JUDGMENT : P.K. Tripathy, J. - Appellant chaliengea his conviction u/s 20(b)(1) of the Narcotics Drugs & Psychotropic Substances Act, 1985 (in short. N.D.P.S. Act) as per the impugned judgment dated 4.6.1992 in S.T. No. 19 of 1990 of the Court of Additional Sections Judge Jaipur. 2. The case as projected by the prosecution is that on 19.2 1990 the Inspector of Excise (PW. No. 1), while on patrolling duty, on suspicion searched the Appellant at Sathipur crossing near the bus-stop at about 4.30 A.M and during such search he found a tin box and a plastic coated bag ("Jan' bag) in possession of the Appellant. On verification of the material inside such containers in presence of independent witnesses and departmental staff he found tie tin box containing 6 kg. 750 gm. of Ganja and the bag containing 2 kg. 500 gm. of Ganja. Thus P.W. No. 1 cooked the Appellant for the offence u/s 20(b)(1) of the N.D.P.S. Act and submitted a prosecution report. In course of trial, prosecution relied on the evidence of five witnesses, the seizure-list Ext. 1 besides the paper seals used vide Exts. 2 and 3 and the material objects. i.e., the tin box and the plastic bag so also the locks and keys. P.W. Nos. 2 and 3 were respectively the Excise Constable and A.S.I of Excise who had accompanied P.W. No. 1 and PW. Nos. 4 and 5 are two unofficial witnesses who witnessed the search and the seizure. While the official witnesses supported the prosecution, at the time of mat P.W Nos. 4 am 5 turned hostile therefore prosecution was permitted to put leading questions to such witnesses Accused/Appellant while taking the plea of complete denial however did not adduce any defence evidence. On assessment of evidence on record and the ration some reported decisions (as noted in the impugned judgment), the trial Court found the fact of search and seizure to nave been proved by the prosecution. Accordingly, learned Addl. Sessions Judge convicted the Appellant and sentenced him TO undergo rigorous imprisonment for three years and to pay a fine of Rs. 10.000/- 3. Though various contentions have been advanced in the appeal memo but at the time of hearing learned Counsel for the Appellant pressed into service two points so as to seek an order of acquittal. Sessions Judge convicted the Appellant and sentenced him TO undergo rigorous imprisonment for three years and to pay a fine of Rs. 10.000/- 3. Though various contentions have been advanced in the appeal memo but at the time of hearing learned Counsel for the Appellant pressed into service two points so as to seek an order of acquittal. Learned Counsel for the Appellant argued that one page prosecution report submitted by P.W. No. 1 is not acceptable in the absence of registration of F.I.R and recording the statement of the witnesses. He further argued that when admittedly the seized articles claimed to be Ganja having not been sent for chemical analysis, the prosecution has failed to prove a case of seizure of Ganja from the possession of the Appellant so as to attract the penal provision u/s 20(b)(1) of the N.D.P.S Act. In that respect he referred to and relied on the cases of Raghu alias Raghunath Barik v. State (1993) 6 OCR 527, Pilli Dilli Dora v. Stats of Orissa (1994) 7 OCR 674, and Subash Suna v. State (1996) 11 OCR 527. 4. So far as the first point raised by the Appellant is concerned, in the case of Pilli Dilli Dora (supra) in paragraph 8 of the judgment this Court has hold that in a case of a chance detection on routine patrolling duty non-compliance of Section 42 of the Act does not vitiate the trial or the order of conviction. Apart from that P.W. No. 1 in accordance with the excise manual, is not required to maintain a case diary relating to detection of the case and the investigation thereof. Thus, this Court does not find any merit so far as the first contention is concerned so as to interfere with the order of acquittal on mat ground 5. So far as the second point as noted above, there has been a divergence of opinion by this Court in judgments rendered by Single Judges. The view expressed in the case of Raghu (supra) with reference to Section 47(a) of the Bihar and Orissa Excise Act. 1915 relating to non-duty paid Ganja and not accepting the prosecution case for absence of chemical analysis of the seized article was with a rider that "even applying the test laid down in the case of Subodh Sethi and Anr. 1915 relating to non-duty paid Ganja and not accepting the prosecution case for absence of chemical analysis of the seized article was with a rider that "even applying the test laid down in the case of Subodh Sethi and Anr. v. State 73 (1992) C.L.T. 28, the evidence was not satisfactory to establish the identity of the seized materials" in the above referred case (1992 C.L.T. 28) this Court accepted the prosecution evidence in the absence of chemical analysis of the seized liquor as sufficient to prove the seized liquid to be liquor. In the case of Pilli Dilli (supra) so also in the case Suba Suna (supra) however learned Single Judges have required the seized articles to be chemically examined for proving that such article was Ganja and in that respect. Their Lordships have strongly relied on the standing Instruction No. 1 of 1988 issued by Narcotic Control Bureau. In the case of Raghu (supra) learned Judge referred to some other reported decisions in that context which includes the cases of Radhashyam Jena alias Mohapatra Vs. State of Orissa, : State of Orissa Vs. Lokanath Sahu and Another in which similar view nave been expressed because of absence of chemical analysis of the seized article. Another case referred to therein is the case of Karpura Senapati v. State 64 (1989) CLT 763. In paragraph 9 of the said judgment while dealing with a similar contention, learned Single Judge held that: 9. The second ground of attack of Mr. Nayak is that report of chemical analysis that the article in respect of which offence has been committed is bhang mixed with ganja has not been proved. Section 47(a) of the Act makes possession of any intoxicant drug an offence. Leaves, small stalk and flowering or fruiting tops of the Indian hemp plant including all forms known as bhang, sidhi or ganja come within the definition of intoxicant drug u/s 2(13)(i) of the Act. There is no bar in the Act to prove otherwise than by chemical analysis that an article is intoxicant drug. It is true that chemical analysis is a surer test and a Court of tact in a given a circumstance may draw adverse inference by rejecting other evidence on record that it has not been proved that the article possessed is not intoxicant drug. It is true that chemical analysis is a surer test and a Court of tact in a given a circumstance may draw adverse inference by rejecting other evidence on record that it has not been proved that the article possessed is not intoxicant drug. Whether the article is an intoxicant drug would depend oh the facts proved and the explanation of the accused u/s 313, Code of Criminal Procedure considered together. Chemical analysis in not a sine qua non to find the nature of the article possessed. In this case, the records contain a report of chemical analysis which has not been marked as exhibit. This an account of lack of care by the prosecution. Be that as it may, P.W. 8 has stated that the article m respect of which the Petitioner is prosecuted is bhang mixed with ganja. Both the Courts have accepted the same. I have no reason to differ from the said finding. The second attack of Mr. Nayak also tails. 6. In the case of Baidyanath Mishra and Anr. v. The State of Orissa Vol. 34 1968 C.L.T. 1 the Apex Court while dealing with a case of conviction for possession of opium under the Opium Act. 1878, was placed with a similar situation of absence of chemical analysis of the seized article and the prosecution witnesses orally asserting the seized article to be Opium on the basis of their experience. After taking note of several decisions from different High Courts the Apex Court propounded as follows: 4. It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible-for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable, of being apprehended by the senses that a chemical analysis may be necessary. Of course, an analysis will always be necessary if there is a mixture and the quantity of morphine contained in the mixture has to be established for the purpose of definition. In the present case the amount of opium was not small. It was 3 Seers 13 Chhatanks in weight and the Excise Sub Inspector deposed that it was opium. Of course, an analysis will always be necessary if there is a mixture and the quantity of morphine contained in the mixture has to be established for the purpose of definition. In the present case the amount of opium was not small. It was 3 Seers 13 Chhatanks in weight and the Excise Sub Inspector deposed that it was opium. Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. If the Appellants, who themselves were licensed vendors of opium, had the slightest doubt about the correctness of these statements they could have challenged them either by cross-examination or by suggesting to the Court that the substance be analysed to determine whether it was opium or not. In fact, they denied that the opium was seized from them and later asserted that the house in which it was seized did not belong to them. At no stage did they suggest that it was not opium at all which would have, been an ideal defence. If it was true it appears to us that such an argument raised for the first time before this Court cannot be entertained and we cannot say that in law a Court cannot reach the conclusion that a particular object is opium without having to get the article analysed. There are numerous articles such as turpentine. Kerosene, petrol etc. which a Court may identify without having to go to the trouble of subjecting them to chemical analysis. Opium happens to be one such substance and when, as in this case, the Excise Sub Inspector, two independent search witness, the Court and the accused themselves who were licensed vendors of opium did not moot the question whether it was opium or not. We think it is too late to entertain such a plea. We do not therefore accept this argument. 7. It has to be remembered that the definition of opium as in the Opium Act (since reported) Bihar & Orissa Excise Act and the N.D.P.S. Act is not different. According to that definition, 'opium' means the coagulated juice of the opium poppy and also any mixture with or without any neutral material of the coagulated juice of the opium poppy containing more than 0.2% of murfin. According to that definition, 'opium' means the coagulated juice of the opium poppy and also any mixture with or without any neutral material of the coagulated juice of the opium poppy containing more than 0.2% of murfin. In spite of such a stringent and technical definition given 10 opium the view of the Apex Court was in the above quoted manner. On the other hand, in Section 2(iii)(b) of the act ganja has been defined to be the flowering or the fruiting tops of the canabis plaint. Therefore, it is not difficult rather it is easy for an officer serving in the Excise Department for long 22 years including his service for some years in the Ganja Gola is sufficient for him to identify Ganja without having the chemical analysis of the same. Therefore, if that principle is to be followed, then the impugned judgment is not liable to be interfere with due to lack of chemical analysis of the seized article (Ganja). But, as two of my learned esteemed brother Judges so also in previous cases some of the learned Single Judges have expressed their view for a chemical analysis to prove the article as Ganja for warranting a conviction, therefore, notwithstanding the above quoted view of the Apex Court and the decision of the learned Single Judge (as His lordship then was) in the case of Subodh Sethi (supra), this Court feels it proper that this matter should be decided by a Larger Bench. In that context the term of reference is In case of seizure of ganja whether chemical analysis of the seized article is mandatory and non-examination of such articles chemically shall render such seized articles not to be ganja. 8. Taking advantage of referring this matter for consideration by a larger Bench and keeping in view the other pending cases in different Courts in the State, Anr. term for reference is proposed for consideration of Hon'ble the Chief Justice to include to the term of reference, if so desired, for consideration by such larger Bench. That reference is as follows: If lunching of prosecution by the State under N.O.P.S. Act for possession of ganja or any form of cannabis (hemp) shall be a futile exercise in the event the investigating/prosecuting agency has not got the seized article chemically examined for determination as to whether such article is ganja or cannabis, as the case may be. That reference is as follows: If lunching of prosecution by the State under N.O.P.S. Act for possession of ganja or any form of cannabis (hemp) shall be a futile exercise in the event the investigating/prosecuting agency has not got the seized article chemically examined for determination as to whether such article is ganja or cannabis, as the case may be. 9. For the reasons noted above, while not disposing of the appeal on merit, this Court requests Honourable the Chief Justice to constitute a larger Bench to consider the term of reference.