Dharam Chand Chaudhary, J.(Oral)State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Special Judge, Kullu, Division at Kullu has erroneously acquitted the accused of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act in short), vide impugned judgment dated 1.12.2012 passed in Sessions trial No. 50 of 2010.

2. The legality and validity of the impugned judgment has been questioned before this Court on several grounds, however, mainly that the trial Court has miserably failed to appreciate the evidence available on record in its right perspective and also the law applicable to the case in hand.

3. The prosecution case, as disclosed from the record, in a nut shell, is that a police party headed by PW-7 SI Het Ram of Police Post City Akhara Bazar, Kullu accompanied by Constable Anil Kumar and Constable Diwan Chand (PW-6) vide rapat Ext. PW-2/A proceeded for patrolling at night time i.e. around 12:45 AM. It was around 3:00 AM when the police party present at Bhootnath temple, the accused was spotted coming from left bank road towards bridge connecting Bhootnath temple. On seeing the police party, the accused tried to escape, however, was apprehended by PW-7 with the help of police officials accompanying him. On enquiry, the accused has disclosed his name and other antecedents. Though, Constable Anil Kumar was deputed to call someone for being associated as independent witness, however, due to odd hours no one was found available. PW-7 SI Het Ram had thus associated Constable Anil Kumar and PW-6 Constable Diwan Chand as witnesses and apprised the accused about his legal right of being searched either before a nearby Magistrate or a Gazetted Officer vide memo Ext. PW-6/A. He, however, agreed for his search by the police itself. PW-7 SI Het Ram had thus offered his own search first to the accused vide memo Ext. PW-6/B, however, nothing incriminating could be recovered from his possession. It is the bag Ext. P-2, the accused was holding with him, which was searched and charas weighing 825 grams recovered therefrom. After sampling and sealing process and filling up the NCB-I form Ext. PW-3/D in triplicate, the recovered charas was taken into possession vide recovery memo Ext. PW-6/D. The sample of seal Ext. PW-6/C was drawn separately. A copy of the recovery memo was supplied to the accused free of costs. It is thereafter, the rukka Ext. PW-3/A was prepared and handed over to PW-6 Constable Diwan Chand for being taken to Police Station Kullu for registration of the case. On receipt of rukka Ext. PW-3/A, SI Tej Ram (PW-3), the then Addl. SHO, Police Station Kullu has registered FIR Ext. PW-3/B. The accused was thereafter arrested. He was apprised about the grounds of his arrest i.e. the offence he committed and the sentence provided therefor under the NDPS Act. The information qua his arrest was also given to the persons of his choice.

4. On completion of the investigation at the spot, PW-7 SI Het Ram has produced the accused and also the case property before Addl. SHO Tej Ram who has resealed the case property with seal A and also filled in the relevant columns of the NCB-I form Ext. PW-3/D. The facsimile of seal A Ext. PW-3/E was drawn separately. The case property was thereafter deposited in the malkhana with MHC Police Station, Kullu for safe custody. The special report Ext. PW-5/A was prepared and submitted to Addl. Superintendent of Police, Kullu. On receipt of the report of chemical examiner Ext. PW-7/D, report under Section 173 Cr.P.C., 1973 was filed against the accused in the trial Court.

5. Learned Special Judge on appreciation of the report and the documents annexed therewith has concluded that a prima-facie case under Section 20 of the NDPS Act is made out against the accused. Charge against the accused was framed accordingly. Since he pleaded not guilty to the charge therefor, the prosecution was called upon to produce evidence in order to sustain the charge against accused persons.

6. The prosecution in order to sustain the charge against the accused has examined seven witnesses in all. The material prosecution witnesses are PW-6 Constable Diwan Chand and PW-7 I.O. SI Het Ram. The remaining prosecution witnesses are also police officials, however, formal as they remained associated during the investigation of the case in one way or the other.

7. The accused in his statement recorded under Section 313 Cr.P.C., 1973 has denied the prosecution case as incorrect or for want of knowledge. His defence is that the case has been falsely registered against him. He opted for not producing any evidence in his defence.

8. The learned trial Court, while rejecting all the arguments addressed on merits by learned defence counsel and holding that the charas was recovered from the conscious and exclusive possession of the accused, has proceeded to record the findings of acquittal on the sole ground that the report of the Chemical Examiner Ext. PW-7/D is silent about the resin contents in the recovered charas by applying the ratio of the judgment of Division Bench of this Court in State of H.P. v. Mazar Hussain reported in 2012(1) Drugs Cases (Narcotics) 415, in which reliance has been placed on a previous judgment, again that of a Division Bench of this Court in Sunil v. State of Himachal Pradesh, 2010 (1) Shim. L.C. 192. The relevant portion of the impugned judgment reads as follows:

21. The Honble Division Bench of our own Honble High Court in State of H.P. v. Mazar Hussain reported in 2012(1) Drugs Cases (Narcotics) 415 has held in para No. 5,6 and 7 as under:-

5. Inter alia on many other grounds, one important aspect which requires consideration is that in view of the report Ext. PW-11/C, Assistant Chemical Examiner has observed as below:

Various scientific tests such as physical identification, chemical and chromatographic tests were carried out in the laboratory with the exhibit marked as S-1 under reference. The tests performed above indicated cannabinoids including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of Cystolithic hairs in the sample. Charas is a resinous mass and resin is an active ingredient of charas, which on testing was found present. The quantity of resin as found in the sample is 34.29% w/w. The result thus obtained is given below:"

6. We also notice that Assistant Chemical Examiner in Ext. PW- 11/C has not indicated the percentage of tetrahydrocannabinol in sample. In the similar facts and circumstances, the Division Bench of this court in 2010(1) Drugs Cases (Narcotics) 63: 2010 (1) Shim. L.C. 192 Sunil v. State of HP has observed as below:

23. In Parikhs 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 25040 per cent.

29. As noticed herein above, 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 Parikhs 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 to 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.

7. Since in the present case, no percentage of tetrahydrocannabinol has been mentioned, in such circumstances, were are of the considered view that the contraband good, so recovered, cannot be said to be charas in view of report Ex. PW-11/C of Assistant Chemical Examiner and in view of the judgment of this Court (DB) in Sunil (supra).

22. The relevant portion of the chemical report Ex. PW-7/D in the present case is reproduced as under:-

Result of the Examination.

Various scientific tests such as physical identification, chemical & chromatographic analysis were carried out in the Laboratory with the exhibit under reference. The above tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of cystolithic hairs in the exhibit. Charas is a resinous mass and resin is an active ingredient of Charas, which on testing was found present in the exhibit. The quantity of resin as found in the exhibit was 28.64% w/w. The result thus obtained is given below.

The exhibit is extract of cannabis and sample of CHARAS".

9. It is worth mentioning that a Larger Bench of this Court in State of Himachal Pradesh v. Mehboob Khan 2013(3) Him.L.R. (FB) 1834 has reconsidered the law laid down by the Division Bench in Sunils case (supra) and concluded as under:-

a. After taking into consideration section 293 of the Criminal Procedure Code, 1973 Sections 45 and 46 of the Indian Evidence Act and the Law laid down by the apex Court as well as various High Courts discussed in detail hereinabove, we conclude that on account of non-consideration of the same by the Division Bench, which has rendered the judgment in Sunils case, correct law on the expert opinion and the reports assigned by the scientific expert after analyzing the exhibit has not been laid down.

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

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

d. There is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sunils case that for want of percentage of tetrahydrocannabinol or resin contents in the samples analyzed, the possibility of the stuff recovered from the accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an offence, cannot be ruled out, is not a good law nor any such interpretation is legally possible. The percentage of resin contents in the stuff analyzed is not a determinative factor of small quantity, above smaller quantity and lesser than commercial quantity and the commercial quantity. Rather if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but lesser than commercial and commercial, in terms of the notification below Section 2 (vii-a) and (xxiii-a) of the Act.

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

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

10. A Larger Bench, therefore, has held that the judgment in Sunils case supra does not lay down the correct legal position as to what is Charas and what shall be its constituents in legal parlance and as such not to be followed. Therefore, in view of the Larger Bench judgment in Mehboob Khans case (supra), the impugned judgment can not be said to be legally and factually sustainable and the same as such is quashed and set aside. The case, however, is remanded to learned trial Court for fresh disposal in accordance with law. The parties through learned counsel representing them are directed to appear before the trial Court on 7th November, 2016. Record be sent back so as to reach in the trial Court well before the date fixed.

11. The appeal is accordingly allowed and stands disposed of.