Judgment R.B. Misra, J. 1. The present Criminal Appeal has been preferred under Section 374 (2) of the Code of criminal Procedure in reference to the judgment dated 6.6.2002, passed by the Learned Sessions Judge, Mandi in Sessions trial No. 19 of 2003 dated 30.6.2004, convicting the appellant for the offence under Section 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’). 2. The prosecution case, in brief, is that on 5.2.2003 at about 5.30 p.m., the police party apprehended the convict/appellant, while carrying a bag on his right shoulder and on apprising him his legal right of being searched and on obtaining his consent, contraband good, namely, Charas 1kg 500 grams was recovered. Out of seized charas, two samples of 25 grams each were separated and put inside the polythene bag and thereafter sealed in two separate parcels with seal impression ‘T’ and samples were sent for chemical examination. After completion of the investigation the convict/appellant was chargesheeted for the aforesaid offence. 3. In order to prove its case, the prosecution has examined as many as nine prosecution witnesses, whereas convict/appellant in his statement under Section 313 of Cr. P.C has denied the prosecution case. 4. PW-2 Lot Ram was independent witness associated with the police party, however, he did not support the prosecution case. PW-3 Neel Mani and PW-4 Hardev Singh have supported the prosecution case in their official capacity. PW-4 handed over Special Report to ASP at 3.30.p.m.. PW-5 Bodh Raj handed over the sample to CTL Kandaghat. PW-6 had resealed the parcel with seal impression ‘S’ along with ‘NCB Form’ and samples were re-sealed with seal impression ‘S’ and same were handed over to MHC Ram Lal for keeping in safe custody. 5. PW-7 Ram Lal has deposed that on 5.2.2003, at about 8.00 p.m. Rukka Ex. PW-7/A was received in the police Station through Constable Mohan Singh and in that reference FIR Ex. PW-7/B was registered. PW-7 has further deposed that on 6.2.2003 at about 12.00 p.m., the SHO, Police Station Aut, handed over two sample parcels and one residue parcel which after resealing with seal impression ‘S’ were kept in safe custody. PW-8 and PW-9 had supported the prosecution case in their official capacity. 6. PW-7/B was registered. PW-7 has further deposed that on 6.2.2003 at about 12.00 p.m., the SHO, Police Station Aut, handed over two sample parcels and one residue parcel which after resealing with seal impression ‘S’ were kept in safe custody. PW-8 and PW-9 had supported the prosecution case in their official capacity. 6. On scrutiny of the evidence of the prosecution witnesses and material on record we find that the official witnesses have supported the prosecution case and recovery of contraband good was made by the police officials and samples were duly taken which were deposited in Malkhana and after resealing the samples, were sent for chemical examination. Minor discrepancy on the part of the Investigating agency is that Malkhana Register was not produced. However such contradiction shall not go to the root of the case making the prosecution case fatal Inter alia on many other grounds referred, considered and relied upon by learned Addl. Sessions Judge, Mandi for convicting the accused/appellant for carrying contraband good. One important aspect needs consideration is that on scrutiny of Ex. PW-6/A ‘NCB form’, it appears that chemical examination had indicated that on microscopic examination cystolithic hairs were found present and on quantative test resin was detected up to 29.36%. In such reference, the Chemical Examiner has opined that contraband good was ‘charas’. It has been argued by learned counsel for the appellant/convict that Ex. PW-6/A had revealed that resin was 29.36 % and such quantity in reference to the decision of this Court in Dharam Pal vs. State of H.P., 2007(2) Shim.LC 19 was not a commercial quantity. Such quantity can be more than small quantity but lesser than commercial quantity and for that the convict/appellant could not have been sentenced for more than seven years with fine. Our attention has been invited to the relevant paragraphs of the judgment Dharampal (Supra), which are extracted below:- “6. Appellants were tried and have been convicted of an offence punishable under Section 20 of the Act. This Section makes the cultivation of cannabis plant or production, manufacture, possession, sale, purchase, transport, import inter-state, export inter-state or use of cannabis punishable. Punishment varies according to the quantity, when the offence pertains to cannabis and not the cannabis plant. The punishment is rigorous imprisonment for a term which may extent to six months or with fine if the quantity is small. Punishment varies according to the quantity, when the offence pertains to cannabis and not the cannabis plant. The punishment is rigorous imprisonment for a term which may extent to six months or with fine if the quantity is small. Where the quantity is more than small but lesser than commercial, punishment is rigorous imprisonment which may extend to ten years and with fine which may extend to rupees one lakh. If the quantity is commercial, the punishment may extend to twenty years and to fine of rupees two lakh, but the minimum sentence in such a case is rigorous imprisonment for ten years and fine of rupees one lakh. 7. “Cannabis (hemp)” is defined vide clause (iii) of Section 2 of the Act, which is 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; (b) Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and © any mixture, with or without any neutral material, or any of the above forms of cannabis or any drink prepared therefrom.” As per its definition, as reproduced above, cannabis (hemp) has three forms-one is ‘chars’, second is ‘Ganja’ and third one is any mixture of the first two forms of cannabis. In the present case, appellants were tried for possessing the first form of cannabis, i.e. ‘charas’. ‘Charas’ as per above reproduced definition means 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’. From the definition it is clear that it is only the resin content of the cannabis plant which is ‘Charas’. 8. The Central Government in exercise of the powers under clauses (viii) and (xxiiia) of Section 2 of the Act has issued a notification fixing upper limit of ‘small quantity’ and the lower limit of ‘commercial quantity’ of various narcotic drugs and psychotropic substances. 8. The Central Government in exercise of the powers under clauses (viii) and (xxiiia) of Section 2 of the Act has issued a notification fixing upper limit of ‘small quantity’ and the lower limit of ‘commercial quantity’ of various narcotic drugs and psychotropic substances. Separate limits have been fixed in respect of cannabis resin, i.e ‘Charas’ or ‘hashish’ as defined vide sub-clause (a) of Clause (iii) of Section 2 of the Act and ‘mixture’ of different narcotic drugs and psychotropic substances as defied in sub-clause (c) of clause (iii) of Section 2 of the Act, vide Entries No. 23, 55 and 239 respectively. 9. In the instant case the stuff has been reported by the Chemical Examiner vide report Ex. PL to contained contents of ‘Charas’ and not ‘Charas’. This is because of the presence of the resin in the stuff. The percentage of the resin in the stuff is 28.92 percent. About the rest of the contents of the stuff, report of the Chemical Examiner is silent. That means the entire quantity of the recovered stuff was not ‘Charas’. It is not the case of the prosecution or in any case the appellants were not tried on the charge that they had the cannabis in the form of mixture. The charge, as already noticed, was that they had in their possession ‘Charas’ content in the recovered stuff was 28.92 per cent. In terms of weight, the ‘charas’ content of the recovered stuff was 462.72 grams, which is more than the small quantity but lesser than the commercial quantity as fixed vide Entry No. 23 of the aforesaid notification of the Central Government.” 8. In view of above observations made by this Court in Dharam Pal (Supra), the convict/appellant though carrying contraband good, namely, charas in which resin was found up to 29.63% can be said to be carrying contraband good which was more than the small quantity but lesser than commercial quantity. In these circumstances, the convict/appellant could have been convicted upto 10 years and fine of Rs. 1,00,000/-could have been imposed under Section 20 (ii) (B) of NDPS Act. In these circumstances, the convict/appellant could have been convicted upto 10 years and fine of Rs. 1,00,000/-could have been imposed under Section 20 (ii) (B) of NDPS Act. Keeping in view that the Contraband Good being carried was more than small quantity and lesser than the commercial quantity and the convict/appellant was found to be carrying charas weighing 1 kg 500 grams and taking the presence of percentage of resin up to 29.36%, it could safely be said that contents of charas was actually 440.40 grams. As such contraband good was above smaller quality and lesser than the commercial quantity. 9. Keeping in view the facts and circumstances of the case, we hereby impose a sentence of 9 years rigorous imprisonment and a fine of Rs. 50,000/- and in default of payment of fine, he shall have to undergo rigorous imprisonment for a period of 6 months. It has been submitted by learned counsel for the appellant/convict that accused has already undergone sentence for 9 years 7 months. 10. Therefore in view of our above discussion made above, the convict/appellant be released forthwith unless required in any other case. Release warrants be prepared and be sent to Model Central Jail, Kanda, Shimla.