JUDGMENT Surinder Singh, J : The appellant having felt aggrieved by the judgment of conviction passed by the learned Special Judge in RBT No.36-AR/3 of 2010/11, dated 31.3.2012, whereby he was convicted for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985, hereinafter referred to as “the Act”, for allegedly keeping in his possession 1.500 Kilograms of Charas and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of `. 1,00,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one years. He was also given the benefit of Section 428 of the Code of Criminal Procedure. 2. In short, the prosecution case can be stated thus. On 6.6.2010, PW7 HC Noop Ram was heading a police party in the area of Sainj/ Khekhar in connection with a special campaign for better traffic management. Around 6 p.m., when they were reached near Cheel Mor, they found the appellant hereinafter to be referred as “the accused” standing near the parapet near a short-cut leading to village Luhri joining the National Highway No.22. On seeing the police, he had tried to escape through the short cut. Getting suspicious, police chased and apprehended him at some distance. (ii) PW7 HC Noop Ram suspected some contraband in his possession, gave an option to the accused to be searched either before the Magistrate or Police Officers, in writing and the accused consented to be searched by the police party. To this effect consent memo Ext.PW1/A was prepared. (iii) PW7 HC Noop Ram thereafter rendered himself to be searched by the accused, but nothing incriminating was found in his possession. To this effect, memo Ext.PW1/B was prepared. (iv) Thereafter, HC Noop Ram conducted the search of the Pithu bag carried by the accused and took out the Jeans (Pants), one plastic jar and one paper box of CFL bulb. The plastic jar and box aforesaid contained 1.500 kilograms stuff, which according to HC Noop Ram was Charas. It was packed in the same container and put into the Pithu bag and a parcel was prepared and sealed with seal impression “H”. (v) NCB forms in triplicate were filled in, one of which is Ext.PW7/A. The facsimile of seal was taken on the relevant column of the NCB forms. It was packed in the same container and put into the Pithu bag and a parcel was prepared and sealed with seal impression “H”. (v) NCB forms in triplicate were filled in, one of which is Ext.PW7/A. The facsimile of seal was taken on the relevant column of the NCB forms. Its sample was also taken on a piece of cloth Ext.PW1/C. Seal after its use was handed over to PW1 C. Kam Raj. Case property was taken into possession vide seizure memo Ext.PW1/D in (xi) Special report with respect to search and seizure was sent to the SDPO, Rampur within the statutory period. the presence of PW1 C. Kam Raj and PW2 C. High Court of H.P. Shyam Lal. (vi) Ruqa Ext.PW2/A was sent for the registration of the case to the Police Station through PW2 C. Shyam Lal, which culminated into FIR Ext.PW2/B. (vii) Site plan Ext.PW7/B of the place of alleged recovery was prepared. Accused was arrested and he was informed the grounds of his arrest in writing vide memo Ext.PW1/E. (viii) The accused as well as case property was produced before PW8 SI/SHO Purshotam Dutt. He resealed the case property (Parcel) with his seal impression “A” and its facsimile was also taken on the NCB forms. (ix) Case property, seals and NCB forms were deposited with PW3 MHC Vinod Kumar on the same day for its safe custody in the Malkhana. (x) On 7.6.2010, PW3 MHC Vinod Kumar sent the entire case property to FSL Junga for its examination through PW4 C. Mool Chand. (xii) On the receipt of the report of Chemical Examiner Ext.PW8/B and after having completed the investigation of this case, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 3. To prove its case, prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. His case was that he was alighted from the bus by the police at Sainj Chowk and was taken to Police Post, where all the formalities were completed and they implicated him in a false case. He did not lead any evidence in defence. He did not state any reasons for his false implication or nurturing any enmity by the police. He did not lead any evidence in defence. He did not state any reasons for his false implication or nurturing any enmity by the police. At the end of trial, he was convicted and sentenced as aforesaid, hence the present appeal. 4. Shri Anuj Nag, learned counsel for the accused vehemently argued that the Investigating Officer did not comply with the mandatory provision of Section 50 of the Act in its letter and spirit as no independent witnesses, though available were joined during the search operation and further that the whole stuff examined by the Laboratory does not fall within the definition of Charas. The quantity based upon the percentage comes to intermediary quantity and the sentence is too excessive. 5. On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and submitted that in the above factual situation the inclusion of independent witnesses is not imperative and further that the place where the accused was apprehended was secluded and no independent witness was otherwise available. The accused did not spell out any reason for his false implication. The recovery from the accused stands proved. The whole stuff was sent to the Laboratory for its examination. The report of analysis is in conformity with law and the link evidence is complete. 6. On having heard the learned counsel for the parties and going through the record, we find the consistency in the evidence led by the prosecution qua the recovery. Further the provision of Section 50 of the Act in the case is not attracted. Since the place in question was open and secluded, thus, it was not incumbent upon the police to include the independent witnesses during the search. Further the statements of the official witnesses are worth inspiring confidence, hence can be relied upon. 7. PW7 HC Noop Ram categorically stated about apprehending the accused in the manner alleged. He further stated that on conducting the search of Pithu bag, he recovered 1.500 kilograms stuff and the entire stuff was sealed alongwith Jean(pants) in the same Pithu bag with seal impression “H”. 7. PW7 HC Noop Ram categorically stated about apprehending the accused in the manner alleged. He further stated that on conducting the search of Pithu bag, he recovered 1.500 kilograms stuff and the entire stuff was sealed alongwith Jean(pants) in the same Pithu bag with seal impression “H”. He also stated about taking of the sample of seal on a piece of cloth Ext.PW1/C and its facsimile taken on the NCB forms Ext.PW7/A. The seizure memo Ext.PW1/D to this effect in the presence of PW1 C. Kam Raj and PW2 C. Shyam Lal was prepared and its copy was supplied to the accused free of costs. During the trial, he identified parcel Ext.P1, Pithu bag Ext.P2, plastic Jar Ext.P3, paper-box Ext.P4 and Jean-Pants Ext.P5. The aforesaid case property was exhibited in the statement of PW1 C. Kam Raj. Learned trial Court had also noted down the condition of the parcel received from the FSL containing the seal of Laboratory being intact. PW1 C. Kam Raj also identified his signatures on Ext.P1 and also stated that these articles were recovered from the possession of accused. Both the above witnesses were subjected to the meticulous cross-examination by the learned counsel for the accused. They stated that shops were located at a distance of 500 meters from the place of incident. Though there was a big flow of traffic through Cheel Mor, but no independent witness was included. As already stated above, it was also not imperative that the independent witnesses should have been included. Further the culpability of the accused is writ large as on seeing the police, he had tried to run away as testified by the witnesses aforesaid. They denied that the accused was travelling in Karana-Chandigarh bus from where he was made to alight as the bag in question was found abandoned and case was planted upon the accused. The cause for implicating the accused in a false case has not been even remotely suggested. Notably in the cross-examination of PW7 HC Noop Ram, a suggestion is otherwise that somebody else was carrying the Charas in the bus wherein the accused was travelling and the accused being outsider he was falsely implicated on suspicion, has been totally denied and the defence so taken has not been probablised. 8. Further, PW2 C. Shyam Lal also made the similar statement with respect to the recovery having been effected from the accused. 8. Further, PW2 C. Shyam Lal also made the similar statement with respect to the recovery having been effected from the accused. He also stated that after the recovery of the stuff and execution of the seizure memo, he took Ruqa to the Police Station for the registration of the FIR. He also identified his signatures on the parcel cover Ext.P1 and other case property. 9. PW8 SI Purshotam Dutt stated above resealing of the case property with seal impression “A” and drawing of the sample of seal on a piece of cloth Ext.PW8/A and thereafter updating the relevant columns of the NCB forms. He further testified that the case property was deposited in the Malkhana with MHC. In cross-examination, he denied that the NCB forms were not deposited by him with the MHC in the Malkhana. 10. PW3 Vinod Kumar was MHC at the relevant time. He stated about the receipt and depositing of case property consisting of one parcel having seal impressions “H” & “A” alongwith samples of seal and its entry was made in the Malkhana register, the abstract of which is Ext.PW3/A, the perusal of which shows that the samples of seals were deposited alongwith the case property. 11. Thereafter on 7.6.2010, the parcel was sent to FSL Junga through PW4 C. Mool Chand for its analysis in the Laboratory vide RC No.27/10 which fact was testified by the MHC Vinod Kumar as well as C. Mool Chand and further stated that so long the High Court of H.P. case property remained with them, it was never tampered with. 12. A perusal of the report of analysis Ext.PW8/B also corroborates the fact of having received the said parcel in the Laboratory on 7.6.2010 through C. Mool Chand. The description of the parcel mentioned in the report clearly indicates that it bore six seals of “H” and four seals of “A” which were found intact and tallied with specimen seals and seals impression impressed on the form NCB-I. The parcel was kept in safe custody of the Assistant Chemical Examiner till the report of the same was signed and dispatched. The Chemical Examiner opined that the exhibit was examined and the same was found the extract of cannabis and sample of Charas.’ After examination of the exhibit, the parcel containing remnants of the exhibits was sealed with seal of FSL-II and returned, which during the examination of the witnesses was found intact as observed by the Court in the statement of PW1 C. Kam Raj aforesaid. 13. On the analysis of the evidence aforesaid, we find that right from the time of recovery of the Stuff aforesaid till its deposit in the Malkhana, the link evidence is complete. The stuff which was recovered reached in the Malkhana in the same condition as it was at the time of recovery. It was not tampered with and the seals were intact. 14. On further examination of the evidence, we also find and hold that the recovery of the stuff from the possession of the accused stands duly proved. But the recovery of the stuff itself will not prove the charge against the accused for keeping in possession Charas, unless it falls within the statutory definition of the Charas. 15. The whole recovered stuff was 1.500 kilograms. According to the Chemical Analyst the Charas is the resinous mass, which was found on testing of the exhibit but the quantity of the resin was 27.93 % weight-in-weight which was extract of cannabis. He also found the presence of cannabinols including tetrahydrocannabinols alongwith Cystolithic hairs in the exhibit. The above result led him to the above opinion. 16. Legally ‘Charas’ is one of the three forms 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.” 17. 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. 18. In other words, the definition does not include other parts, like flowering and fruiting tops, leaves or stem, of cannabis plant. 18. 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. 19. 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. 20. 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. 21. Applying the aforesaid definition of Charas in the instant case from the stuff recovered and the resin contents of Cannabis, the total contraband based upon the resin percentage of cannabis comes to be around 410 grams, therefore, the accused can only be held guilty for ‘intermediary quantity’ of Charas and not for ‘commercial quantity’, as such, while holding the accused guilty, his conviction is required to be converted under Section 20(b)(ii)(B) of the Act; the punishment for which is provided for a term, which may extend to ten years and to pay a fine which may extend to Rs.1,00,000/-. Thus, without disturbing the fine and default clause, the substantive sentence of “ten” years rigorous imprisonment as imposed by the learned trial Court is reduced to five years. He is also be given the benefit of the provisions of Section 428 of the Code of Criminal Procedure. 20. Thus, without disturbing the fine and default clause, the substantive sentence of “ten” years rigorous imprisonment as imposed by the learned trial Court is reduced to five years. He is also be given the benefit of the provisions of Section 428 of the Code of Criminal Procedure. 20. With the aforesaid modification in sentence, the appeal filed by the accused is partly allowed and the trial Court judgment with regard to sentence stands modified to the above extent. 21. The learned trial Court shall send a modified warrant to the Superintendent of jail concerned in conformity with the judgment passed by this Court. 22. Records of the learned trial Court be returned forthwith.