JUDGMENT Surinder Singh, Judge (Oral) Heard and gone through the record. 2. Precisely, the case of the prosecution is that a police party headed by PW-9 SI/SHO Anup Singh was present near Forest Check Post Giri Pul, falling under Police Station, Rajgarh, in connection with traffic checking. They spotted the appellant, hereinafter referred to as “the accused”, coming on foot from the side of the PWD Gang-hut Sanaura, who on seeing the police got perplexed and started walking hastily. PW-9, aforesaid entertained suspicion of keeping some contraband by him. The accused was stopped and his identity was asked to which he disclosed. Thus, he gave him an option to be searched before the police party or before the Gazetted Officer. The accused opted to be searched by the police. To this effect, memo Ext. PW­1/A was executed. (ii) On carrying out the personal search of the accused, police recovered 400 grams stuff from the inner pocket of his jacket, which was in the shape of small billets. Out of the recovered stuff, two samples of 5 grams each were separated and sealed by making a parcel in small match boxes.PW-9 SI/SHO Anup Singh affixed the seal on it producing the impression of English letter “T”. The remaining bulk was sealed with the same seal. Its facsimile was also taken on a piece of cloth. After its use, the seal was handed over to one Daya Ram. (not examined) (iii)The case property was taken into possession vide memo Ext. PW-1/B. PW9 police also filled in the NCB forms in triplicate, one of which is on the reverse side of Ext. PX-I.(iv)The seizure of narcotic drugs was informed to Dy.S.P. Headquarters, Nahan on telephone on 25th January, 2004. Special Report Ext. PW-6/A was sent to SDPO. On the basis of Rukka Ext. PW-8/A, a formal FIR was registered.(v)The case property alongwith NCB forms and sample parcels weredeposited in the Malkhana with PW-3 MHC Ashok Kumar on the same day. The police had also prepared site plan Ext. PW-9/A of the place of alleged recovery. Both the sample parcels were sent to CTL, Kandghat on 27.1.2004 through PW- 4 Constable Ram Kumar vide R.C. Ext. PW-3/B which were deposited in the laboratory. To this effect, a receipt was also taken on the R.C. and on return, it was handed over to MHC.(vi) The sample parcels were examined in the laboratory. Both the sample parcels were sent to CTL, Kandghat on 27.1.2004 through PW- 4 Constable Ram Kumar vide R.C. Ext. PW-3/B which were deposited in the laboratory. To this effect, a receipt was also taken on the R.C. and on return, it was handed over to MHC.(vi) The sample parcels were examined in the laboratory. On the basis of the test, the Chemical Examiner was of the opinion that both exhibits contain the contents of “Charas”. The report is Ext. PX-1. 3. On completing the investigation, challanaccused. He was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He took up the stand that he was going to Rajgarh to meet his relations. On reaching Rajgarh bazaar, he went to a liquor shop. Since the liquor vendor was charging extra price, a quarrel took place. The vendor called the police. PW-9 SI/SHO Anup Singh came there in plain clothes and gave him two slaps. On this, he had a quarrel with him. Thereafter, he forcibly took him to police station and foisted a false case against him. When called upon to enter upon his defence, he did not lead any evidence in defence. 5. The learned trial Court rejected the defence as no such defence was put to PW-9 SI/SHO Anup Singh in his cross-examination. But, however, in the light of the evidence on record, the accused was held guilty as such he was convicted and sentenced to undergo rigorous imprisonment for a period of ‘two’ years and to pay a fine of ‘ 40,000/- with the default clause under Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, in short “the Act”, to which he laid challenge in the present appeal. 6. His sentence was suspended by this Court vide order dated 1.4.2005. Since then, he is on bail. 7. The first question which arises for its determination from the facts on record is whether there has been a compliance of the mandatory provisions of Section 50 of the Act. To this query, my answer would be ‘No’. 8. Section 50 of the Act lays down the condition, under which search of the person shall be conducted. 7. The first question which arises for its determination from the facts on record is whether there has been a compliance of the mandatory provisions of Section 50 of the Act. To this query, my answer would be ‘No’. 8. Section 50 of the Act lays down the condition, under which search of the person shall be conducted. It is a case of the recovery of the alleged contraband on the personal search of the accused. In such a circumstance, before conducting the search of the accused, the empowered officer is required to inform him of his right to be searched before a gazetted officer or the Magistrate, if so desired. 9. In Vijaysinh Chandubha Jadeja versus State of Gujarat, (2011 )1 SCC 609, the Constitution Bench on a reference after examining its earlier decisions on the subject, held that it is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the Act to be searched before a gazetted officer or a Magistrate. However, it is not necessary that the information required to be given under Section 50 of the Act should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said proviso. 10. In the instant case, though PW-9 SI/SHO Anup Singh stated that an option was given to the accused to be searched before the Gazetted Officer or the police and the accused opted to be searched by the police and to this effect memo, Ext. PW-1/A was executed. Neither in his statement before the Court, nor in the memo aforesaid there is mention of the right to be searched before the Magistrate or the Gazetted Officer. The memo and the statement, both are absolutely contradictory on the above score. PW-1, Prakash Chand was the Incharge of Check Post, Yashwant Nagar. He stated that the accused was asked by the police for his search before the police. The memo and the statement, both are absolutely contradictory on the above score. PW-1, Prakash Chand was the Incharge of Check Post, Yashwant Nagar. He stated that the accused was asked by the police for his search before the police. He did not make any reference with respect to the Magistrate, whereas PW-2 LHC Naresh Kumar stated that the option was given to the accused to be searched before the Magistrate or the SDM. He also omitted to say even the Gazetted Officer. 11. After scrutiny of the aforesaid evidence on this point, I find that the option given is not in conformity with Section 50 aforesaid. On the top of it, none of the aforesaid witnesses has stated that it was his right to be searched before the Magistrate. Therefore, in my considered opinion, this breach is fatal to the prosecution. (please also see Narcotics Control Bureau versus Sukh Dev Raj Sodhi, (2011) 6 SCC 392.) 12.Further, on the scrutiny of the report of analysis Ext. PX-1, I also find that it does not conform to the requirement of law. The Chemical Examiner has conducted the qualitative and quantitative tests based on microscopic and beams alkaline examinations. On former examination, the chemical examiner found the presence of cystolithic hair and the later test was positive. The resin contents of both the samples were 28.78% and 29.09% , respectively, on the basis of which the Chemical Examiner concluded that both these exhibits contain the contents of “Charas”. 13.As a matter of fact, “Charas” is one of the three forms of cannabis (hemp), as defined in Section 2(iii) of the Act, 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.” 14. In Sunil versus State of Himachal Pradesh and other connected matters, reported in Latest HLJ 2010 (HP) 207, the Division Bench of this Court, of which, I was also one of the members, had examined the same type of report inter-alia the other reports taking note of the definition of “Charas” under the Act. The Court came to the conclusion that the stuff to fall in the category of “Charas”, should be resin of cannabis plant only or the concentrated preparation and resin known as hashish oil or liquid hashish. The Court came to the conclusion that the stuff to fall in 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. 15.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. 16.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. 17.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. 18. On the basis of report Ext. PX-1, in the instant case, the stuff is opined to be the contents of “Charas” because of the presence of cystolithic hair and beams alkaline tests having been found to be positive plus the presence of the resin. The report does not show anywhere that the resin was of cannabis plant in order to bring it within the definition of “Charas”. Thus, the report aforesaid, is discrepant. Therefore, the cumulative effect of both these points is that the prosecution has failed to prove its case beyond reasonable doubt, in accordance with law. As such, the appeal is allowed and the conviction and sentence passed by the learned trial Court are hereby set aside. 19.Consequently, the accused is acquitted of the charge. Thus, the report aforesaid, is discrepant. Therefore, the cumulative effect of both these points is that the prosecution has failed to prove its case beyond reasonable doubt, in accordance with law. As such, the appeal is allowed and the conviction and sentence passed by the learned trial Court are hereby set aside. 19.Consequently, the accused is acquitted of the charge. The fine amount, if any, deposited shall be refunded to him. He is also discharged of the bail bonds entered upon by him pursuant to the order passed by this Court on 1.4.2005. 20.Send down the records.