JUDGMENT SURINDER SINGH, J. 1. APPELLANT Sher Singh was tried and charge sheeted along with his co-accused Sanjay Kumar driver for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'the Act' for allegedly transporting 1kg and 800 grams of charas in vehicle No. HP-01K-0282. At the end of trial, Sanjay Kumar, driver of the vehicle was acquitted whereas Sher Singh the present appellant, was convicted and sentenced for the offence aforesaid to undergo rigorous imprisonment for a period Rs. 1 lacs. In default of payment of ten years and to pay a fine of fine, to further undergo imprisonment for one year. He was also given benefit under Section 428 of the Code of Criminal procedure with respect to pre-trial and during trial custody. 2. IN short, prosecution case can be stated thus. On 8.12.2004 police party headed by PW12 Dheeraj Singh was on patrolling and traffic checking in official vehicle bearing registration No. HP33-0356 in the area of "Kandha". They had put a naka on the said place. (ii) Around 9.30 p.m., a van bearing registration No. HP-01K-0282 which was being driven by co-accused Sanjay Kumar reached the spot which was stopped. The appellant hereinafter referred to as "the accused" was found sitting in the said van. The driver of the van was asked to show the documents of the said vehicle but he made the excuse. Both the occupants of the vehicle were perplexed and got frightened. (iii) PW12 H.C. Dheeraj Singh suspected that the occupants aforesaid were having some offensive matter with them. As such, he sent for the witnesses through constable Surjeet Singh and brought PW4 Diwan Chand and PW5 Basant Singh both forest workers. The identity of the accused was asked in their presence. Accused was having a bag Ext. P4 which was kept in between the driver seat and adjoining to him and on checking it, police took out another blue bag Ext. P5 which was found containing envelop Ext. P6 having charas in the shape of bowls and billets (Ext. P7). (iv) The measures and scale were arranged. It turned out to be 1 kg and 800 grams. Out of the recovered quantity, two samples of 25 grams each were separated and sealed in a packet with seal impression "R". These samples were marked as A1 and A2 (Ext. P6 having charas in the shape of bowls and billets (Ext. P7). (iv) The measures and scale were arranged. It turned out to be 1 kg and 800 grams. Out of the recovered quantity, two samples of 25 grams each were separated and sealed in a packet with seal impression "R". These samples were marked as A1 and A2 (Ext. PA) and the remaining charas was put in the same packet and sealed with same seal by making a separate parcel. (v) Investigating officer also took seal impressions Ext. PW4/G and Ext. PW4/H on the piece of cloth. He also filled in the NCB forms in triplicate, one of which is Ext. PW10/E. Facsimile of the seal used on was taken on the NCB forms the spot aforesaid. (vi) Seal after its use was handed over to PW5 Basant Singh and case property was taken into possession vide seizure memo Ext. PW4/B and Ext. PW4/C. Vehicle in question was also taken into possession along with its key vide memo Ext. PW4/A in the presence of the witnesses. (vii) Site plan Ext. PW13/A of the place of alleged recovery was also prepared. Ruka Ext. PW12/B was sent for the registration of the case through constable Surjeet Kumar. Accused persons were arrested and grounds of arrest were informed to them. (viii) Thereafter the case property was produced before PW10 Inspector/SHO Mast Ram on the same day around 6 p.m., which was re- sealed by him with seal impression "M". The sample of seal used at that time is Ext. PW10/C and Ext. PW10/D. Its facsimile was also taken on the NCB forms aforesaid. (ix) After completing all the formalities, case property was handed over to PW2 MHC Bhim Singh to deposit it in the malkhana along with NCB forms, impressions of seal used to which he deposited in the malkhana. The entry in the relevant register was made extract whereof is Ext. PW2/A. (x) On 9.12.2004, one of the sample parcel A-1, NCB forms, seal impressions of 'R' and 'M', and copy of FIR were sent vide RC Ext. PW2/B through PW8 HHC Mani Ram which was deposited by him in CTL Kandaghat on 10.12.2004. After obtaining receipt on the R.C., it was delivered to MHC on his return. (xi) Special report with respect to the arrest and seizure was sent to the official superior within the statutory time. PW2/B through PW8 HHC Mani Ram which was deposited by him in CTL Kandaghat on 10.12.2004. After obtaining receipt on the R.C., it was delivered to MHC on his return. (xi) Special report with respect to the arrest and seizure was sent to the official superior within the statutory time. On examination of the sample, report Ext. PW10/F was received. In the opinion of chemical examiner the exhibit contained the contents of charas based upon the microscopic examination and beams alkaline test which were found positive and content of resin was 31.89% ww. 3. AFTER completing investigation, challan was presented in the Court for trial of the accused persons. 4. THE learned trial Court after appreciating the evidence on record convicted and sentenced accused Sher Singh and co-accused Sanjay Kumar was acquitted, as aforesaid. There is no appeal against the acquittal of the said accused however, challenge has been laid by convict Sher Singh in the instant appeal. Shri Ajay Chandel, learned counsel for the accused vehemently argued that evidence in the present case against the accused is not worthy of credence, link evidence is not complete and further that report of the analysis does not conform to the legal requirement, so as to establish it a contraband, falling within the definition of charas and further that independent witnesses have turned hostile, nothing material could be extracted from them. 5. CONTRA Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and ventilated that link evidence in the instant case is complete. Further that hostility of the independent witnesses does not shake the very foundation of the prosecution case and there are no material contradictions in the statements of the independent witnesses. It is also argued that the report in question cannot be faulted on any ground as it says that sample parcel was having content of charas. 6. WE have considered the rival contentions on behalf of the learned counsel for the parties, scanned and re-assessed the evidence on record. Pw12 H.C. Dheeraj Singh has supported the prosecution version to the extent that it was accused Sher Singh who was having bag Ext. 6. WE have considered the rival contentions on behalf of the learned counsel for the parties, scanned and re-assessed the evidence on record. Pw12 H.C. Dheeraj Singh has supported the prosecution version to the extent that it was accused Sher Singh who was having bag Ext. P4 near his seat which contained the alleged offensive matter and after taking its sample, as aforesaid, the entire case property was taken into possession, thereafter accused was arrested and produced before Pw10 Inspector/SHO Mast Ram along with case property who re-sealed the case property and deposited in the malkhana. He denied the suggestion that there was one 3rd person who was the occupant of the vehicle during previous night succeeded in escaping from the spot and bag was recovered on the next day from the jungle and the case was foisted upon the accused persons who were already detained by the police. He also denied that police party had been searching the entire forest near the Barrier throughout the night. 7. PW 11 constable Surjeet Kumar afforded material corroboration to his statement. He stated that when the said vehicle was apprehended, he arranged for the witnesses Diwan Chand and Basant Singh aforesaid in whose presence a bag which was allegedly in possession of the accused Sher Singh, was searched and offensive matter was recovered. He also identified the bag and the recovered stuff during the trial. 8. IN cross-examination, he denied the above defence taken by the accused. He further denied that after tracing out the bag containing the alleged offensive stuff, case was fabricated on the accused. He specifically denied that no recovery of the bag was effected from the accused and further that he was not present on the spot. Pw4 Diwan Chand and Pw5 Basant Singh independent witnesses, both have turned hostile as having not supported the case of the prosecution qua recovery of the alleged stuff from the accused. They were the forest workers and were allegedly present at forest check-post, Kandha. According to them, vehicle in question had come around 9.30 p.m. but not in the morning, as stated by the Investigating Officer, which was stopped by the police and next day charas was recovered from the forest. They were the forest workers and were allegedly present at forest check-post, Kandha. According to them, vehicle in question had come around 9.30 p.m. but not in the morning, as stated by the Investigating Officer, which was stopped by the police and next day charas was recovered from the forest. Although they stated that Sanjay Kumar was driver and another person, i.e., accused Sher Singh was its occupant but denied the recovery of bag from Sher Singh, however, admitted that charas was weighed with scale and measures which came out to be 1 kg and 800 grams. They also admitted that two sample of 25 grams each were separated and sealed with seal impression 'R' and the remaining charas was sealed in a separate bag with the same seal but did not know whether the specimen of seal was taken on a piece of cloth but admitted that seal after its use was handed over to Pw5 Basant Singh. They also admitted that case property was taken into possession vide memo Ext.Pw4/A which was signed by both of them. They were confronted with the statement under Section 161 of the Code of Criminal Procedure which was disputed by him to the extent that the alleged offensive matter was recovered from the bag of Sher Singh on 8.12.2004. In cross examination conducted by the accused they admitted the defence version. 9. THE critical examination of the aforesaid witnesses leads us to the conclusion that the independent set of witnesses who were otherwise forest workers in the State forest department and the version given by the official witnesses are contradictory to each other. What is stated by the independent witnesses is that the recovery of the bag was effected from the forest as one of the persons who was traveling with the accused had escaped under the dark cover and the police party with their assistance had searched for him throughout the night in the jungle but he was not traceable but only a bag was recovered which contained charas. Since accused persons were detained case property was foisted upon them. This story which has been propounded by the defence stands not probablized. Further independent witnesses stand contradicted with their statements under Section 161 of the Code of Criminal Procedure. Since accused persons were detained case property was foisted upon them. This story which has been propounded by the defence stands not probablized. Further independent witnesses stand contradicted with their statements under Section 161 of the Code of Criminal Procedure. They have admitted their signatures on seizure memo which contains the entire story and proves that the entire documents were prepared at the spot. There is nothing in evidence to show that these witnesses were terrorized or were under pressure when they had signed the aforesaid memo. 10. THE official witnesses are categorical so far as the recovery from accused Sher Singh is concerned, effected on 8.12.2004, from the bag. To that extent we find consistency in the statements of the prosecution witnesses. Now, before we hold the accused guilty for the offence charged, it is incumbent upon the prosecution to prove that recovered stuff was contraband as defined under the Act. Before this point is touched by us, we would like to examine other witnesses on record so far as link evidence is concerned. 11. PW 12 HC Dheeraj Singh categorically stated that after doing the needful on the spot, case property was produced before Inspector/SHO for re- sealing to which he re-sealed with his seal impression "M". He also took the sample of seals, NCB forms and seals on the piece of cloth thereafter deposited it in the malkhana with PW2 MHC Bhim Singh and one of the sample parcels was taken by PW8 constable Mani Ram for its analysis to CTL Kandaghat vide RC Ext. PW2/B which fact has been corroborated by the aforesaid witnesses in their statements. The report of analysis Ext. PW10/F also conforms this fact that Mani Ram aforesaid had deposited it in the Laboratory on the next day, i.e., 10.12.2004. It is also certified that sample of seals impression as well as the facsimile of the seals are available on the NCB forms. Therefore, the link evidence from the time of recovery till its analysis is complete. 12. NOW the last question which remains for determination is whether the stuff recovered from the accused falls within the definition of charas, as alleged by the prosecution. For that we shall refer to the report of analysis Ext. PW10/F. The sample, in the instant case has been examined on 18.2.2005. 12. NOW the last question which remains for determination is whether the stuff recovered from the accused falls within the definition of charas, as alleged by the prosecution. For that we shall refer to the report of analysis Ext. PW10/F. The sample, in the instant case has been examined on 18.2.2005. The chemical examiner had conducted two qualitative and quantitative tests, i.e., one was microscopic examination which discloses presence of cystholithic hair and on beams alkaline was found positive. It also contained resin to the extent of 31.89% w.w. and on the basis of this chemical examination, the examiner was of the opinion that the exhibit contained the content of charas, meaning thereby that the entire stuff was not charas but it had contents of charas. The prosecution was able to prove that it was charas. We shall have to fall back to the statutory definition of charas. 13. 'CHARAS' is one of the three form of cannabis (hemp), as defined in Section 2(iii) of the Act, which 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." 5. According to the definition of "charas", as given in Section 2(iii) (a) of the Act, 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. 6. Flowering and fruiting tops of cannabis plant have been defined to meant 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. 7. When charas, i.e. resin and/or ganja, i.e. flowering or fruiting tops of the cannabis plant, 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. 8. 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. 8. 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." 14. IN the instant case from the stuff recovered, one of sample parcels was sent for examination to CTL Kandaghat, report whereof does not show the presence of characteristic cystholithic hair nor it has been mentioned whether the resin found in the said sample was that of cannabis plant so as to bring it within the definition of charas referred to above. It also does not depict the presence of cannoniboils/tetrahydrocannabinol. In other words the report of chemical examiner did not say any thing about the source of resin. Therefore, in our considered opinion, report of the analysis Ext. PW10/F is discrepant and does not conform to the definition of charas as such the conviction and sentence passed against the accused is liable to be set aside. The State also moved an application under Section 391 read with Section 482 of the Code of Criminal Procedure (Cr.MP No.1090 of 2012) for sending the remaining bulk and sample parcel for analysis and to allow them to lead additional evidence. The Supreme Court in Thana Singh versus Central Bureau of Narcotics (2013) 2 SCC 590 observed as under:- "24. The NDPS Act itself does not permit re-sampling or re- testing of samples. Yet, there has been a trend to the contrary; NDPS courts have been consistently obliging to applications for re-testing and re- sampling. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [See: State of Kerala Vs. Deepak. These applications add to delays as they are often received at advanced stages of trials after significant elapse of time. NDPS courts seem to be permitting re-testing nonetheless by taking resort to either some High Court judgments [See: State of Kerala Vs. Deepak. P. Shah [2001 CriLJ 2690]; Nihal Khan Vs. The State (Govt. of NCT Delhi)[ 2007 CriLJ 2074]] or perhaps to Sections 79 and 80 of the NDPS Act which permit application of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While re-testing may be an important right of an accused, the haphazard manner in which the right is imported from other legislations without its accompanying restrictions, however, is impermissible. Under the NDPS Act, re-testing and re-sampling is rampant at every stage of the trial contrary to other legislations which define a specific time-frame within which the right may be available. Besides, reverence must also be given to the wisdom of the Legislature when it expressly omits a provision, which otherwise appears as a standard one in other legislations. The Legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944, permitting a time period of thirty, ten and twenty days respectively for filing an application for re- testing 25. Hence, it is imperative to define re-testing rights, if at all, as an amalgamation of the above- stated factors. Further, in light of Section 52A of the NDPS Act, which permits swift disposal of some hazardous substances, the time frame within which any application for re-testing may be permitted ought to be strictly defined." 15. THE Supreme court took note of Section 52-A of the Act and directed that after completion of necessary tests by the laboratories concerned, results of the same must be furnished to all parties concerned with the matter. Any requests as to re- testing/re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re- testing/re-sampling shall be entertained thereafter. These may, however, be permitted, in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re- testing/re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/re-sampling is strictly prohibited under the Act. 16. IN view of the above situation as also the fact that no compelling circumstances have been stated in the application by the State, the request for re-testing cannot be allowed. As such the application is dismissed. In result, the prosecution has failed to prove the case against the accused in accordance with law beyond doubt, therefore, his conviction and sentence is set aside, he is already on bail as his sentence was suspended, his bail bonds stands discharged. The fine amount, If any paid, shall be refunded.