JUDGMENT Justice R.B. Misra, J. The Criminal Appeal No. 47 of 2008 has been preferred by appellant/convict Yusuf Mohammad (in jail) through Mr. Anoop Chitkara, Learned Advocate, and Criminal Appeal No. 44 of 2008 has been preferred by appellant/convict Nagender Shah (through jail) and Mr. Chaman Negi, is representing him as a Legal Aid Counsel, The aforesaid Criminal Appeals have been preferred under Section 374 (2) of the Code of Criminal Procedure read with Section 36-B of NDPS Act, against the judgment dated 17th December, 2007, passed by learned Special Judge, Chamba Division, Chamba, District Chamba, Himachal Pradesh, in Sessions case number 8-K/VII/2007, whereby learned Trial Court has convicted both the appellants under Section 20 (b) (ii) (C) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and both the appellants have been sentenced under Section 20 (b) (ii) (C) and 29 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called as NDPS Act) to undergo rigorous imprisonment for Ten Years and also to pay fine of Rs. 1,00,000/-. In default of payment of fine, further rigorous imprisonment for a period of two years. 2. Since, both the appeals have been preferred separately Vagainst the common judgment adjudicating the cases of both the appellants/convicts, as such, these appeals are taken up together for the adjudication and disposal. 3. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. On the intervening night of 6/7.1.2.007, the police party headed by Inspector SHO Surinder Sharma, while on patrolling reached at Ghurkari Chowk at about 11.45 P.M., where two persons, sitting in the rain shelter, after seeing the police vehicle started running away and both these persons were over-powered by the police party. On enquiry, they disclosed their names as Nagender Shah and Yusuf Mohammad. Appellant/convict Nagender Shah was carrying one bag over his shoulder and on search of the said bag, one plastic packet was found containing charas and on weighing it was found 1 Kg 500 grams charas and out of which two samples of 25 grams each were taken out separately and were put into different packets duly sealed with seal 'K' and the remaining charas was also put into a Rukkawas sent from the spot to the police station, on the basis of which FIR was registered, and both the Appellants/convicts were arrested. Since no independent witnesses were available, it being almost midnight of winter months, therefore, recovery of charas seizure putting seal and sending of samples to the chemical examiner were made in presence of police officials as prosecution witnesses. After investigation, both the appellants/convicts were charged for offence under Section 20 (b) (ii) (C) and Section 29 (1) of NDPS Act, and the case was committed to the sessions trial. 4. In order to prove its case, the prosecution examined as many as ten prosecution witnesses, whereas, the appellants/convicts in their statements under Section 313 of Cr.P.C., have denied the prosecution case and have shown their innocence. 5. On scrutiny of the prosecution witnesses and material on record, we notice that PW, 1 SI Kamal Jit Singh, PW.2 Yunus Mohammad, PW.3 H.C, Subhash Chand, PW.4 Harbans La1, PW.5 HC Joginder Singh, PW.6 HHC Som Raj, PW.7 Pappu, PW.8 Gurdass Ram, PW.9 Inspector Surinder Sharma and PW.I0 H.C. Kuldeep Singh, were examined as prosecution witnesses. 6. PW. 1 Sf Kamal, Jit Singh, has stated that on 7.1.2007, he accompanied SHO Surinder Sharma along-with other police officials, while on way back from Nagrota Bagwan to Kangra in the official vehicle and when reached at Ghurkari at about 11.45 P.M., two persons were found sitting in the rain shelter and these persons started running away after seeing the police party but these persons were overpowered. On enquiry, these persons disclosed their names. Appellant/convict Nagender Shah was carrying a bag over his shoulder and on checking the bag, a plastic packet was found in which charas in the shape of Baties (sticks/wicks) were found. On weighting, the total charas 1 Kg 500 grams were found and out of this charas two samples of 25 grams each were taken and remaining charas was put into same plastic cover with seal 'K' and remaining two parcels of samples separately put into different packets and duly sealed with seal 'K'. The charas as well as samples were taken into possession vide Memo Ex. PW.1/A over which, PW.1 has signed at encircled portion 'A' and HC Tilak Raj also put the signatures on the same. 7. The charas as well as samples were taken into possession vide Memo Ex. PW.1/A over which, PW.1 has signed at encircled portion 'A' and HC Tilak Raj also put the signatures on the same. 7. In his cross-examination, PW.1 has stated that there are 20-25 shops situated in Ghurkari Chowk and there were about 10 tea shops at Ghurkari Chowk, and the passengers used to get down from the buses at Ghurkari chowk and also used to board the buses. He has further stated that Up-Pardhan of the area is also running a shop at Ghurkari chowk and also resides there. On enquiry, the Up-Pardhan was not available in his house. According to PW.1 he was sitting in the Gypsy on the back portion and the persons in the rain shelter were visible from the distance of 30-40 yards. There is provision of electric lights on the spot and after seeing the police party, both the accused ran away from the spot. However, they were overpowered by all the police officials at a distance of 1015 steps. According to PW.1, all the proceedings were conducted on the spot. 7. PW.2 Yunus Mohammad, said to be brother of appellant/convict Yusuf Mohammad, has stated in his cross examination that the attendance register was not taken into possession in his presence and his signatures were obtained on a blank paper. As such, PW.2 was not found supporting the prosecution case. 8. PW.3 H.C. Subhash Chand, has stated that on 8.1.2007, HHC Kuldeep Singh brought special report to be delivered to Superintendent of Police, Kangra, and the same was handed over to the PW.3. This witness is also not very material for the prosecution case. 9. PWA HHC Harbans Lal has stated that on 8.1.2007, he remained posted at Police Station, Kangra, when MHC Joginder Singh handed over to him one sealed parcel to be delivered at CFSL, Chandigarh (Central Forensic Science Laboratory) and it was delivered along with sample seal. On 8.1.2007, sample was returned with the objection and again it was deposited and thereafter, on 11.1.2007 PW.4 handed over the same seal impression along with sealed parcel of the sample which was delivered at CFSL, Chandigarh and PW.4 brought the receipt after making the delivery. 10. On 8.1.2007, sample was returned with the objection and again it was deposited and thereafter, on 11.1.2007 PW.4 handed over the same seal impression along with sealed parcel of the sample which was delivered at CFSL, Chandigarh and PW.4 brought the receipt after making the delivery. 10. PW.5 H.C. Joginder Singh has stated that on 7.1.2007, Additional SHO/SI Gurdas Ram deposited one sealed packet duly sealed with seals 'K' and 'M' containing charas and also deposited two samples part duly sealed with seals 'K' and 'M' along with NCB (Narcotic Control Bureau) form and the entry was incorporated into Malkhana register. Thereafter, on 8.1.2007, one sealed parcel of sample along with NCB form were handed over with HHC Harbans Lal to be delivered at CFSL, Chandigarh. 11. In the cross-examination of PW.5, has stated that there is no entry in the Malkhana register regarding deposit of NCB form along with the sample as well as bulk of the contraband items PW.5 has further stated in his cross-examination that it is correct that HHC Harbans Lal was handed over the sample on 8.1.2007 to be delivered at CFSL, Chandigarh and thereafter he did not turn up. From the testimony of PW.4 Harbans Lal, PW.5 HC Joginder Singh has handed over him to a sealed parcel to be delivered at CFSL, Chandigarh along with sample seal on 8.1.2007 and sample was returned with the objection and thereafter on 11.1.2007, PW.4 handed over the same seal impression of sample to CFSL, Chandigarh. 12. From the testimony of PW.5 HC Joginder Singh, nothing has been revealed that on 8.1.2007, sample was returned with the objection and again it was deposited and thereafter on 11.1.2007, the sample was handed over with seal impression along with seal parcel for making the delivery to CFSL, Chandigarh. PW.5 HC Joginder Singh has stated that on receiving one sealed packet, duly sealed with seals 'K' and 'M' containing charas and also two sample parts sealed with seals 'K' and 'M' with NCB form in Malkhana. PW.5 HC Joginder Singh has stated that on receiving one sealed packet, duly sealed with seals 'K' and 'M' containing charas and also two sample parts sealed with seals 'K' and 'M' with NCB form in Malkhana. Thereafter on 8.1.2007, one sealed parcel of sample along with NCB form were handed over PW.4 HHC Harbans Lal, but nothing is known from the testimony of PW.5 HC Joginder Singh that as to when the sample was returned with the objection and through whom the samples were returned and whether after return the samples were again put in the Malkhana and initially after depositing the sample as well as sealed packet on 7.1.2007 in Malkhaha, then how the same was taken out from the Malkhana and under what circumstance, again sample was handed over to PW.4 Harbans Lal, who thereafter, handed over the same with seal impression on 11.1.2007 to CFSL, Chandigarh. 13. PW.6 HHC Som Raj, said to be associated in investigation, has stated that in his presence Yunus Mohammad produced one attendance register of his brother Yusuf Mohammad appellant/accused, which was taken into possession vide memo Ex. PW.2/A. HHC Hoshiar Singh as well as Yunus Mohammad put their signatures on Memo EX. 6.B. PW.6 in his cross-examination has stated that there is no paging in the register Ex. PW. 6/A. 14. PW.7 Pappu, a labourer, who had been working with Anupam Lal, Contractor, is of no help to the prosecution case as he has been declared hostile. 15. PW.8 Gurdas Ram stated in view of the prosecution case, that on 7.1.2007, SHO/ Inspector Surinder Sharma produced one sealed parcel along with another two sealed sample parcels duly sealed with seal 'K' which were resealed by PW.8 with seal 'M'. The specimen impression of the same is Ex. PW.8/C and was deposited in Malkhana. In cross-examination, PW.8 has stated that after use of the seal remained with PW.8, however, PW.8 was not associated as a witness at the time of re-sealing the case property including sample part. 16. PW. The specimen impression of the same is Ex. PW.8/C and was deposited in Malkhana. In cross-examination, PW.8 has stated that after use of the seal remained with PW.8, however, PW.8 was not associated as a witness at the time of re-sealing the case property including sample part. 16. PW. 9 Inspector Surinder Sharma, the main prosecution witness in support of the prosecution case, has stated that on intervening night 6/7.1.2007, after seizure of 1 Kg 500 grams of charas from a bag being carried by Nagender Shah appellant/convict, two samples of 25 grams each were taken arid put in to a separate packets duly sealed with seal 'K' and the bulk of charas was also put into different packet duly sealed with seal 'K'. PW.9 sent the Rukka Ex. PW.9/B through HHC Sanjeev Kumar. PW.9 has taken into possession bag Ex. P1, plastic Ex. P2, charas EX. P3 and sealed samples EX. P4 vide memo Ex. PW.1/A. PW.9 has also sent a special report, Ex. PW.8/A, on 8.1.2007 through HHC Kuldeep Chand to Superintendent of Police. On 12.1.2007, brother of Yunus Mohammad, brother of appellant/convict Yusuf Mohammad, produced an attendance register in which attendance of the appellant/convict Nagender Shah has been shown and the same was taken into possession vide Memo Ex. PW.6/B. PW.9 in his cross-examination, has stated that electricity was available on the spot, but PW.9 has not shown the electric lights on the spot map Ex. PW.9/B, however, the appellants/convicts were visible from the vehicle, as they were sitting inside the rain shelter at left corner. There were 20-25 steps at Ghurkari Chowk including 4-5 tea shops. PW.9 has further stated that appellant/convict Yusuf Mohammad is resident of village at a distance of about 25 Km from his village, and that register Ex. PW.6/A contained the entries for the month of December, 2006 to January, 2007. 17. PW.10 HHC Kuldeep Singh was handed over the special report to him to be delivered to Superintendent of Police, which accordingly delivered by PW.10. 18. From the testimonies of prosecution witnesses, we notice that PW.2 did not support the prosecution case and PW.2 was declared hostile. No independent witnesses were associated except PW.2 Yunus Mohammad, an agriculturist, brother of appellant/convict Yusuf Mohammad as well as PW.7 Pappu doing the work of labourer, who too has not supported the prosecution case. Besides them neither any independent witness was associated nor examined. No independent witnesses were associated except PW.2 Yunus Mohammad, an agriculturist, brother of appellant/convict Yusuf Mohammad as well as PW.7 Pappu doing the work of labourer, who too has not supported the prosecution case. Besides them neither any independent witness was associated nor examined. According to the prosecution, at midnight, independent witnesses were not available despite the endeavour having been made by the prosecution. 19. Mr. Anoop Chitkara, Learned counsel for appellant/convict has made the following submissions:- (i) Since the case of the prosecution is based on the statements of the police officials, therefore, in absence of independent witnesses, their testimonies have to be seen with greater care and caution and the aspect to be corroborated by material witnesses. (ii) The substance, which has been tested by the Laboratory vide report EX. PW.9/J to be the charas, was in fact the sample drawn from the bulk seized from appellant/convict Nagender Shah. (iii) No criminal offence has been made out against Appellant/convict Yusuf Mohammad under Section 29 (1) of the NDPS Act; (iv) The possibility of the alleged charas being only Bhang i.e. the dried leaves of cannabis plant, the possession of which is no offence, cannot be ruled out and hence, no offence is made out under Section 20 of NDPS Act. 20. The recovery of charas was said to have been made from the appellant/convict Nagender Shah, who was accompanied by appellant/convict Yusuf Mohammad, however, both were charged under Sections 20 (b) (ii) (C) and Section 29 (1) of the NDPS Act. Whereas, appellant/convict Yusuf Mohammad has nothing to do as he was simply accompanying Nagender Shah and he was having no knowledge of anything carried by appellant/convict Nagender Shah in his bag. 21. According to Mr. Anoop Chitkara, Section 8 of NDPS Act deals with prohibition and Section 20 deals with punishment in contravention with cannabis plant and Section 29 deals with punishment in respect of abetment and criminal conspiracy. Abetment has been defined in Section 107 of IPC and criminal conspiracy has been provided under Section 120B of Indian Penal Code. But appellant/convict Yusuf Mohammad by virtue of his presence cannot be said to be abettor for the act and conduct of Nagender Shah, as he was ignorant of material, if any, in possession of appellant/convict Nagender Shah. It has also been submitted by Mr. But appellant/convict Yusuf Mohammad by virtue of his presence cannot be said to be abettor for the act and conduct of Nagender Shah, as he was ignorant of material, if any, in possession of appellant/convict Nagender Shah. It has also been submitted by Mr. Anoop Chitkara appearing on behalf of appellant/convict Yusuf Mohammad, that criminal conspiracy is not prescribed and covered under Sections 8 and 20 of the NDPS Act, as such, appellant/convict Yusuf Mohammad cannot be held guilty of the offence, if any, done by appellant/convict Nagender Shah. It has also been argued by Mr. Anoop Chitkara, that prosecution has not been able to prove from statements of prosecution witnesses or on the basis of material on record that appellant/ convict Yusuf Mohammad has abetted and conspired with appellant/convict Nagender Shah, whereby later one might have committed the alleged offence. As has been submitted by learned counsel appearing on behalf of appellant/convict Yusuf Mohammad cannot be convicted either under Section 20 (b) (ii) (C) or under section 29 (1) of the NDPS Act, as the alleged charas recovered was not being carried by appellant/convict Yusuf Mohammad and in absence of any proof of abetment and conspiracy with appellant/convict Nagender Shah, who even if, has been found to have carried not the charas but something else, in such a condition also, neither appellant/convict Yusuf Mohammad nor appellant/convict Nagender Shah could be convicted under Section 20 (b) (ii) (C) or Section 29 (1) of the NDPS Act. For convenience Section 20 (b) (ii) (C) and Section 29 (1) of the NDPS Act are quoted as under:- Section 20 (b) (ii) (C) Punishment for contravention in relation to cannabis plant and cannabis - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under:- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses sells, purchases, transports, imports inter-State or uses cannabis, shall be punishable (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- "(C) and involves commercial quantity, with rigorous imprisonment for 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 and which may extend to two lakh rupees." Section 29 (1) 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, be punishable with the punishment provided for the offence.” 22. The prosecution has not been able to prove that Nagender Shah was working with Yusuf Mohammad, as the register was not reliable document, as the same was neither an official document nor was maintained in routine manner. Nothing substantial could be derived or proved by the prosecution to associate appellant/convict Nagender Shah with Yusuf Mohammad, unless conspiracy or abetment is proved. 23. In view of his submissions of Mr. Anoop Chitkara the decision of Gangaram Rama Gundkar versus The State of Maharashtra, 2002 Drugs Cases (Narcotics) 420 is relevant. For convenience paragraph 26 is referred as under:- "26. The deceased accused Gangaram was charged with the offence under Section 20 (b) (ii) (i) NDPS Act for unauthorized possession of contraband Ganja. 23. In view of his submissions of Mr. Anoop Chitkara the decision of Gangaram Rama Gundkar versus The State of Maharashtra, 2002 Drugs Cases (Narcotics) 420 is relevant. For convenience paragraph 26 is referred as under:- "26. The deceased accused Gangaram was charged with the offence under Section 20 (b) (ii) (i) NDPS Act for unauthorized possession of contraband Ganja. Accused No. 2 Laxmibai who is now the remaining appellant in this appeal was charged under Section 29 read with Section 20 (b) (i) of NDPS Act on the allegation of having abetted the commission of offence by accused No. 1 Gangaram. The learned Additional Public Prosecutor submitted that there were only two members in the house, one of whom was appellant Laxmibai. The house was consisting of 2 rooms only. So, Laxmibai was supposed to have the knowledge of the contraband which was kept in cupboard in one room. Even if it is accepted that Ganja was found in the cupboard in the house of the accused persons, it must be under the control and dominion of deceased accused Gangaram he being the head of the family. Laxmibai is not charged with the offence of possession of Ganja. She is charged with having abetted the commission of offence by Gangaram. No overt act is alleged on her part showing as to in what manner she was assisting accused Gangaram. The APP contended that she was supposed to have knowledge about the Ganja in the house. Mere knowledge would not be sufficient to constitute abetment. Probably the learned APP wanted to raise an inference on the basis of knowledge that accused Laximbai was assisting Gangaram. However, it cannot be presumed that appellant Laxmibai was assisting Gangaram. However, it cannot be presumed that appellant Laxmibai was also having knowledge of said Ganja because accused Gangaram could have kept the Ganja concealed in the cupboard. Husband may be involved in the activities even without the knowledge of his wife. Even the fact that some Ganja was found wrapped in the Sari would not necessarily raise an inference that it was to the knowledge of appellant Laxmibai, because it could have been kept so, behind her back and without her knowledge. Thus, apart from the violation of the mandatory provisions discussed above, the prosecution has no case against appellant Laxmibai on merits also. Thus, apart from the violation of the mandatory provisions discussed above, the prosecution has no case against appellant Laxmibai on merits also. For all the above reasons, appellant Laxmibai shall be entitled to an acquittal. 24. Mr. Anoop Chitkara has further argued that Ex. PW.9/J said to be an examination report of the chemical examiner received from CFSL, Chandigarh, indicates that once such exhibit marked with description (one of 'M' and two of 'K') containing exhibit-1 23.24 grams dark green coloured round mass stated to be 25 grams charas, about which result of examination was indicated as below:- “Various laboratory tests were carried out with the exbhibit-1 under reference for identification chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol analysed as given below: Exhibit-1 is a sample of charas., After the examination, the parcel containing the exhibit/remnants of the exhibit has been sealed with the seal impression as per specimen provided below:” 25. 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 versus State of H.P., 2010 (2) Crimes 558 (H.P.), the possession of such recovered good cannot be said to be contraband and possession of which is not an offence. In support of his submissions Mr. Chitkara has referred some paragraphs of the above said judgment, for convenience, same are given 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 versus State (Cr. A No. 267/2007) 2. Surinder Singh versus State (Cr. A No. 311/2007) 3. Panne Lal versus State (Cr. A No. 45/2008) 4. State versus 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. A No. 45/2008) 4. State versus 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 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. 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 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 tetrahydrocarlnabinol. 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 versus 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 tetrahydro-cannabinol 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. His saying that presence of tetrahydro-cannabinol 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 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 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 tetrahydro-cannabinol 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 versus 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. 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 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 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 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 pistil-late 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. 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 versus State and as DW1 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 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 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, 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 percent, 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. 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, 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 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. 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. 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 J 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 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 ease 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 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. 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, possession of which is no offence, cannot be ruled out." 26. Mr. Anoop Chitkara has submitted that the contraband goods said to have been recovered on 6/7.1.2007 by Nagender Shah, cannot be said to have been recovered from the control and dominion of appellant/convict Yusuf Mohammad. More so, when prosecution has failed to prove that in any way Yusuf Mohammad was assisting Nagender Shah in carrying the contraband goods, in his bag, as Yusuf Mohammad was not even aware or having knowledge about anything being carried by Nagender Shah in his bag and from this point of view also, Yusuf Mohammad cannot be said to have abetted in commission of offence, if any, under Section 20 (b) (ii) (C) and Section 29 (1) of the NDPS Act. 27. Mr. Anoop Chitkara has also submitted that though appellant/convict Yusuf Mohammad was allegedly present with appellant/convict Nagender Shah and charas was recovered from the bag being carried by Nagender Shah, then by mere presence at a place, Yusuf Mohammad cannot be held guilty for anything being carried by Nagender Shah, and if on seeing police party, running of Yusuf Mohammad himself as well as Nagender Shah cannot tantamount that they were culprits and the recovery, if any, made from appellant/convict Nagender Shah, Yusuf Mohammad cannot be held liable for anything being carried by Nagender Shah. For this purpose, a reliance has been made on Sorabkhan Gandhkhan Pathan and Anr. Versus State of Gujrat, (2006) 1 Supreme Court Cases (Cri) 508. For convenience paragraph 7 of the above said judgment is as under:- "7. For this purpose, a reliance has been made on Sorabkhan Gandhkhan Pathan and Anr. Versus State of Gujrat, (2006) 1 Supreme Court Cases (Cri) 508. For convenience paragraph 7 of the above said judgment is as under:- "7. However, we notice that so far as Accused 1, Appellant 1 herein is concerned, the contraband in question has been seized from his possession and, in our opinion, the prosecution has established the case against the said accused and the courts below have rightly convicted the said appellant. Whereas, in regard to Appellant 2, it is the prosecution case itself that he was traveling in the autorickshaw, along with three other persons. The prosecution has not produced any material whatsoever to establish that either this appellant had the knowledge that Appellant 1 was carrying the contraband or was, in any manner, conniving with the said accused in carrying the contraband. In the absence of any such material, to convict the second appellant only on the ground that he was found in the autorickshaw, rightly acquitted the other two accused on similar ground and, in our opinion, the said benefit ought to have gone to Accused 2 also. For the reasons stated, we find the prosecution has failed to establish its case against Appellant 2. Therefore, this appeal, so far as he is concerned, succeeds and the same is allowed. The said Appellant 2, if in custody, shall be released forthwith, if not wanted in any other case. However, the appeal of the first appellant is dismissed." 28. Learned Assistant Advocate General, on the other hand, has submitted that mentioning of particular provision in the charges has no importance and that will not vitiate the prosecution case. Mr. Rana has further submitted that recovery of charas in question is by chance recovery and since despite endeavour made by the prosecution the independent witnesses were not available in the night of 6/7.1.2007, as such, non examination of prosecution witnesses shall not vitiate the prosecution case. In support of his submissions, Mr. J. S. Rana, Learned Assistant Advocate General, has placed reliance on the decision of Supreme Court in Ajmer Singh versus State of Haryana, (2010) 3 Supreme Court Cases 746. In support of his submissions, Mr. J. S. Rana, Learned Assistant Advocate General, has placed reliance on the decision of Supreme Court in Ajmer Singh versus State of Haryana, (2010) 3 Supreme Court Cases 746. The relevant paragraph of Ajmer Singh (supra), where it was observed that the testimony of official witnesses, even in absence of its corroboration by independent evidence, can form basis of conviction for court is satisfied on careful and cautious appreciation of evidence; that it is otherwise available. The relevant paragraphs are extracted as below:- "19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW.3, Paramjit Singh Ahalwat, DSP, Pehowa; PW.4, Raja Ram, Head Constable and PW.5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carried onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 21. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. 21. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses have rightly come to the conclusion that the appellant was arrested and charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding. 29. It has further been submitted that it cannot be said there is no proof of abetment and conspiracy, more so, when Nagender Shah was carrying a bag, after seeing the police party• started running accompanied with Yusuf Mohammad, then in the prevailing circumstances nothing could be inferred except that Yusuf Mohammad has abetted and conspired in the conduct and misdeed of Nagender Shah. 30. Learned Assistant Advocate General also submitted that chemical report is taken to be true because it is without any tampering, as the seized samples and parcels were sent intact to CFSL, Chandigarh, and same were examined and the report in that reference has been sent as Ex. PW. 9/J, which reveals that there was no tampering and as such, chemical report has to be taken as accepted, and the seized item is charas. For this purpose, Mr. Rana has relied upon Thangam versus State, 2001 CRI.L.J. 2272. For convenience paragraph 6 of the aforesaid judgment is quoted as below:- “6. The only other contention raised by the learned counsel for the appellant is that the sample of the seal, under which the seized contraband was forwarded to the court was not sent and that the same caused serious lacuna in the case of the prosecution. In the first place, no prejudice is said to have caused to the appellant by virtue of the so called failure of the prosecution in not sending the sample of the seal, under which the contraband sample was forwarded to the court. In any event, the court while forwarding the sample for chemical examination under EX. P.5 was stated to have been duly packed and sealed the pocket, EX. In any event, the court while forwarding the sample for chemical examination under EX. P.5 was stated to have been duly packed and sealed the pocket, EX. M.O. 1 and the seal of the Court was put over it, apart from affixing the specimen of the seal on the margin of ex-P.5 and the chemical analyst in his report EX. P.7 the sealed pocket was received by him intact, for examination on 21.4.1994 that that being the factual position and the forwarding of the sample under M.O. 1 to the Court and the further forwarding of the same to the chemical analyst under Ex. P.5 was carried on strictly by following the various procedures, there was no scope for causing any tampering of the sample contained in M.O. 1 No prejudice had therefore been caused to the appellant by virtue of negligible deformity pointed out by the learned counsel for the appellant about the non-forwarding of the sample of the seal by PW.2 to the court along with ground, there is no scope for interfering with the conviction and sentence passed by the court below. The judgment of the conviction and sentence is, thus, confirmed and the appeal is dismissed.” 32. We have carefully examined the prosecution witnesses and material on record, we notice that in view of vital discrepancies emanating from the testimonies of PW.4 HHC Harbans Lal and PW.5 HC Joginder Singh, as have been discussed above, the prosecution case has become doubtful. So far as the recovery of charas is from Nagender Shah, and taking into possession and preparing sample and putting in seal and sending to CFSL, Chandigarh and obtaining the report are doubtful. A doubt has been created in view of the testimony of PW.4 HHC Harbans Lal, when he has stated in natural course being an official police witness, that on 8.1.2007 sample was returned with the objection and it was deposited. Thereafter, on 11.1.2007, PW.4 HHC Harbans Lal had handed over the same seal impression along with sealed parcels of samples to, CFSL, Chandigarh and acknowledgement of the same was not given to the prosecution as PW.4 thereafter, did not turn up/return, as after delivery having been given by PW.4. nN report to the investigation was also being noticed from the statement of PW.5 made in cross 26 examination. nN report to the investigation was also being noticed from the statement of PW.5 made in cross 26 examination. In these circumstances, the credibility of the statement PWA HHC Harbans Lal cannot be relied upon, more so, when Malkhana register was not tendered in evidence. However, nothing is known as to where and how the sample remained between 8.1.2007 to 11.1.2007. Further, nothing could be proved by the prosecution that whether the sample taken on 6/7.1.2007, from the spot after recovery of alleged charas from Nagender Shah, was handed over to PW.4 Harbans Lal on 8.1.2007, then from 8.1.2007 to 11.1.2007 the location, position and condition was not indicated by the prosecution. Nothing is known in view of the testimony of PW.4 HHC Harhans Lal that what objections were made and why samples were returned with what objection and how the defects could be rectified, all these create serious doubt. In the light of the verdict of this Division Bench in Panne Lal (supra), inference is drawn that the recovered contraband item was not a charas, more in lack of the conclusiveness and definiteness of the chemical report given in the present case. 33. On scrutiny of the statements of the prosecution witnesses and material on record, the prosecution has failed to bring home the guilt to the appellants/convicts and has failed to prove its case beyond reasonable doubt, specifically against appellant/convict Nagender Shah once guilty against Nagender Shah has not been proved, therefore, no guilt under Section 29 read with Section 20 of the NDPS Act could be said to have been proved by the prosecution against the appellant/convict Yusuf Mohammad. Accordingly, the appeal is allowed and impugned judgment dated 17.12.2007, whereby both the appellants/ convicts were convicted and sentenced, is set aside. 34. Consequently, both the appellants/convicts shall be liable to be set free to their liberty forthwith, unless required in any other process of law.