2024 - 5 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 before the Trial Court instituted against the petitioners for offences punishable under Sections 22(a), 23(a), 27, 28 and 29 of the NDPS Act, the petitioner in Crl.P.No.6057/2025 is arraigned as accused No.1 while the petitioner in Crl.P.No.4271/2025 is arraigned as accused No.2 in the impugned proceedings. Since, common questions of fact and law arise for consideration in both the petitions, with the consent of all parties, both the petitions are taken up together for consideration and disposed of by this common order. 3. A perusal of the material on record will indicate that a parcel with tracking number CH1629427161US was received on 25.05.2022 in the Foreign Post Office, Bengaluru from USA declaring various varieties of chocolates from the consigner viz., Steven Thompson to the consignee viz., Dilip Kiran with contact number mentioned as “7892745358” which was found to belong to Aibromi Chyne, Meghalaya. It is alleged that the respondent doubted the contents of the said parcel and opened the same and are alleged to have found chocolate packets, which appeared to contain cannabis due to which the said material comprising of 20 packets weighing around 390 grams were subjected to examination - 6 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 by using the narcotics drugs detection kit, which tested positive for presence of cannabis. In pursuance of the same, a mahazar was drawn up and controlled delivery operation was effected on 28.05.2022 during the course of which two persons Shreyas L. Patil and Vikram Asode (accused No.2 – petitioner in Crl.P.No.4271/2025) are alleged to have come to the post office and attempted to collect the parcel at which time, they were apprehended and taken to the office of the respondent. 4. It is alleged by the respondent that the aforesaid two persons Shreyas L. Patil and Vikram Asode were interrogated and their statements were recorded, pursuant to which, Sri. Tejas H. (accused No.1 – petitioner in Crl.P.No.6057/2025) as well as Vikram Asode – accused No.2 were arrested on 29.05.2022 and thereafter, released on bail on 31.05.2022. Subsequently, on 08.08.2024, the respondent filed the instant complaint which was taken cognizance of by the Trial Court vide order dated 13.08.2024 in Spl.C.C.No.1466/2024 against the petitioners, who are before this Court by way of the present petitions. - 7 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 5. Heard learned Senior Counsel for the petitioners and learned counsel for the respondent and perused the material on record. 6. In addition to reiterating the various contentions urged in the memorandum of petitions and referring to the material on record, learned Senior Counsel for the petitioners submits that there is absolutely no material available on record to incriminate the petitioners for the alleged offences. It is submitted that while accused No.1 did not even collect or attempt to collect the subject parcel, the accused No.2 was instructed by accused No.1, who in turn was instructed by the consignee, Dilip Kiran to collect the parcel along with Shreyas L. Patil and merely because the parcel was collected, the petitioners did not have anything to do with the parcel or its contents so as to attract the alleged offences against them. 7. It was also submitted that though the consignor was one Steven Thompson and the consignee was Dilip Kiran and the mobile phone number of one Aibromi Chyne was found on the parcel, none of the said persons had been arraigned as accused persons and the impugned proceedings qua the petitioners - 8 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 deserve to be quashed. It was further submitted that though the subject parcel was seized on 28.05.2022 during the course of controlled delivery and the petitioners were arrested on 29.05.2022 and released on 31.05.2022, the impugned complaint in relation to offences carrying a maximum punishment of one year was filed on 08.08.2024 beyond the period of limitation as contemplated under Section 468 Cr.P.C. and as such, the impugned proceedings deserve to be quashed. It was submitted that before filing the complaint, no quantitative test to determine the percentage of THC in the subject goods was conducted by the respondent as required in law, which would also vitiate the impugned proceedings. Lastly, it is submitted that insofar as petitioner – accused No.1, Tejas H., was concerned he was dragged into the impugned proceedings solely on the alleged confessional statement of the co-accused, accused No.2 and other persons who were interrogated and consequently, the impugned proceedings qua the petitioner – accused No.1 – Tejas H., deserve to be quashed on this ground also. In support of his submissions, he placed reliance upon the following judgments: (i) Sarah Mathew Vs. Institute of Cardio Vasular diseases – (2014) 2 SCC 62; - 9 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 (ii) Ghanshyam Soni Vs. State (Government of NCT of Delhi) – 2025 INSC 803; (iii) Tofan Singh Vs. State of Tamil Nadu – (2021) 4 SCC 1 (iv) B.S.Suresh Vs. State of Karnataka – Crl.P.No.12339/2023 dated 29.08.2024. (v) Dhanaram Patel Vs. State of Karnataka and another – Crl.P.No.10262 OF 2024 dated 20.01.2025. 8. Per contra, learned counsel for the respondent would submit that there is no merit in the petitions and that the same are liable to be dismissed. 9. A perusal of the material on record will indicate that it is an undisputed fact and a matter of record that the subject parcel containing the alleged contraband was received in the Foreign Post office, Bengaluru, on 25.05.2022, pursuant to which, cannabis was alleged to have been by the respondent, who effected controlled delivery on 28.05.2022 during the course of which one Shreyas L. Patil and Vikram Asode, accused No.2 are alleged to have received the parcel. It is also not in dispute that the petitioners – accused Nos.1 and 2 were arrested on 29.05.2022 and released on bail on 31.05.2022 and that the impugned complaint was filed - 10 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 much later on 08.08.2024. In this context, it is relevant to extract the relevant provisions relating to the alleged offences said to have been committed by the petitioners as hereunder: “22. Punishment for contravention in relation to psychotropic substances.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,— (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 5 [one year], or with fine which may extend to ten thousand rupees, or with both; 23. Punishment for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable,— (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 1 [one year], or with fine which may extend to ten thousand rupees, or with both; - 11 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 27. Punishment for consumption of any narcotic drug or psychotropic substance.—Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,— (a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and (b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. 27A. 27A. Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any, of the activities specified in sub- clauses (i) to (v) of 3 [clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: - 12 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 27B. Punishment for contravention of section 8A.—Whoever contravenes the provision of section 8A shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine. 28. Punishment for attempts to commit offences.— Whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence. 29. Punishment for abetment and criminal conspiracy.—(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which— - 13 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.” 10. A perusal of the aforesaid provisions will indicate that the maximum punishment prescribed for the alleged offences against the petitioners is one year; Section 468 Cr.P.C. operates as a bar of limitation for filing of complaint or institution of prosecution / criminal proceedings beyond a period of one year for offences punishable with maximum punishment of one year as can be seen from Section 468(2)(b) of Cr.P.C. which reads as under: “468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section(2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; - 14 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year” 11. The Constitution Bench of the Apex Court in Sarah Mathew’s case supra, held as under: “26. To understand the scheme of Chapter XXXVI it would be advantageous to quote Sections 467, 468, 469 and 473 CrPC. Section 467 reads as under: “467.Definitions.—For the purposes of this Chapter, unless the context otherwise requires, ‘period of limitation’ means the period specified in Section 468 for taking cognizance of an offence.” 27. Section 468 reads as under: “468.Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” 28. Section 469 reads as under: - 15 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 “469. Commencement of the period of limitation.—(1) The period of limitation, in relation to an offender, shall commence— (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded.” 29. Section 473 reads as under: “473.Extension of period of limitation in certain cases.—Notwithstanding anything contained in the foregoing provisions of this Chapter, any court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.” 30. The gist of these provisions could now be stated: 30.1. Section 467 defines the phrase “period of limitation” to mean the period specified in Section 468 for taking cognizance of certain offences. 30.2. Section 468 stipulates the bar of limitation. Sub- section (1) of Section 468 makes it clear that a fetter is put on the court's power to take cognizance of an offence of the category mentioned in sub-section (2) after the expiry of period of limitation. Sub-section (2) lays down the period of limitation for certain offences. - 16 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 30.3. Section 469 states when the period of limitation commences. It is dexterously drafted so as to prevent advantage of bar of limitation being taken by the accused. It states that period of limitation in relation to an offence shall commence either from the date of offence or from the date when the offence is detected. 30.4. Section 470 provides for exclusion of time in certain cases. It inter alia states that while computing the period of limitation in relation to an offence, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender, should be excluded. The Explanation to this section states that in computing limitation, the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly time during which the accused is absconding or is absent from India shall also be excluded. 30.5. Section 471 provides for exclusion of date on which court is closed and Section 472 provides for continuing offence. 30.6. Section 473 is an overriding provision which enables courts to condone delay where such delay has been properly explained or where the interest of justice demands extension of period of limitation. 30.7. An analysis of these provisions indicates that Chapter XXXVI is a code by itself so far as limitation is concerned. All the provisions of this Chapter will have to - 17 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 be read cumulatively. Sections 468 and 469 will have to be read with Section 473. 31. It is now necessary to see what the words “taking cognizance” mean. Cognizance is an act of the court. The term “cognizance” has not been defined in the Criminal Procedure Code. To understand what this term means we will have to have a look at certain provisions of the Criminal Procedure Code. Chapter XIV of the Code deals with “Conditions requisite for initiation of proceedings”. Section 190 thereof empowers a Magistrate to take cognizance upon (a) receiving a complaint of facts which constitute such offence; (b) a police report of such facts; (c) information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Chapter XV relates to “Complaints to Magistrates”. Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process. He may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether there is sufficient ground for proceeding. Chapter XVI relates to commencement of proceedings before the Magistrate. Section 204 provides for issue of process. Under this - 18 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 section if the Magistrate is of the opinion that there is sufficient ground for proceeding and the case appears to be a summons case, he shall issue summons for the attendance of the accused. In a warrant case, he may issue a warrant. Thus, after initiation of proceedings detailed in Chapter XIV, comes the stage of commencement of proceedings covered by Chapter XVI. 32. In Jamuna Singh v. Bhadai Shah [AIR 1964 SC 1541 : (1964) 2 Cri LJ 468] , relying on R.R. Chari [R.R. Chari v. State of U.P., 1951 SCC 250 : AIR 1951 SC 207 : (1951) 52 Cri LJ 775] and Gopal Das Sindhi v. State of Assam [AIR 1961 SC 986 : (1961) 2 Cri LJ 39] , this Court held that : (Jamuna Singh case [AIR 1964 SC 1541 : (1964) 2 Cri LJ 468] , AIR p. 1544, para 8) “8. … It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Criminal Procedure Code, he must be held to have taken cognizance of the offences mentioned in the complaint.” 33. After referring to the provisions of CrPC quoted by us hereinabove, in Videocon International Ltd. [Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471] , this Court explained what is meant by the term “taking cognizance”. The relevant observations of this Court could be quoted : (SCC p. 499, paras 19-20) “19. The expression ‘cognizance’ has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It - 19 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 20. ‘Taking cognizance’ does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.” In several judgments, this view has been reiterated. It is not necessary to refer to all of them. 34. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term “cognizance” and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons. 35. In this connection, our attention is drawn to the judgment of this Court in Sharadchandra Dongre [State of - 20 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42 : 1995 SCC (Cri) 16] . It is urged on the basis of this judgment that by condoning the delay, the court takes away a valuable right which accrues to the accused. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 CrPC is presented before the court. Keeping this argument in mind, let us examine both the viewpoints i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. If the date on which complaint is filed is taken to be material, then if the complaint is filed within the period of limitation, there is no question of it being time-barred. If it is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 CrPC. The court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the court takes cognizance within the period of limitation, there is no question of the complaint being time-barred. If the court takes cognizance after the period of limitation then, the question is how will Section 473 CrPC work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the - 21 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law. Mr Luthra, learned ASG submitted that use of disjunctive “or” in Section 473 CrPC suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the latter part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued. This question has not directly arisen before us. Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 CrPC has to be bifurcated or not. But, we do find this situation absurd. It is absurd to hold that the court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass an order condoning or not condoning the delay. The law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Sections 468, 469 and 470 CrPC is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period. He would, however, be entitled to exclude such time as is legally excludable. 36. The role of the court acting under Section 473 was aptly described by this Court in Vanka - 22 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] where this Court expressed that this section has a non obstante clause, which means that it has an overriding effect on Section 468. This Court further observed that : (SCC p. 8, para 6) “6. … There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Criminal Procedure Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of the delay, whereas, Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay.” These observations indicate the scope of Section 473 CrPC. Examined in the light of legislative intent and meaning ascribed to the term “cognizance” by this Court, it is clear that Section 473 CrPC postulates condonation of delay caused by the complainant in filing the complaint. It is the date of filing of the complaint which is material. 37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or - 23 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides, it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 CrPC would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corpn. Ltd. v. Ayodhya Prasad Mishra [(2008) 10 SCC 139 : (2008) 2 SCC (L&S) 1000] .) 38. The conclusion reached by us is reinforced by the fact that the Law Commission in Para 24.20 of its Forty- second Report, which we have quoted hereinabove, referred to Dau Dayal [Dau Dayal v. State of U.P., AIR - 24 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 1959 SC 433 : 1959 Cri LJ 524] where the three-Judge Bench of this Court was dealing with a special Act i.e. the Merchandise Marks Act, 1889. Section 15 of the Merchandise Marks Act, 1889 stated that no prosecution shall be commenced after expiration of one year after the discovery of the offence by the prosecution. The contention of the appellant was that the offence was discovered on 26-4-1954 when he was arrested, and that, in consequence, the issue of process on 22-7-1955, was beyond the period of one year provided under Section 15 of the Merchandise Marks Act, 1889 and that the proceedings should therefore be quashed as barred by limitation. While repelling this contention, the three-Judge Bench of this Court observed as under : (AIR p. 435, para 6) “6. It will be noticed that the complainant is required to resort to the court within one year of the discovery of the offence if he is to have the benefit of proceeding under the Act. That means that if the complaint is presented within one year of such discovery, the requirements of Section 15 are satisfied. The period of limitation, it should be remembered, is intended to operate against the complainant and to ensure diligence on his part in prosecuting his rights, and not against the court. Now, it will defeat the object of the enactment and deprive traders of the protection which the law intended to give them, if we were to hold that unless process is issued on their complaint within one year of the discovery of the offence, it should be thrown out. It will be an unfortunate state of the law if the trader whose rights had been infringed and who takes up the matter promptly before the criminal court is, nevertheless, denied redress owing to the delay in the issue of process which occurs in court.” - 25 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Though this Court was not concerned with the meaning of the term “taking cognizance”, it did not accept the submission that limitation could be made dependent on the act of the Magistrate of issuing process. It held that if the complaint was filed within the stipulated period of one year, that satisfied the requirement. The complaint could not be thrown out because of the Magistrate's act of issuing process after one year. 39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] , Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] and VankaRadhamanohari [VankaRadhamanohari v. Van ka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] . The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus, jura subveniunt. Chapter XXXVI CrPC which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of - 26 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles. 40. It is submitted that the settled principles of statutory construction require that the expression “cognizance” occurring in Chapter XXXVI should be given its legal sense. It is further submitted that if an expression acquires a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Reliance is also placed on the heading of Chapter XXXVI providing for “Limitation for taking cognizance of certain offences”. Reliance is placed on observations of the three-Judge Bench of this Court in Sarwan Singh [State of Punjab v. Sarwan Singh, (1981) 3 SCC 34 : 1981 SCC (Cri) 625 : AIR 1981 SC 1054] , where in the context of limitation on prosecution it was observed that it is of utmost importance that any prosecution, whether by the State or by the private complainant, must abide by the letter of law. Relying on Raghunath Rai Bareja [Raghunath Rai Bareja v. Punjab National Bank, - 27 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 (2007) 2 SCC 230] , it is urged that the first principle of interpretation of the statute in every system is the literal rule of interpretation. Purposive interpretation can only be resorted to when the plain words of statute are ambiguous. It is submitted that there is no ambiguity here and, therefore, literal interpretation must be resorted to. 41. There can be no dispute about the rules of interpretation cited by the counsel. It is true that there is no ambiguity in the relevant provisions. But, it must be borne in mind that the word “cognizance” has not been defined in CrPC. This Court had to therefore interpret this word. We have adverted to that interpretation. In fact, we have proceeded to answer this reference on the basis of that interpretation and keeping in mind that special connotation acquired by the word “cognizance”. Once that interpretation is accepted, Chapter XXXVI along with the heading has to be understood in that light. The rule of purposive construction can be applied in such a situation. A purposive construction of an enactment is one which gives effect to the legislative purpose by following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or by applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (see Francis Bennion on Statutory Interpretation). After noticing this definition given by Francis Bennion in National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] , this Court noted that : (SCC p. 718, para 35) - 28 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 “35. More often than not, literal interpretation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the courts should keep in mind the objectives or purpose for which statute has been enacted.” In the light of this observation, we are of the opinion that if in the instant case literal interpretation appears to be in any way in conflict with the legislative intent or is leading to absurdity, purposive interpretation will have to be adopted. 42. In New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850] while dealing with eviction proceedings initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 this Court was concerned with the interpretation of Sections 4 and 5 thereof. This Court was of the view that literal meaning thereof would place undue burden on the noticee and would lead to conclusion that the landlord i.e. the State would not be required to adduce any evidence at all. This Court observed that such a construction would lead to an anomalous situation. In the context of fairness in the State action this Court observed that with a view to reading the provisions of the said Act, in a proper and effective manner, literal interpretation which may give rise to an anomaly or absurdity will have to be avoided. This Court further observed that so as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator. So done, the rules of purposive construction will have to be resorted to which would - 29 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 require the construction of the statute in such a manner so as to see that its object is fulfilled. 43. In this connection, we may also usefully refer to the following paragraph from Justice G.P. Singh's Principles of Statutory Interpretation (13th Edn., 2012): “With the widening of the idea of context and importance being given to the rule that the statute has to be read as a whole in its context it is nowadays misleading to draw a rigid distinction between literal and purposive approaches. The difference between purposive and literal constructions is in truth one of degree only. The real distinction lies in the balance to be struck in the particular case between literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. When there is a potential clash, the conventional English approach has been to give decisive weight to the literal meaning but this tradition is now weakening in favour of the purposive approach for the pendulum has swung towards purposive methods of constructions.” 44. We must also bear in mind that we are construing rules of limitation. Our approach should, therefore, be in consonance with this Court's observation in Mela Ram and Sons [Mela Ram and Sons v. CIT, AIR 1956 SC 367 : 1956 SCR 166] that : (AIR p. 371, para 9) “9. … It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right.” 45. It is argued that a legislative casus omissus cannot be supplied by judicial interpretation. It is submitted that to read Section 468 CrPC to mean that the period of - 30 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 limitation as period within which a complaint/charge-sheet is to be filed, would amount to adding words to Sections 467 and 468. It is further submitted that if the legislature has left a lacuna, it is not open to the court to fill it on some presumed intention of the legislature. Reliance is placed on Shiv Shakti Coop. Housing Society [Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659] , Bharat Aluminium [Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810] and several other judgments of this Court where doctrine of casus omissus is discussed. In our opinion, there is no scope for application of doctrine of casus omissus to this case. It is not possible to hold that the legislature has omitted to incorporate something which this Court is trying to supply. The primary purpose of construction of the statute is to ascertain the intention of the legislature and then give effect to that intention. After ascertaining the legislative intention as reflected in the Forty-second Report of the Law Commission and the Report of the JPC, this Court is only harmoniously construing the provisions of Chapter XXXVI along with other relevant provisions of the Criminal Procedure Code to give effect to the legislative intent and to ensure that its interpretation does not lead to any absurdity. It is not possible to say that the legislature has kept a lacuna which we are trying to fill up by judicial interpretative process so as to encroach upon the domain of the legislature. The authorities cited on doctrine of - 31 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 casus omissus are, therefore, not relevant for the present case. 46. We also concur with the observations in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] , where this Court has examined this issue in the context of Article 14 of the Constitution and opted for reasonable construction rather than literal construction. The relevant paragraph reads thus : (SCC p. 412, para 51) “51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalised because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 14 of the Constitution.” (emphasis in original) - 32 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 47. So far as the “heading” of the chapter is concerned, it is well settled that “heading” or “title” prefixed to sections or group of sections have a limited role to play in the construction of statutes. They may be taken as very broad and general indicators or the nature of the subject-matter dealt with thereunder but they do not control the meaning of the sections if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions. In Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185] , this Court has observed as under : (SCC p. 405, para 8) “8. It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision.” 48. Therefore, the submission that heading of Chapter XXXVI is an indicator that the date of taking cognizance is material, must be rejected. 49. It is true that penal statutes must be strictly construed. There are, however, cases where this Court has having regard to the nature of the crimes involved, refused to adopt any narrow and pedantic, literal and lexical construction of penal statutes. (See Murlidhar - 33 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493] and Kisan Trimbak Kothula v. State of Maharashtra [(1977) 1 SCC 300 : 1977 SCC (Cri) 97] .) In this case, looking to the legislative intent, we have harmoniously construed the provisions of Chapter XXXVI so as to strike a balance between the right of the complainant and the right of the accused. Besides, we must bear in mind that Chapter XXXVI is part of the Criminal Procedure Code, which is a procedural law and it is well settled that procedural laws must be liberally construed to serve as handmaid of justice and not as its mistress. (See Sardar Amarjit Singh Kalra [Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272] , N. Balaji v. Virendra Singh [(2004) 8 SCC 312] and Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] .) Conclusion 50. Having considered the questions which arise in this reference in the light of legislative intent, authoritative pronouncements of this Court and established legal principles, we are of the opinion that Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC, primarily because in that case, this Court was dealing with Section 9 of the Child Marriage Restraint Act, 1929 which is a special Act. It specifically stated that no court shall take cognizance of any offence under the said - 34 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Act after the expiry of one year from the date on which offence is alleged to have been committed. There is no reference either to Section 468 or Section 473 CrPC in that judgment. It does not refer to Sections 4 and 5 CrPC which carve out exceptions for the special Acts. This Court has not adverted to diverse aspects including the aspect that inaction on the part of the court in taking cognizance within limitation, though the complaint is filed within time may work great injustice on the complainant. Moreover, reliance placed on Antulay ‘1984’ case [A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 : 1984 SCC (Cri) 277] , in our opinion, was not apt. In Antulay ‘1984’ case [A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 : 1984 SCC (Cri) 277] this Court was dealing inter alia with the contention that a private complaint is not maintainable in the Court of the Special Judge set up under Section 6 of the Criminal Law (Amendment) Act, 1952 (“the 1952 Act”). It was urged that the object underlying the 1952 Act was to provide for a more speedy trial of offences of corruption by a public servant. It was argued that if it is assumed that a private complaint is maintainable then before taking cognizance, a Special Judge will have to examine the complainant and all the witnesses as per Section 200 CrPC. He will have to postpone issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer and in cases under the Prevention of Corruption Act, 1947 by police officers of designated rank for the purpose of deciding whether or - 35 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 not there is sufficient ground for proceeding. It was submitted that this would thwart the object of the 1952 Act which is to provide for a speedy trial. This contention was rejected by this Court holding that it is not a condition precedent to the issue of process that the court of necessity must hold the inquiry as envisaged by Section 202 CrPC or direct investigation as therein contemplated. That is matter of discretion of the court. Thus, the questions which arise in this reference were not involved in Antulay ‘1984’ case [A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 : 1984 SCC (Cri) 277] : since there, this Court was not dealing with the question of bar of limitation reflected in Section 468 CrPC at all, in our opinion, the said judgment could not have been usefully referred to in Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] while construing provisions of Chapter XXXVI CrPC. For all these reasons, we are unable to endorse the view taken in Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] . 51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : - 36 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 (2007) 3 SCC (Cri) 388] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.” 12. The said judgment has been followed on several occasions by the Apex Court, this Court and other High Courts including in the recent judgment of the Apex Court in Ghanshyam Soni’s case supra, wherein it is held as under: “14. In addition, we are also of the considered view that the Complaint dt. 03.07.2002 filed by the Complainant was not time barred and was filed within the ascribed period of three years from the date of the commission of the offence. In arguendo, even if the assertion of the Appellants is considered to be true that the allegations pertain to the year 1999, and there is no material change from the first Complaint dt. 08.09.1999 and the final Complaint dt. 03.07.2002, it cannot be construed that the same was not within the time frame of limitation simply because cognizance was taken by the Magistrate two years later vide Order dt. 27.04.2002. 15. It is a settled position of law that for the computation of the limitation period under Section 468 CrPC the relevant date is the date of filing of - 37 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance.[ Sarah Mathew v. Institute Cardio Vascular Diseases by Its Director DR K.M. Cherian, (2014) 2 SCC 62] The dicta laid down in the case of Bharat Damodar Kale v. State of Andhra Pradesh 8 [(2003) 8 SCC 559] makes it unequivocally clear that the Magistrate is well within his powers to take cognizance of a complaint filed within a period of three years from the date of the commission of offence as mandated under section 468 CrPC. The relevant portion is reproduced as under: “50. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law. 51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a court of law - 38 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 14 of the Constitution. 52. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/court and not of filing of complaint or initiation of criminal proceedings. 53. In the instant case, the complaint was filed within a period of three days from the date of alleged offence. The complaint, therefore, must be held to be filed within the period of limitation even though cognizance was taken by the learned Magistrate after a period of one year. Since the criminal proceedings have been quashed by the High Court, the order deserves to be set aside and is accordingly set aside by directing the Magistrate to proceed with the case and pass an appropriate order in accordance with law, as expeditiously as possible.” 16. The following observation in Kamatchi v. Lakshmi Narayanan [9 (2022) 15 SCC 50] also re-iterates the said position, and further holds that simply because the cognizance is taken at a later stage, but the Complaint was filed within the specified period from the commission of the offence, the Complainant cannot be put to prejudice and her Complaint cannot be discarded as time-barred. - 39 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 “It is, thus, clear that though Section 468 of the Code mandates that ‘cognizance’ ought to be taken within the specified period from the commission of offence, by invoking the principles of purposive construction, this Court ruled that a complainant should not be put to prejudice, if for reasons beyond the control of the prosecuting agency or the complainant, the cognizance was taken after the period of limitation. It was observed by the Constitution Bench that if the filing of the complaint or initiation of proceedings was within the prescribed period from the date of commission of an offence, the Court would be entitled to take cognizance even after the prescribed period was over.” 17. The observations made by the High Court in respect of computation of the limitation period is the correct appreciation of facts, and it is right in holding that “considering the date of commission of offence as 08.09.1999 and the dale of filing of complaint as 03.07.2002, this Court finds that the Complaint was lodged by the Petitioner within a period of two years and ten months from the date of commission of alleged offence, which is within. the period of limitation of three years as per Section 468 of CrPC.” 18. Therefore, this is certainly not a case where the Complaint or the issuance of process is ex-facie barred by limitation, that the question of condonation of delay would arise. It is therefore clarified that the Magistrate had rightly taken cognizance of the offence under section 498A and the question of applicability or exercise of powers under section 473 CrPC as erroneously observed by the Sessions Court, does not even arise and need not be delved into at this stage. - 40 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 19. In the interest of justice, and in exercise of our powers under Article 142 of the Constitution of India, we deem it fit and appropriate to quash and set aside the FIR No. 1098/2002 dt. 19.12.2002 registered with PS Malviya Nagar and the Chargesheet dt. 27.04.2002. 20. Both the Criminal Appeals are accordingly allowed.” 13. In B.S.Suresh’s case supra, the Co-ordinate Bench of this Court held as under: “7. The afore-narrated facts are not in dispute. The first petitioner comes in possession of the property on purchasing it, on 05.02.2014. An inspection of the property by the Fire Department, in terms of a direction, in a public interest petition, takes place on 31.12.2017, 05.01.2018 and on 31.01.2018. It is an admitted fact that there is no record with the respondents for any inspection taking place beyond 31.01.2018. Therefore, it can safely be held that last of the date of inspection or the date on which cause of action was arose on 31.01.2018. Therefore, the limitation even, if it is not prescribed under the Act, in terms of Section 468 of the Cr.P.C., it is six months. The complaint admittedly filed after 13 months, beyond one year. Therefore, on the period of limitation, the petition deserves to succeed. The submission of the learned Additional State Public Prosecutor, placing reliance upon judgment of the co- - 41 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 ordinate Bench in the case of Mr.Ando Paul vs. Mr. G.Ismail Musliyar (supra) is unacceptable. The co- ordinate Bench has held as follows: "16. As regards taking cognizance is bad in law is concerned, learned counsel for the accused relied on the judgment of the Hon'ble Supreme Court in the case of PRADEED S WODEYAR, stated supra, the paragraph Nos.76, 84 and 91 referred by the learned counsel for the accused relating to taking cognizance on the basis of the police report and not on the basis of the private complaint. In the present case, the matter relating to taking cognizance after 8 years from the date of lodging the complaint for the offences which are punishable with simple imprisonment for 2 years or a fine or both, especially in non-cognizable offences. To deal with the said aspect, it is necessary to refer to Section 468 of the Code of Criminal Procedure, which reads thus: “468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; 1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), s. 2 and Sch.192 (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. [(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe - 42 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 punishment or, as the case may be, the most severe punishment.]” 17. On careful reading of the above said provision, it makes it clear that cognizance should be taken within 3 years if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding 3 years. In the present case, a complaint is filed on 21.04.2001, cognizance taken on 12.08.2008. Therefore, the order of taking cognizance is bad in law and the Trial Court and the Appellate Court should have considered the said aspect and recorded the acquittal. In my considered opinion, taking cognizance is bad in law." The co-ordinate Bench proceeds on a footing that the limitation under Section 468 of the Cr.P.C., would be as on the date of taking of the cognizance of the offence. Conviction is set aside on the ground that cognizance was taken by the concerned court after seven years of registration of the crime and the offence was punishable upto 3 years. 8. I decline to follow the said order of the co-ordinate Bench (supra) for the reason that it runs counter to the judgments of the Apex Court in the case of Sarah Mathew vs. Institute of Cardio Vascular Diseases (2013 SCC OnLine SC 1043), where the Apex Court has held as follows: "34. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term “cognizance” and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. - 43 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons. 35. In this connection, our attention is drawn to the judgment of this Court in Sharadchandra Dongre [State of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42 : 1995 SCC (Cri) 16] . It is urged on the basis of this judgment that by condoning the delay, the court takes away a valuable right which accrues to the accused. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 CrPC is presented before the court. Keeping this argument in mind, let us examine both the viewpoints i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. If the date on which complaint is filed is taken to be material, then if the complaint is filed within the period of limitation, there is no question of it being time- barred. If it is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 CrPC. The court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the court takes cognizance within the period of limitation, there is no question of the complaint being time-barred. If the court takes cognizance after the period of limitation then, the question is how will Section 473 CrPC work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is - 44 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 not known to law. Mr Luthra, learned ASG submitted that use of disjunctive “or” in Section 473 CrPC suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the latter part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued. This question has not directly arisen before us. Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 CrPC has to be bifurcated or not. But, we do find this situation absurd. It is absurd to hold that the court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass an order condoning or not condoning the delay. The law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Sections 468, 469 and 470 CrPC is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period. He would, however, be entitled to exclude such time as is legally excludable. 36. The role of the court acting under Section 473 was aptly described by this Court in Vanka Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] where this Court expressed that this section has a non obstante clause, which means that it has an overriding effect on Section 468. This Court further observed that : (SCC p. 8, para 6) “6. … There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Criminal Procedure Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of the delay, whereas, Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay.” These observations indicate the scope of Section 473 CrPC. Examined in the light of legislative intent and meaning ascribed to the term “cognizance” by - 45 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 this Court, it is clear that Section 473 CrPC postulates condonation of delay caused by the complainant in filing the complaint. It is the date of filing of the complaint which is material. 37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides, it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 CrPC would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corpn. Ltd. v. Ayodhya Prasad Mishra [(2008) 10 SCC 139 : (2008) 2 SCC (L&S) 1000] .) - 46 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 38. The conclusion reached by us is reinforced by the fact that the Law Commission in Para 24.20 of its Forty-second Report, which we have quoted hereinabove, referred to Dau Dayal [Dau Dayal v. State of U.P., AIR 1959 SC 433 : 1959 Cri LJ 524] where the three-Judge Bench of this Court was dealing with a special Act i.e. the Merchandise Marks Act, 1889. Section 15 of the Merchandise Marks Act, 1889 stated that no prosecution shall be commenced after expiration of one year after the discovery of the offence by the prosecution. The contention of the appellant was that the offence was discovered on 26-4-1954 when he was arrested, and that, in consequence, the issue of process on 22-7-1955, was beyond the period of one year provided under Section 15 of the Merchandise Marks Act, 1889 and that the proceedings should therefore be quashed as barred by limitation. While repelling this contention, the three-Judge Bench of this Court observed as under : (AIR p. 435, para 6) “6. It will be noticed that the complainant is required to resort to the court within one year of the discovery of the offence if he is to have the benefit of proceeding under the Act. That means that if the complaint is presented within one year of such discovery, the requirements of Section 15 are satisfied. The period of limitation, it should be remembered, is intended to operate against the complainant and to ensure diligence on his part in prosecuting his rights, and not against the court. Now, it will defeat the object of the enactment and deprive traders of the protection which the law intended to give them, if we were to hold that unless process is issued on their complaint within one year of the discovery of the offence, it should be thrown out. It will be an unfortunate state of the law if the trader whose rights had been infringed and who takes up the matter promptly before the criminal court is, nevertheless, denied redress owing to the delay in the issue of process which occurs in court.” Though this Court was not concerned with the meaning of the term “taking cognizance”, it did not accept the submission that limitation could be made - 47 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 dependent on the act of the Magistrate of issuing process. It held that if the complaint was filed within the stipulated period of one year, that satisfied the requirement. The complaint could not be thrown out because of the Magistrate's act of issuing process after one year." The judgment in the case of Sarah Mathew (supra) is further followed, in the case of Amritlal vs. Shantilal Soni and Others [(2022) 13 SCC 128], where the Apex Court has held as follows: "8. Having heard the learned counsel for the parties and having perused the material placed on record, we have not an iota of doubt that the impugned order [Shantilal Soni v. State of M.P., 2019 SCC OnLine MP 7100] of the High Court deserves to be set aside, for it proceeds squarely contrary to the law declared by the Constitution Bench of this Court in Sarah Mathew case [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] . 9. In Sarah Mathew [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] , the Constitution Bench of this Court examined two questions thus : (SCC pp. 73- 74, para 3) “3. No specific questions have been referred to us. But, in our opinion, the following questions arise for our consideration: 3.1. (i) Whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence? 3.2. (ii) Which of the two cases i.e. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] or Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] (which is followed in Japani Sahoo [Japani Sahoo v. Chandra - 48 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] ), lays down the correct law?” 10. The Constitution Bench answered the aforesaid questions as follows : (Sarah Mathew case [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] , SCC p. 102, para 51) “51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.” (emphasis supplied) 11. Therefore, the enunciations and declaration of law by the Constitution Bench in Sarah Mathew case [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] , do not admit of any doubt that for the purpose of computing the period of limitation under Section 468 CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence. The High Court has made a fundamental error in assuming that the date of taking cognizance i.e. 4-12-2012 is decisive of the matter, while ignoring the fact that the written complaint was indeed filed by the appellant on 10-7- - 49 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 2012, well within the period of limitation of 3 years with reference to the date of commission of offence i.e. 4-10-2009." In the light of the judgments of the Apex Court, I deem it appropriate to hold that it is not the date, on which the concerned Court, would take cognizance of the offence, but the date on which the complaint is preferred by the aggrieved person, as an illustration, if an incident has taken place on 01.01.2020 and if the alleged incident meets the ingredients of any offence punishable with maximum imprisonment of three years, the limitation under Section 468 of Cr.P.C., would come to an end on 31.12.2023, a complaint should be preferred on or before 31.12.2023. It is immaterial as to when cognizance can be taken by the concerned Court. In certain cases, cognizance would be taken years later that would be the act of the Court, that is not the purport of Section 468 of the Cr.P.C., which in unequivocal terms, bears interpretation at the hands of the Apex Court. The order of the co-ordinate Bench running counter to the judgments of the Apex Court quoted (supra) loses its precedential value to be followed. It is therefore, per incuriam. The Apex Court in the afore-quoted judgments, would steer clear the issue projected in the case at hand. The very complaint was not entertainable.” 14. In the instant case, as stated supra, the alleged incident / seizure of the subject parcel having occurred on 28.05.2022 by way of controlled delivery and the petitioners having - 50 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 been arrested on 29.05.2022 and enlarged on bail on 31.05.2022 coupled with the fact that the maximum punishment for the offences alleged against the petitioners is a maximum period of one year only, it was incumbent upon and absolutely essential on the part of the respondent to file the impugned complaint within a period of one year thereafter i.e., at least on or before / latest by 31.05.2023 as contemplated under Section 468(2)(b) Cr.P.C.; however, it is a matter of record and an undisputed fact that the impugned complaint was filed much later on 08.08.2024 thereby leading to the sole / unmistakable conclusion that the impugned proceedings as well as the impugned complaint are hopelessly barred by limitation and consequently, the same deserve to be quashed. 15. 15. A perusal of the material on record will indicate will indicate that the petitioners are undisputedly neither the consignor nor the consignees and the mobile phone number found on the subject parcel belonged to one Aibromi Chyne, Meghalaya; it is also not in disputed that both petitioners are practicing lawyers and that accused No.2 accompanied Shreyas L. Patil, also a lawyer to collect the subject parcel upon the instructions of the consignee, - 51 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Dilip Kiran, who is also an advocate; except the fact that accused No.2 is alleged to have collected the parcel as stated supra, there is absolutely no other material produced by the respondent even after investigation so as to implicate either of the petitioners for the alleged offences; the respondent have also not placed any legal or acceptable material to establish either the role or involvement or commission of the alleged offences by the petitioners; further, apart from the fact that the statement of the consignor, Steven Thompson or the consignee, Dilip Kiran or Aibromi Chyne, whose mobile number was found on the subject parcel, even the statements of the petitioners or Shreyas L. Patil, which were recorded during interrogation contain any incriminatory material against the petitioners. It is also significant to note that except, vague, bald, omnibus and general allegations made in paragraphs 13.14, 14 and 15 of the impugned complaint, there is absolutely no material produced by the respondent to incriminate the petitioners for the alleged offences. Under these circumstances, in the absence of any material to establish the commission of the offences by the petitioners so as to attract the ingredients of the alleged offences, I am of the considered view that the impugned - 52 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 complaint and all further proceedings pursuant thereto deserve to be quashed. 16. As stated supra, even according to the respondent, other than the petitioners, four other persons viz., Steven Thompson – consignor, Dilip Kiran – consignee, Sheyas L. Patil – collector of the subject parcel and Aibromi Chyne – mobile number on parcel were involved in the alleged offences as forthcoming from the impugned complaint despite which, none of them have been arraigned as accused persons; so also, except recording the statement of Shreyas L. Patil, the remaining three have not even been interrogated by the respondent even during the course of investigation, which is clearly perfunctory and shoddy and consequently, the impugned proceedings deserve to be quashed on this score also. 17. As stated earlier, the accused No.1 was neither the consignee nor is he alleged to have collected the subject parcel and the accused No.1 is sought to be arraigned to the impugned proceedings only on the basis of alleged confessional statement of accused No.2, which is impermissible in law as held by the Apex Court in Tofan Singh’s case supra, wherein it is held as under: - 53 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 “21. In Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , the majority judgment referred to Article 20(3) in the following terms : (SCC pp. 669-71, paras 205-14) “205. In our Constitution as well as procedural law and law of evidence, there are certain guarantees protecting the right and liberty of a person in a criminal proceeding and safeguards in making use of any statement made by him. Article 20(3) of the Constitution declares that ‘No person accused of any offence shall be compelled to be a witness against himself’. 206. Article 20(3) of our Constitution embodies the principle of protection against compulsion of self- incrimination which is one of the fundamental canons of the British System of Criminal Jurisprudence and which has been adopted by the American System and incorporated in the Federal Acts. The Fifth Amendment of the Constitution of the United States of America provides, ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising … nor shall be compelled in any criminal case to be a witness against himself…’. 207. The above principle is recognised to a substantial extent in the criminal administration of justice in our country by incorporating various statutory provisions. One of the components of the guarantee contained in Article 20(3) of the Constitution is that it is a protection against compulsion resulting in the accused of any offence giving evidence against himself. There are a number of outstanding decisions of this Court in explaining the intendment of Article 20(3). We feel that it would suffice if mere reference is made to some of the judgments, those being : (1) M.P. Sharma v. Satish Chandra [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] , (2) Narayanlal Bansilal v. Maneck Phiroz Mistry [Narayanlal Bansilal v. Maneck Phiroz Mistry, (1961) 1 SCR 417 : AIR 1961 SC 29] , (3) State of Bombay v. Kathi Kalu Oghad [State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856] , and (4) Nandini Satpathy v. P.L. - 54 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Dani [Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 : 1978 SCC (Cri) 236] . 208. 208. Articles 22(1) and (2) confer certain rights upon a person who has been arrested. Coming to the provisions of the Code of Criminal Procedure, Section 161 empowers a police officer making an investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to reduce into writing any statement made to him in the course of such examination. Section 162 which speaks of the use of the statement so recorded, states that no statement recorded by a police officer, if reduced into writing, be signed by the person making it and that the statement shall not be used for any purpose save as provided in the Code and the provisions of the Evidence Act. The ban imposed by Section 162 applies to all the statements whether confessional or otherwise, made to a police officer by any person whether accused or not during the course of the investigation under Chapter XII of the Code. But the statement given by an accused can be used in the manner provided by Section 145 of the Evidence Act in case the accused examines himself as a witness for the defence by availing Section 315(1) of the Code corresponding to Section 342-A of the old Code and to give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. 209. There is a clear embargo in making use of this statement of an accused given to a police officer under Section 25 of the Evidence Act, according to which, no confession made to a police officer shall be proved as against a person accused of any offence and under Section 26 according to which no confession made by any person whilst he is in custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. The only exception is given under Section 27 which serves as a proviso to Section 26. Section 27 contemplates that only so much of information whether amounts to confession or not, as relates distinctly to the fact thereby discovered, in consequence of that information received from a person accused of any offence while in custody of the police can be proved as against the accused. 210. In the context of the matter under discussion, two more provisions also may be referred to—namely, - 55 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Sections 24 and 30 of the Evidence Act and Section 164 of the Code. 211. Section 24 of the Evidence Act makes a confession, caused to be made before any authority by an accused by any inducement, threat or promise, irrelevant in a criminal proceeding. Section 30 of the Evidence Act is to the effect that if a confession made by one or more persons, affecting himself and some others jointly tried for the same offence is proved, the court may take into consideration such confession as against such other persons as well as the maker of the confession. The Explanation to the section reads that “offence” as used in this section includes the abetment of, or attempt to commit, the offence. 212. Section 164 of the Code speaks of recording of confessions and statements by Magistrates specified in that section by complying with the legal formalities and observing the statutory conditions including the appendage of a certificate by the Magistrate recording the confession as contemplated under sub-sections (2) to (6) thereof. 213. Though in the old Code, there was a specific embargo on a police officer recording any statement or confession made to him in the course of an investigation embodied in the main sub-section (1) of Section 164 itself, in the present Code the legal bar is now brought by a separate proviso to sub-section (1) of Section 164 which reads: ‘Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.’ This is a new provision but conveys the same meaning as embodied in the main sub-section (1) of Section 164 of the old Code. 214. 214. Thus, an accused or a person accused of any offence is protected by the constitutional provisions as well as the statutory provisions to the extent that no self- incriminating statement made by an accused to the police officer while he is in custody, could be used against such maker. The submission of the Additional Solicitor General that while a confession by an accused before a specified officer either under the Railway Protection Force Act or the Railway Property (Unlawful - 56 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Possession) Act or the Customs Act or the Foreign Exchange Regulation Act is made admissible, the special procedure prescribed under this Act making a confession of a person indicted under the TADA Act given to a police officer admissible cannot be questioned, is misnomer because all the officials empowered to record statements under those special Acts are not police officers as per the judicial pronouncements of this Court as well the High Courts which principle holds the field till date. See (1) State of U.P. v. Durga Prasad [State of U.P. v. Durga Prasad, (1975) 3 SCC 210 : 1974 SCC (Cri) 828] , (2) Balkishan A. Devidayal v. State of Maharashtra [Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600 : 1981 SCC (Cri) 62] , (3) Ramesh Chandra Mehta v. State of W.B. [Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461 : AIR 1970 SC 940 : 1970 Cri LJ 863] , (4) Poolpandi v. CCE [Poolpandi v. CCE, (1992) 3 SCC 259 : 1992 SCC (Cri) 620] , (5) Directorate of Enforcement v. Deepak Mahajan [Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785] , and (6) Ekambaram v. State of Madras [Ekambaram v. State of Madras, 1972 MLW (Cri) 261] . We feel that it is not necessary to cite any more decisions and swell this judgment.” 22. Ramaswamy, J. concurring in part, but dissenting on the constitutional validity of Sections 9(7) and 15 of TADA, also referred to Article 20(3) as follows : (Kartar Singh case [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , SCC pp. 718 & 729, paras 377 & 396) “377. Custodial interrogation exposes the suspect to the risk of abuse of his person or dignity as well as distortion or manipulation of his self-incrimination in the crime. No one should be subjected to physical violence of the person as well as to torture. Infringement thereof undermines the peoples' faith in the efficacy of criminal justice system. Interrogation in police lock-up are often done under conditions of pressure and tension and the suspect could be exposed to great strain even if he is innocent, while the culprit in custody to hide or suppress may be doubly susceptible to confusion and manipulation. A delicate balance has, therefore, to be maintained to protect the innocent from conviction and - 57 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 the need of the society to see the offender punished. Equally everyone has right against self-incrimination and a right to be silent under Article 20(3) which implies his freedom from police or anybody else. But when the police interrogates a suspect, they abuse their authority having unbridled opportunity to exploit his moral position and authority inducing the captive to confess against his better judgment. The very fact that the person in authority puts the questions and exerts pressure on the captive to comply (sic). Silence on the part of the frightened captive seems to his ears to call for vengeance and induces a belief that confession holds out a chance to avoid torture or to get bail or a promise of lesser punishment. The resourceful investigator adopts all successful tactics to elicit confession as is discussed below. *** 396. In State of Bombay v. Kathi Kalu Oghad [State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856] a Bench of 11 Judges, per majority, interpreting Article 20(3) held (at AIR p. 1813, para 8) on “testimonial compulsion” that, ‘[w]e can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions.’ [Ed. : Quoted from M.P. Sharma v. Satish Chandra, AIR 1954 SC 300, p. 304, para 10.] Indeed every positive act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures positive oral evidence. The acts of the person, of course, is neither negative attitude of silence or submission on his part, nor is there any reason to think that the protection in respect of the evidence procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is to be a witness and not to appear as a witness. It follows that the protection accorded to an accused insofar as it is related to the phrase “to be a witness” is not merely in respect of the testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. The guarantee was, therefore, held to include not only oral testimony given in a court or out of court, but also statements in writing which incriminated the maker when figuring as accused person. In Nandini Satpathy v. P.L. Dani [Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 : 1978 SCC (Cri) 236] it was further held that compelled - 58 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 testimony must be read as evidence procured not merely by physical threat or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like — not legal penalty for violation.” 23. Sahai, J. in a separate opinion, concurring in part, but dissenting on the constitutional validity of Section 15, referred to Article 20(3) as follows : (Kartar Singh case [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 SCC (Cri) 899] , SCC pp. 763-64, para 456) “456. A confession is an admission of guilt. The person making it states something against himself, therefore it should be made in surroundings which are free from suspicion. Otherwise it violates the constitutional guarantee under Article 20(3) that no person accused of an offence shall be compelled to be a witness against himself. The word “offence” used in the article should be given its ordinary meaning. It applies as much to an offence committed under TADA as under any other Act. The word, “compelled” ordinarily means “by force”. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing. Same may take place when one is prevented from doing a particular thing unless he agrees to do as desired. In either case it is compulsion. A confession made by an accused or obtained by him under coercion suffers from infirmity unless it is made freely and voluntarily. No civilised democratic country has accepted confession made by an accused before a police officer as voluntary and above suspicion, therefore, admissible in evidence. One of the established rule or norms accepted everywhere is that custodial confession is presumed to be tainted. The mere fact that the legislature was competent to make the law, as the offence under TADA is one which did not fall in any State entry, did not mean that the legislature was empowered to curtail or erode a person of his fundamental rights. Making a provision which has the effect of forcing a person to admit his guilt amounts to denial of the liberty. The class of offences dealt by TADA may be different than other offences but the offender under TADA is as much entitled to protection of Articles 20 and 21 as any other. The difference in nature of - 59 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 offence or the legislative competence to enact a law did not affect the fundamental rights guaranteed by Chapter III. If the construction as suggested by the learned Additional Solicitor General is accepted it shall result in taking the law back once again to the days of Gopalan [A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27] . Section 15 cannot be held to be valid merely because it is as a result of law made by a body which has been found entitled to make the law. The law must still be fair and just as held by this Court. A law which entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20(3) and 21 of the Constitution.” 24. A recent judgment in Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] dealt with the constitutional validity of narco-analysis tests as follows : (SCC pp. 355-58 & 382-83, paras 179-85, 189 & 262-64) “179. We now return to the operative question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses. Ordinarily evidence is classified into three broad categories, namely, oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2) CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial Judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. 180. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the “right against self-incrimination”. The crucial test laid down in Kathi Kalu Oghad [State of - 60 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856] is that of ‘11. … imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.’ (ibid. at SCR p. 30.) The difficulty arises since the majority opinion in that case appears to confine the understanding of “personal testimony” to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a “positive volitional act” on part of the test subject and hence their results should not be treated as testimony. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). 181. We must refer back to the substance of the decision in Kathi Kalu Oghad [State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856] which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma case [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] , it was noted that ‘…evidence can be furnished through the lips or by production of a thing or of a document or in other modes’. (ibid. at SCR p. 1087 : AIR p. 304, para 10) Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to - 61 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 “criminal charges or penalties” or furnish a link in the chain of evidence needed for prosecution. 182. We must also highlight that there is nothing to show that the learned Judges in Kathi Kalu Oghad [State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 : AIR 1961 SC 1808 : (1961) 2 Cri LJ 856] had contemplated the impugned techniques while discussing the scope of the phrase “to be a witness” for the purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and were the subject of experimentation in some western nations while the BEAP technique was developed several years later. Just as the interpretation of statutes has to be often re-examined in light of scientific advancements, we should also be willing to re- examine judicial observations with a progressive lens. 183. An explicit reference to the lie detector tests was of course made by the US Supreme Court in Schmerber [Schmerber v. California, 1966 SCC OnLine US SC 124 : 16 L Ed 2d 908 : 384 US 757 (1966)] decision, wherein Brennan, J. had observed at US p. 764 : (SCC OnLine US SC para 9) ‘9. … To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.’ 184. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject's mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject's physiological responses are directly correlated to mental faculties. Through lie detection or gauging a subject's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge - 62 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 of the test subject's thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of “personal knowledge” through such means. 185. During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned tests impedes the subject's right to choose between remaining silent and offering substantive information. The requirement of a “positive volitional act” becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. *** 189. In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as “personal testimony”, since they are a means for “imparting personal knowledge about relevant facts”. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of “testimonial compulsion”, thereby attracting the protective shield of Article 20(3). *** 262. In our considered opinion, the compulsory administration of the impugned techniques violates the “right against self-incrimination”. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The - 63 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible “conveyance of personal knowledge that is relevant to the facts in issue”. The results obtained from each of the impugned tests bear a “testimonial” character and they cannot be categorised as material evidence. 263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of “substantive due process” which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non- penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of “ejusdem generis” and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to “cruel, inhuman or degrading treatment” with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the “right to fair trial”. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”. 264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to - 64 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.” 25. Equally important is the right to privacy which has been recognised by a number of decisions of this Court, and now firmly grounded in Article 21 of the Constitution of India. In K.S. Puttaswamy [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , several judgments were referred to; and M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] , where it was held that no such right was recognised in the Constitution of India, was overruled. Thus, in the judgment of Chandrachud, J., it was stated : (K.S. Puttaswamy case [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , SCC pp. 359-60, 399-400 & 507-08, paras 26-27, 100 & 316) “26. M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] was a case where a law prescribing a search to obtain documents for investigating into offences was challenged as being contrary to the guarantee against self-incrimination in Article 20(3). The Court repelled the argument that a search for documents compelled a person accused of an offence to be witness against himself. Unlike a notice to produce documents, which is addressed to a person and whose compliance would constitute a testimonial act, a search warrant and a seizure which follows are not testimonial acts of a person to whom the warrant is addressed, within the meaning of Article 20(3). The Court having held this, the controversy in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] would rest at that. The observations in M.P. - 65 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] to the effect that the Constitution-makers had not thought it fit to subject the regulatory power of search and seizure to constitutional limitations by recognising a fundamental right to privacy (like the US Fourth Amendment), and that there was no justification to import it into a “totally different fundamental right” are at the highest, stray observations. 27. The decision in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] held that in the absence of a provision like the Fourth Amendment to the US Constitution, a right to privacy cannot be read into the Indian Constitution. The decision in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] did not decide whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21. Hence the decision cannot be construed to specifically exclude the protection of privacy under the framework of protected guarantees including those in Articles 19 or 21. The absence of an express constitutional guarantee of privacy still begs the question whether privacy is an element of liberty and, as an integral part of human dignity, is comprehended within the protection of life as well. *** 100. M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] dealt with a challenge to a search on the ground that the statutory provision which authorised it, violated the guarantee against self-incrimination in Article 20(3). In the absence of a specific provision like the Fourth Amendment to the US Constitution in the Indian Constitution, the Court answered the challenge by its ruling that an individual who is subject to a search during the course of which material is seized does not make a voluntary testimonial statement of the nature that would attract Article 20(3). The Court distinguished a compulsory search from a voluntary statement of disclosure in pursuance of a notice issued by an authority to produce documents. It was the former category that was held to be involved in a compulsive search, which the Court held would not attract the guarantee against self-incrimination. The - 66 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 judgment, however, proceeded further to hold that in the absence of the right to privacy having been enumerated in the Constitution, a provision like the Fourth Amendment to the US Constitution could not be read into our own. The observation in regard to the absence of the right to privacy in our Constitution was strictly speaking, not necessary for the decision of the Court in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] and the observation itself is no more than a passing observation. Moreover, the decision does not adjudicate upon whether privacy could be a constitutionally protected right under any other provision such as Article 21 or under Article 19. *** 316. The judgment in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20(3) of the Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] is overruled to the extent to which it indicates to the contrary.” 26. The judgment of Nariman, J. held as follows (K.S. Puttaswamy case [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] , SCC pp. 555-56, 565, 570-74 & 598, paras 442-43, 456-57, 468-69, 472, 475 & 521) “442. The importance of Semayne case [Semayne case, (1604) 5 Co Rep 91a : 77 ER 194] is that it decided that every man's home is his castle and fortress for his defence against injury and violence, as well as for his repose. William Pitt, the Elder, put it thus: ‘The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may - 67 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 shake —the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dare not cross the threshold of the ruined tenement.’ A century-and-a-half later, pretty much the same thing was said in Huckle v. Money [Huckle v. Money, (1763) 2 Wils KB 205 : 95 ER 768] in which it was held that Magistrates cannot exercise arbitrary powers which violated the Magna Carta (signed by King John, conceding certain rights to his barons in 1215), and if they did, exemplary damages must be given for the same. It was stated that : (ER p. 769) ‘… To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour;…’ 443. This statement of the law was echoed in Entick v. Carrington [Entick v. Carrington, (1765) 19 St Tr 1029 : 95 ER 807] in which Lord Camden held that an illegal search warrant was “subversive of all the comforts of society” and the issuance of such a warrant for the seizure of all of a man's papers, and not only those alleged to be criminal in nature, was “contrary to the genius of the law of England”. A few years later, in Da Costa v. Jones [Da Costa v. Jones, (1778) 2 Cowp 729 : 98 ER 1331] , Lord Mansfield upheld the privacy of a third person when such privacy was the subject-matter of a wager, which was injurious to the reputation of such third person. The wager in that case was as to whether a certain Chevalier D'eon was a cheat and imposter in that he was actually a woman. Such wager which violated the privacy of a third person was held to be injurious to the reputation of the third person for which damages were awarded to the third person. These early judgments did much to uphold the inviolability of the person of a citizen. *** 456. The first thing that strikes one on reading the aforesaid passage is that the Court [in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] ] resisted the invitation to read the US Fourth Amendment into the US Fifth Amendment; in short it refused to read or import the Fourth Amendment into the Indian equivalent of that part of the Fifth Amendment which is the same as Article 20(3) of the Constitution of India. - 68 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Also, the fundamental right to privacy, stated to be analogous to the Fourth Amendment, was held to be something which could not be read into Article 20(3). 457. The second interesting thing to be noted about these observations is that there is no broad ratio in the said judgment that a fundamental right to privacy is not available in Part III of the Constitution. The observation is confined to Article 20(3). Further, it is clear that the actual finding in the aforesaid case had to do with the law which had developed in this Court as well as the US and the UK on Article 20(3) which, on the facts of the case, was held not to be violated. Also we must not forget that this was an early judgment of the Court, delivered in the Gopalan [A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27] era, which did not have the benefit of R.C. Cooper [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] or Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . Quite apart from this, it is clear that by the time this judgment was delivered, India was already a signatory to the Universal Declaration of Human Rights, Article 12 of which states: ‘12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’ *** 468. It will be seen that different smaller Benches of this Court were not unduly perturbed by the observations contained in M.P. Sharma [M.P. Sharma v. Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cri LJ 865] as it was an early judgment of this Court delivered in the Gopalan [A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27] era which had been eroded by later judgments dealing with the interrelation between fundamental rights and the development of the fundamental right to privacy as being part of the liberty and dignity of the individual. 469. 469. Therefore, given the fact that this judgment dealt only with Article 20(3) and not with other fundamental rights; given the fact that the 1948 Universal Declaration of Human Rights containing the right to privacy was not pointed out to the Court; given the fact that it was delivered in an era when - 69 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 fundamental rights had to be read disjunctively in watertight compartments; and given the fact that Article 21 as we know it today only sprung into life in the post Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] era, we are of the view that this judgment is completely out of harm's way insofar as the grounding of the right to privacy in the fundamental rights chapter is concerned. *** 472. The majority judgment in Kharak Singh [Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] then went on to refer to the Preamble to the Constitution, and stated that Article 21 contained the cherished human value of dignity of the individual as the means of ensuring his full development and evolution. A passage was then quoted from Wolf v. Colorado [Wolf v. Colorado, 1949 SCC OnLine US SC 102 : 93 L Ed 1782 : 338 US 25 (1949)] to the effect that the security of one's privacy against arbitrary intrusion by the police is basic to a free society. The Court then went on to quote the US Fourth Amendment which guarantees the rights of the people to be secured in their persons, houses, papers and effects against unreasonable searches and seizures. Though the Indian Constitution did not expressly confer a like guarantee, the majority held that nonetheless an unauthorised intrusion into a person's home would violate the English Common Law maxim which asserts that every man's house is his castle. In this view of Article 21, Regulation 236(b) was struck down. *** 475. If the passage in the judgment dealing with domiciliary visits at night and striking it down is contrasted with the later passage upholding the other clauses of Regulation 236 extracted above, it becomes clear that it cannot be said with any degree of clarity that the majority judgment upholds the right to privacy as being contained in the fundamental rights chapter or otherwise. As the majority judgment contradicts itself on this vital aspect, it would be correct to say that it cannot be given much value as a binding precedent. In any case, we are of the view that the majority judgment is good law when it speaks of Article 21 being designed to assure the dignity of the individual as a most cherished human value which ensures the means of full development and evolution of a human being. The - 70 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 majority judgment is also correct in pointing out that Article 21 interdicts unauthorised intrusion into a person's home. Where the majority judgment goes wrong is in holding that fundamental rights are in watertight compartments and in holding that the right to privacy is not a guaranteed right under our Constitution. It can be seen, therefore, that the majority judgment is like the proverbial curate's egg—good only in parts. Strangely enough when the good parts alone are seen, there is no real difference between Subba Rao, J.'s approach in the dissenting judgment and the majority judgment. This then answers the major part of the reference to this nine-Judge Bench in that we hereby declare that neither the eight-Judge nor the six- Judge Bench can be read to come in the way of reading the fundamental right to privacy into Part III of the Constitution. *** 521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects: • Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely; • Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and • The privacy of choice, which protects an individual's autonomy over fundamental personal choices. For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and (e) read with Article 21; ground personal information privacy under Article 21; and the privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument based on “privacy” being a vague and nebulous concept need not, therefore, detain us.” (emphasis in original) 27. The NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21, Parliament being aware of the - 71 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 fundamental rights of the citizen and the judgments of this Court interpreting them, as a result of which a delicate balance is maintained between the power of the State to maintain law and order, and the fundamental rights chapter which protects the liberty of the individual. Several safeguards are thus contained in the NDPS Act, which is of an extremely drastic and draconian nature, as has been contended by the counsel for the appellants before us. Also, the fundamental rights contained in Articles 20(3) and 21 are given pride of place in the Constitution. After the 42nd Amendment to the Constitution was done away with by the 44th Amendment, it is now provided that even in an Emergency, these rights cannot be suspended — see Article 359(1). The interpretation of a statute like the NDPS Act must needs be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy, as has been found in the recent judgments of this Court. Confessions under Section 25 of the Evidence Act 28. At this juncture, it is important to set out Sections 24 to 27 of the Evidence Act: “24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would - 72 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 25. Confession to police officer not to be proved.—No confession made to a police officer, shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him.—No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). 27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 29. Section 25 was originally in the Criminal Procedure Code, 1861 (Act 25 of 1861), and was brought into the Evidence Act, 1872. Section 25 states that a confession made to any police officer, whatever his rank, cannot be relied upon against a person accused of any offence. “Police officer” is not defined in the Evidence Act or in any cognate criminal statute. As to what, therefore, “police officer” means, has been the subject-matter of several decisions of this Court, which will be adverted to later. For the time being, Section 25 is to be viewed in contrast to Section 24, given the situation in India of the use of torture and third-degree - 73 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 measures. Unlike Section 24, any confession made to a police officer cannot be used as evidence against a person accused of an offence, the voluntariness or otherwise of the confession being irrelevant—it is conclusively presumed by the legislature that all such confessions made to police officers are tainted with the vice of coercion. 30. The “First Report of Her Majesty's Commissioners Appointed to Consider the Reform of the Judicial Establishments, Judicial Procedure and Laws of India & c.” (1856) which formed the basis for Section 25 of the Evidence Act, stated as follows: “Then follow other provisions for preventing any species of compulsion or maltreatment with a view to extort or confession or procedure information. But we are informed, and this information is corroborated by evidence we have examined, that, in spite of this qualification, confessions are frequently extorted or fabricated. A police officer, on receiving intimation of the occurrence of a dacoity or other offence of a serious character, failing to discover the perpetrators of the offence, often endeavours to secure himself against any charge of supinates or neglect by getting up a case against parties whose circumstances or characters are such as are likely to obtain credit for an accusation of the kind against them. This is not infrequently done by extorting or fabricating false confession, and when this step is once taken, there is of course impunity for real offenders, and a great encouragement to crime. The darogah is henceforth committed to the direction he has given to the case; and it is his object to prevent a discovery of the truth, and the apprehension of the guilty parties, who, as far as the police are concerned, are now perfectly safe. We are persuaded that any provision to correct the exercise of this power by the police will be futile; and we accordingly propose to remedy the evil, as far as possible, by the adoption of a rule prohibiting any examination whatever of any accused party by the police, the result of which is to constitute a written document.” (at p. 110) - 74 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 31. It is important to emphasise that the interpretation of the term “accused” in Section 25 of the Evidence Act is materially different from that contained in Article 20(3) of the Constitution. The scope of the section is not limited by time— it is immaterial that the person was not an accused at the time when the confessional statement was made. This was felicitously put by this Court in Deoman Upadhyaya [State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 : AIR 1960 SC 1125 : 1960 Cri LJ 1504] as follows : (SCR p. 21 : AIR pp. 1128-29, para 7) “7. … By Section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By Section 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, “accused person” in Section 24 and the expression “a person accused of any offence” have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayana Swami v. King Emperor [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66] by the Judicial Committee of the Privy Council : (SCC OnLine PC) ‘… Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation.’ The adjectival clause “accused of any offence” is therefore descriptive of the person against whom a confessional - 75 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban.” 32. Likewise, in Aghnoo Nagesia v. State of Bihar [Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 : AIR 1966 SC 119 : 1966 Cri LJ 100] , the Court held : (SCR p. 137 : AIR pp. 122-23, para 9) “9. … Section 25 provides: ‘25. Confession to police officer not to be proved.—No confession made to a police officer, shall be proved as against a person accused of an offence.’ The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.” 33. Thus, whereas a formal accusation is necessary for invoking the protection under Article 20(3), the same would be irrelevant for invoking the protection under Section 25 of the Evidence Act. 34. Section 26 of the Evidence Act extends the protection to confessional statements made by persons while “in the custody” of a police officer, unless it be made in the immediate presence of a Magistrate. “Custody” is not synonymous with “arrest”, as has been held in a number of judgments of this Court—custody could refer to a situation pre-arrest, as was the case in State of Haryana v. Dinesh Kumar [State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 : (2008) 1 SCC (Cri) 722] (see paras 27-29). In fact, Section 46 CrPC speaks of “a submission to the custody by word or action”, which would, inter alia, refer to a voluntary appearance before a police officer without any formal arrest being made. xxxx - 76 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” 18. Viewed from this angle also, the impugned proceedings deserve to be quashed. 19. A perusal of the material on record will indicate that during the course of investigation, the respondent did not conduct or attempt to conduct a quantitative analysis / test for the purpose of determining the percentage of THC in the subject goods as required in law and as held by this Court in Dhanaram Patel’s case supra, wherein it is held as under: “10. The undisputed material on record will also indicate that since the said Report dated 20.09.2022 was inconclusive and the percentage, quantity etc., of THC found in the sample were not forthcoming in the Report which also did not state anything as to its effect on the human body, the I.O. deemed it appropriate to address a communication - 77 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 dated 04.02.2023 not only seeking clarification as to whether there was ganja in the samples or not, but also putting forth specific query regarding the percentage, quantity etc., of THC found in the sample as well as its effect on the human body for the purpose of filing charge sheet; however, in response to the said query, the CC Laboratory issued a reply dated 04.02.2023 categorically stating that for want / lack of requisite equipment, the contents, percentage, quantity of THC cannot be detected to ascertain the presence of ganja in the samples. Despite the initial inconclusive report and the aforesaid communication between the I.O. and the Laboratory, all of which, clearly indicated that the presence of ganja could not be ascertained, the 1st respondent proceeded to file the impugned charge sheet, which is liable to be quashed on this ground also. 11. As stated supra, the petitioner filed an application before the trial court seeking discharge on the ground that the very existence / presence of THC including its percentage, quantity etc., having not been ascertained nor determined by the I.O. or the laboratory, the petitioner was entitled to be discharged from the impugned proceedings. However, the trial court without appreciating the aforesaid facts and circumstances proceeded to reject the application on the ground that the CC Laboratory report dated 20.09.2022 confirmed existence of ganja, which was a genus of cannabis; in this regard, it is relevant to note that despite having referred to the aforesaid report and subsequent communication between the I.O. and the Laboratory which clearly indicated that existence, presence, percentage, - 78 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 quantity etc., of THC was neither conclusive nor ascertained or determined, the trial court proceeded to summarily reject the application based on surmises and conjectures and without assigning cogent or valid reasons and as such, the impugned order deserves to be set aside. 12. The trial court also committed an error in failing to appreciate that the I.O. himself was unsure as to whether the sample contained ganja or not and it was in that circumstance that he thought it appropriate to seek clarification from the laboratory in this regard; having sought for such clarification as is clear from the communication dated 04.02.2023, to which the laboratory replied stating specifically that due to lack/want of equipment, it was not possible to answer the queries put forth by the I.O., in the absence of sufficient, valid, legal or acceptable material before the I.O. which established existence of ganja in the samples, the I.O. was clearly not justified in filing the impugned charge sheet based on an inconclusive report and failure to appreciate this, has resulted in erroneous conclusion. 13. The trial court failed to consider and appreciate Regulation 1.18 of the Standing Instructions No.1/88 issued by the Narcotics Control Bureau, New Delhi, or Rule 14 of the NDPS (Seizure, Storage, Sampling & Disposal) Rules, 2022, which stipulate that both qualitative and quantitative tests have to be conducted for the purpose of determining the existence of Narcotic Drugs or Psychotropic Substances; in the instant case, as stated supra, the said Regulations and - 79 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Rules have not been complied with by the respondents, which is yet another circumstance to set aside the impugned order and quash the impugned proceedings. 14. In Mujib Mehaboob’s case supra, this Court held as under:- “12. In the case on hand, the alleged seizure from this petitioner is said to be 1 kg 195 gms. and it certainly falls below the commercial quantity. In the decision referred to by the petitioner's Counsel viz., Bajinder Singh's case, the Division Bench of the said High Court has held that, as per the definition under Section 2(iii)(a) of the NDPS Act, it is the separated resin alone which constitute charas and as far as the percentage is concerned, insofar as ganja is concerned, it has been held in the said case that tetrahydrocannabinol are found not only in charas, but also in ganja and the extent of the said ingredient has to be 25% in ganja and 25 to 40 % in charas.” 15. In Bharat Choudhary’s case supra, the Apex Court held as under:- “12. After carefully examining the arguments advanced by the learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] cancelling the bail granted in favour of Bharat Chaudhary (A-4), is not sustainable in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6-12-2019, two test reports dated 17-12-2019 and one test report dated 21-12-2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities. 13. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that - 80 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A- 4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited. 14. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A- 1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15-7-2021 [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] . This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh [Tofan Singh v. State of T.N., (2021) 4 SCC 1 : (2021) 2 SCC (Cri) 246] . The impugned order [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] qua A-4 is, accordingly, quashed and set aside and the order dated 2-11-2020 passed by the learned Special Judge, EC & NDPS cases, is restored. As for Raja Chandrasekharan (A-1), since the charge-sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial court.” 16. In Bal Mukund’s case supra, the Apex court held as under:- 36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each - 81 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law. 37. There is another infirmity in the prosecution case. Section 55 of the Act reads as under: “55. Police to take charge of articles seized and delivered.—An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station.” PW 7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them. 38. Furthermore, we are dealing with a judgment of acquittal. The High Court, for good and sufficient reasons, had arrived at findings of fact both with regard to voluntariness of the purported confessions made by the respondents as also compliance with the mandatory statutory provisions vis-à-vis directions issued by the Central Government in making search, seizure as also taking of samples for the purpose of chemical examination having been doubted, we do not see any reason why we should take a contrary view as it is well known that the appellate court would not interfere with a judgment of acquittal only because another view is possible. On the other hand, if two views are possible, it - 82 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 is trite, the appellate court shall not interfere. (See Animireddy Venkata Ramana v. Public Prosecutor, High Court of A.P. [(2008) 5 SCC 368 : (2008) 2 SCC (Cri) 600] )” 17. In Chandru Kunthur Raghuvegowda’s case supra, this Court held as under:- “19. The report dated January 13, 2017 issued by the Custom House Laboratory, Chennai, shows that the six samples answered the test for presence of Pseudoephedrine Hydrochloride. The foot note contained in the report is categorical to the effect that ‘quantitative analysis’ of the sample was not carried out. Thus, there has been infraction of Standing Instruction No. 1/88. Compliance with the ‘Standing Instruction’ is a requirement of law as held by the Hon'ble Supreme Court in the case of Union of India v. Bal Mukund (supra).” 18. In Bajinder Singh’s case supra, the Himachal Pradesh High Court held as under:- “9. It has been further submitted by Mr. Chitkara that stuff recovered as charas is not charas but was dried leaves of cannabis plant. In view of the decision of this Court in Panne Lal v. State of H.P., 2010 (2) Crimes 558 (H.P.), the possession of such recovered good cannot be said to be contraband good and possession of which is not an offense In support of his submissions Mr. Chitkara has referred some paragraphs of the above said judgment. For convenience, same are given as below : - “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) - 83 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 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 analyzed 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. 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, i.e. State v. Jeet Ram (Cr.A No. 363/2008), he (Dr. R.S. Verma) 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 that the stuff is cannabis product clearly suggests that the test conducted by 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 are. 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), Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant, of is not an offense We may observe - 84 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 indicates that the stuff is cannabis product, shows that tetrahydrocannabinol is 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, 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, stem and even the seeds, as we would be indicating in the later part of this and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, is the fabric of the cannabis plant, do not mean that the analysed stuff is, 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., 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 mass and resin is an ingredient of Charas, which on testing was found present. Mention in the result of analysis suggests that the witness is not even 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 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 - 85 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 “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 under the Act and that the tests were conducted by them to find if the stuff 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, 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 25-40 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, - 86 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 others 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. paraaminon 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 - 87 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 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 offense, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offense, 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 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 offense, cannot be ruled out.” 10. In view of prosecution witnesses PW-4, PW-6 and PW-7, only one bag was being carried by the accused, when apprehended and search was made. However, Ex. P-F, which was witnessed by Sunder Singh, Bijender and MHC Pushp Dev, indicated that one bag of rexine, in which a diary, used cloths were kept was also recovered. Such recovery of another bag has not been proved by the prosecution. 11. In view of the testimony of PW-7 when two samples of 25 grams each were separated for chemical analysis and each sample was sealed with three seals - 88 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 of ‘X’ and remaining charas was again put in aforesaid polythene packets and put into the same bag, which was sealed in cloth parcel with 9 seals of ‘X’ then under what circumstances another bag of rexine was found at the time of search. 12. On analysis of prosecution witnesses and the material on record, we also notice that exhibit P-J indicates examination report of CFSL as below: “Various laboratory tests were carried out with the exhibits-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.” 13. On scrutiny of statement of prosecution witnesses and material on record, we find that prosecution has failed to bring home the guilt to the appellant-accused beyond reasonable doubts. 14. In the light of verdict given by this Court in Panne Lal v. State of H.P., 2010(2) Crimes 558 (H.P.), the possession of such recovered goods cannot be said to be contraband goods and possession of which is not an offense. Therefore, chemical report given in present case is doubtful. Relying upon the decision of Panne Lal v. State of H.P, (supra), the benefit of doubt is given to the accused/appellant. 15. In our considered view the appellant/convict shall liable to be set free to his liberty forthwith, unless required in any other process of law.” 19. Similarly, in Sunil and other’s case supra, the Himachal Pradesh High Court held as under:- “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 - 89 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 versus State (Cr.ANo.267/2007) 2. Surinder Singh versus State (Cr.ANo.311/2007) - 90 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 3. Panne Lal versus State(Cr.ANo.45/2008) 4. State versus Jeet Ram (Cr.ANo.363/2008) 10. In all the aforesaid cases, reports given by the abovesaid 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 versus State (Cr.A No.45/2008), he was examined as a witness of the prosecution and in another, i.e. State versus 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 versus State, and Cr.A No.500 of 2008, Karuna Shankar Puri versus State, samples were sent to Chemical Examiner, State Forensic Science Laboratory, Junga (H.P.), and his reports read as follows: RajKumar’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, - 91 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 in 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 versus 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 analyzed 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- - 92 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 11,by the trial Court, in the case giving rise to appeal titled Panne Lal versus 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 versus 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 Section2(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 - 93 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 presence of tetrahydrocannabinol or cystolithic hair, which is the fabric of the cannabis plant, do not mean that the analyzed stuff is Charas, which means separated resin, per Section2(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 versus 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 versus 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 InternationalDictionary,Volume11,meansthedriedleaves 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 centers 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. - 94 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal versus State and as DW-1 in appeal titled State versus 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 versus 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 versus 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 25- 40 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 - 95 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 inthe 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 versus 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 - 96 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 percent 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, - 97 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 possession of which is no offence, cannot be ruled out. 32. Now, we proceed to take up the individual cases. 33. In Panne Lal versus State (Cr.A No.45/2008), Karuna Shankar Puri versus State (Cr.A No.500/2008) and Sunil versus State (Cr.A No.267/2007), no other point had been urged by the learned counsel for the appellants. Criminal Appeal titled State versus 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 versus 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 - 98 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 In-charge 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 - 99 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 later. However, there was no entry in the Malkhana Register, regarding the return of sample by the In-charge 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 versus 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, along with 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, - 100 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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 trunka 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 - 101 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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- 6Diwakar 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 - 102 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Kushal Chand did not say that the shop was searched, even in the Special Report Ex. PW- 12/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 disclosurstatement 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 versus State (Cr. A No.267/2007), Surinder Singh - 103 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 versus State (Cr. A No.311/2007), Panne Lal versus State (Cr.A No.45/2008), Raj Kumar versus State (Cr.A No.314/2008) and Karuna Shankar Puri versus State (Cr.A No.500/2008). Appeal filed by appellant Raj Kumar, i.e. Cr.A No.314 of 2008, Raj Kumar versus 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 versus 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.” 20. In Dayaram Singh’s case supra, the Madhya Pradesh High Court held as under:- “3. As per the allegations in the present case, on 19.3.2011 the police Amarpatan made a Panchanama that from the pump house of the petitioners, the alleged 2.500 kgs of Ganja was recovered by the Excise Department. The petitioners have assailed the lodging of FIR in question and subsequent proceedings undertaken in pursuance thereof on legal parameters. In order to appreciate the contentions of the learned counsel for the petitioners, it would be relevant to see the definitions as enumerated in Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act, 1985”). For ready reference, Section 2(iii) of the NDPS Act, 1985 is hereby reproduced as under:— “(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 of fruiting tops of the cannabis plant (excluding the seeds and - 104 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 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.” 4. Cannabis plant and cannabis (hemp) are two distinct contrabands under the NDPS Act, 1985. Cannabis plant means any plant of the genus cannabis. Charas is separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant. It also includes concentrated preparation and resin known as hashish oil or liquid hashish. Ganja is flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops). 5. The contraband allegedly recovered from the petitioners was subjected to chemical analysis. As per the chemical analysis report dated 31.3.2011, Ex.A-1 and A-2 were found containing greenish and whitish coloured leaves, flowers and vegetable item. The chemical microscope and thin layer chromatography examination found the contraband to be Ganja. The FSL report did not show the presence of tetrahydrocannabinol in any manner. The sample as a whole was classified as Ganja without any classification based on percentage of tetrahydrocannabinol. In case of Bhang, tetrahydrocannabinol in the sample stuff would be 15%. In case of Ganja, it would be 25% and in case of Charas, it would be between 25-40%. The presence of tetrahydrocannabinol on percentage pattern in the sample stuff would show whether it is actually Bhang, Ganja or Charas. In the absence of such percentage of tetrahydrocannabinol given in the FSL report, no other evidence would make the recovered contraband to be a Bhang, Ganja or Charas. Reference can be made to the judgment of the Himachal Pradesh High Court in Nagendra Shah v. State of HP, (2010) 4 RCR (Cri) 194. 6. Learned counsel for the petitioners, even in the absence of any such pleadings submitted that the issue is purely a legal issue and can be racked up during the course of arguments and the arguments are duly supported by the precedents in Nagender Shah's case (supra) and Anav Jain v. State of Haryana, CRM-M No. 51512 of 2022 decided on 1.12.2022, wherein the - 105 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 Court after considering the different precedents on the subject held the aforesaid proposition. As per the Working Procedure Manual of conducting the test, the Directorate of forensic Science Services, Ministry of Home Affairs, Government of India has prescribed working procedure in terms of 5.7.2.5 i.e. test for differentiation between Bhang, Ganja and Charas. 7. The FSL report is totally silent with regard to adoption of working procedure while determining the contraband to be Ganja only. In the absence of showing presence of Tetrahydrocannabinol, Cannabinol and Cannabidiol being part of manufacturing process, no offence under the NDPS Act, 1985 is made out. Para No. 29 and 30 of judgment of State of Himachal Pradesh v. Roshal Lal, 2010 SCC OnLine HP 2554 are reproduced as under:— “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 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 eystolithic 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 offense, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) - 106 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 of the Act, which is an offense, 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.” 8. The FSL report is absolutely silent about the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol, and therefore the prosecution has miserably failed to show the commission of any offence. Reference can also be made to Arjun Singh v. State of Haryana, (2004) 4 RCR (Cri) 506. Evidently the Bhang does not fall under the definition of cannabis hemp as defined under Section 2(iii) of the NDPS Act, 1985. 9. The alleged contraband recovered from the petitioners finds place at Sl. No. 55 of the table, wherein 1000 gms. would fall under small quantity and commercial quantity starts from 20 kg onwards. After filing of the charge sheet/173 of Cr. P.C., the ingredients of the FSL report cannot be improved. The FSL report is discrepant with regard to presence of tetrahydrocannabinol in any manner. The sample stuff can only be categorized as Ganja, if percentage of tetrahydrocannabinol is found to be 25%. 10. In view of the law laid down by the Division Bench of the Himachal Pradesh High Court in Nagendra Shah's case (supra) and other precedents on the subject, I am of the view that further prosecution in the aforesaid criminal case would result in futility, as the sample stuff cannot be categorized as Ganja on the basis of chemical analysis. The sample stuff has been categorized as Ganja solely on the basis of FSL report, which is discrepant in terms of percentage of tetrahydrocannabinol, rather cannabinol as a component in the sample stuff has not been mentioned in the FSL report. The FSL report has only indicated that some greenish, whitish coloured leaves and flowers were found in the sample stuff and on the basis of some chemical analysis and thin layer chromatography, sample stuff was categorized to be Ganja. In the aforesaid test, tetrahydrocannabinol was not found as a component contributing any required percentage in order to bring the sample stuff within the four corner of Ganja. 11. For the reasons recorded hereinabove, I - 107 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 deem it appropriate to accept this petition, as no bonafide purpose would be served in carrying out with the case, as the recovered article/item cannot be categorized to be Ganja by any stretch of imagination. The complicity of the petitioners on the basis of recovery of small quantity of Ganja cannot result in any conviction, as no case is made out to bring the alleged contraband within the definition of Ganja. 12. In view of the aforesaid, this petition is allowed. The FIR/Crime No. 265/2011 and subsequent proceedings undertaken in pursuance thereof are hereby quashed. Normal consequences to follow.” 21. As stated supra, the undisputed material on record will clearly indicate that the I.O. was not satisfied with the initial / preliminary report dated 20.09.2022 submitted by the CC Laboratory erroneously / wrongly confirming that the samples contained ‘ganja’ which is a ‘genus of cannabis’ and it was under these circumstances, that the I.O. sought for clarification from the CC Laboratory regarding quantity, existence, percentage of THC in the samples so as to ascertain and confirm that the same contained ‘ganja’ and its effect on the human body for the specific purpose of filing a charge sheet. In response to the same, the CC Laboratory submitted a reply categorically stating that the queries put forth by the I.O. could not be answered for lack / want of necessary / requisite equipment which was not available with the CC Laboratory. Under these circumstances, in the face of a completely inconclusive / flawed / indefinite / indecisive and unconfirmed / indeterminate report and reply submitted by the CC Laboratory, the I.O. could not have submitted a charge sheet for the alleged offences against the petitioner in the absence of legal or acceptable material in this regard and the trial court has proceeded to pass the impugned - 108 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 order erroneously rejecting the discharge application filed by the petitioner, thereby warranting interference by this Court in the present petition.” 20. In the instant case, it is an undisputed fact that no quantitative analysis / test was conducted by the respondent before filing the impugned complaint, which is yet another circumstance that would vitiate the impugned proceedings. 21. In view of the aforesaid facts and circumstances, I am of the considered opinion that the continuation of the impugned proceedings qua the petitioners would amount to abuse of process of law warranting interference by this Court in the present petitions. 22. In the result, I pass the following: ORDER (i) The petitions are hereby allowed. (ii) The impugned complaint dated 08.08.2024 and the impugned proceedings in Spl.C.C.No.1466/2024 before the XXXIII Addl. City Civil & Sessions, Special Judge, Bengaluru, for the offences punishable under Sections 22(a), 23(a), 27, 28 and 29 of the NDPS Act, - 109 - HC-KAR NC: 2025:KHC:23140 CRL.P No. 6057 of 2025 C/W CRL.P No. 4271 of 2025 insofar as the petitioner in both the petitions are concerned, are hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE MDS / SV List No.: 4 Sl No.: 8