JUDGMENT : Rajiv Sharma, J. The State has come in appeal against Judgment dated 13.3.2012 rendered by the learned Special Judge-II, Solan, District Solan, Himachal Pradesh in Sessions Trial No. 13-S-7 of 2012/2010, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been acquitted by the learned trial Court. 2. Prosecution case, in a nutshell, is that on the intervening night of 5/6.1.2010, a police party headed by ASI Santosh Kumar, the then Incharge, Traffic Barrier, Parwanoo started routine checking of vehicles passing through barrier. At about 12.15 AM (night) on 6.1.2010, a Haryana Roadways bus bearing registration No. HR-63-A-8394 came from Shimla side proceeding to Delhi. It was stopped for checking. Accused was travelling in the bus on seat No. 23. One more passenger was also sitting on the said bench. Accused had kept a Pithoo bag in between his legs. It was checked. It contained a packet wrapped with brown tape. One portion of the said packet was opened. It contained black coloured substance in the shape of sticks wrapped with plastic. It was found to be Charas. Balwan Singh was the driver and Om Kanwar was the conductor on the said bus. They were associated as witnesses. Accused alongwith bag was taken to the barrier at Parwano. Driver and conductor of the bus told that some of the passengers had to board train from Ambala and they were in a hurry therefore they could not take part in the investigation. Bus, alongwith passengers was allowed to go. Charas weighed 3.3 Kg. It was put in the same packet and packet was put in the bag. Bag was packed in a cloth parcel. It was sealed with four seal impressions of ‘A’. Sample seal was separately taken on a piece of cloth. NCB form was filled in and facsimile of seal ‘A’ was also taken on it. Case property was taken into possession by the police. Rukka was prepared. It was sent to the Police Station through Constable Vijay Kumar. FIR No. 3/2010 was recorded against the accused. Case property was produced before the SHO Police Station Parwanoo. He resealed the same with five seal impressions of seal ‘H’. Sample seal ‘H’ was separately taken. Case property was taken into possession by the police. Rukka was prepared. It was sent to the Police Station through Constable Vijay Kumar. FIR No. 3/2010 was recorded against the accused. Case property was produced before the SHO Police Station Parwanoo. He resealed the same with five seal impressions of seal ‘H’. Sample seal ‘H’ was separately taken. He also filled in relevant columns of NCB form and facsimile of seal ‘H’ was also taken on the NCB form. Case property, alongwith sample seals ‘A’ and ‘H’ and NCB form in triplicate was deposited with MHC Bhagi Rath, who made entry in the Malkhana Register. Case property was sent to laboratory through HHC Santosh Singh. It was found to be Charas vide Ext. PW-12/G. Special report was sent to SDPO Parwanoo. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as fourteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Accused was acquitted as noticed above. Hence, this appeal by the State. 4. Mr. Neeraj K. Sharma, Deputy Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Sat Parkash, Advocate, has supported Judgment dated 13.3.2012. 6. We have heard the learned counsel for the parties and also gone through the Judgment and record carefully. 7. Balwan Singh (PW-1) deposed that he was working as a driver with the Haryana Roadways Jhajhar Depot. On 5.1.2010, he was coming from Shimla in Bus No. HR-63-A-8394 to Delhi. He was driving the bus. Om Kanwar was conductor on the bus. They started from Shimla at about 9 PM. They reached at about 12-12.15 AM on 6.1.2010 at Police Barrier Parwanoo. Police stopped the vehicle. Police started checking the bus. Passengers demanded that they should proceed further. He alongwith passengers entered the police booth. Police told that one person had been apprehended. He did not know from where the person was apprehended. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he has admitted that Bus No. HR-63-A-8394 was enroute from Shimla to Delhi. It was searched on 6.1.2010 at about 12.15 AM at Parwanoo. He denied the suggestion that on seats No. 21, 22 and 23, only two passengers were sitting. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he has admitted that Bus No. HR-63-A-8394 was enroute from Shimla to Delhi. It was searched on 6.1.2010 at about 12.15 AM at Parwanoo. He denied the suggestion that on seats No. 21, 22 and 23, only two passengers were sitting. Volunteered that 70 passengers were in the bus. It was a 52 seater bus. He denied the suggestion that Pithunuma bag was kept by the person who was sitting on window side of the bus on seat Nos. 21 to 23, and he was apprehended by the police. He denied the suggestion that the recovered bag was wrapped with tape. Volunteered that nothing was shown to him. He denied the suggestion that accused was apprehended in Bus No. HR-63-A-8394. He admitted that he was in the bus, when bus was stopped. Conductor was also present in the bus. He denied portions ‘A’ to ‘A’, ‘B’ to ‘B’ and ‘C’ to ‘C’ of his statement mark X. He was also cross-examined by the learned defence Counsel. He admitted in his cross-examination that the bus was overcrowded. Many passengers were standing in the bus. He admitted that at Parwanoo barrier there were marketing office, Sales Tax Office and Forest Office. He also admitted that people were standing in queue to pay their taxes. There was a tea shop adjacent to the sales tax office. 8. Om Kanwar (PW-2) testified that on 5.1.2010, they started journey from Shimla to Delhi in Bus No. HR-63-A-8394. They started from Shimla at about 9 PM. At about 12.15 AM they reached Parwanoo on 6.1.2010. Police stopped the bus. Police checked the vehicle. Police were checking the luggage of the vehicle. Volunteered that he had deboarded the bus. There were 70 passengers in the bus. Two persons were sitting on seats No. 21, 22 and 23. He was also declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the Public Prosecutor, he denied the suggestion that there were 70 passengers in the bus and three persons were sitting on seats No. 21 to 23. He also denied the suggestion that police checked the persons sitting in the bus in his presence or in the presence of Driver. He has admitted that he has issued tickets amounting to Rs. He also denied the suggestion that police checked the persons sitting in the bus in his presence or in the presence of Driver. He has admitted that he has issued tickets amounting to Rs. 242/- to the passenger which are Exts. P1 to P8. However, he denied that he had issued tickets Ext. P1 to Ext. P8 to the accused. However, fact of the matter is that he has admitted his signatures on Ext. P1 to Ext. P8 in red circle. He denied portions ‘A’ to ‘A’, ‘B’ to ‘B’ and ‘C’ to ‘C’ of his statement mark X1. 9. Rati Bhan Sub Inspector, Haryana Roadways (PW-3) deposed that as per record, on 5.1.2010, Balwan Singh No. 98 was driver and Om Kanwar was the conductor on Bus No. HR- 63-A-8394. They started from Shimla in the bus on 5.1.2010. 10. LHC Jai Nand (PW-4) deposed that at 12.15 AM, Bus No. HR-63-A-8394 enroute Shimla to Delhi came at Parwanoo. It was stopped for checking. IO entered the bus alongwith other officials. Luggage of passengers was checked. ASI Santosh Kumar after checking the luggage of passengers, reached near seats No. 21 to 23 and found that two persons were sitting there. Accused was sitting on seat No. 23. A Pithunuma bag was found in between legs of person sitting on seat No. 23. Bag was wrapped with tape. On opening the bag, black substance was found in the bag. It was found to be Charas. Driver Balwan Singh and Conductor Om Kanwar were associated during the search. Accused alongwith recovered bag, driver and conductor of the bus was taken to the barrier at Parwanoo. The bag was opened in his presence. On opening the bag, Charas was recovered. It weighed 3.3 kg. Search, seizure and sampling proceedings were completed at the spot. Rukka mark AB was prepared by the IO. Rukka alongwith other documents through Constable Vijay Kumar was sent to the Police Station Parwanoo. He admitted in his cross-examination that there were offices of Excise, RTO and Forest and Marketing Check Post at Parwanoo barrier and they remained open 24 hours. He admitted that there were persons on the private contractor barrier who charged entry fee from all vehicles entering Himachal Pradesh. Vehicles also remained parked 24 hours at the barrier for paying taxes. 11. He admitted that there were persons on the private contractor barrier who charged entry fee from all vehicles entering Himachal Pradesh. Vehicles also remained parked 24 hours at the barrier for paying taxes. 11. HHC Santosh Singh (PW-7) deposed that he remained posted as HHC in Police Station, Parwanoo in the year 2010. On 6.1.2010, HHC Bhagi Rath PS Parwanoo handed over to him one sealed parcel which was resealed with seal impressions of ‘H’, five in number, vide RC No. 101/09-10 alongwith sample of seals’ A’ and ‘H’, NCB form, FIR and copy of memo. He deposited the case property alongwith above mentioned documents on 6.1.2010 at FSL Junga and handed over receipt to MHC Bhagi Rath. 12. HHC Vijay Kumar (PW-8) also deposed the manner in which accused was apprehended while sitting on seat No. 23 and contraband was recovered from his bag. It weighed 3.3 kg. Rukka was handed over to him. He took the same to the Police Station. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he admitted that 8-10 passengers told that they had to board train from Ambala. He admitted that the IO directed the Driver and the Conductor of the bus to proceed the journey alongwith passengers as the passengers were in a hurry. He admitted that sealing proceedings were conducted in the presence of witnesses Devender Kumar and Jai Nand after allowing the bus to proceed further. He identified the case property in the Court. IO tried to associate independent witnesses but all the passengers refused to be associated in the proceedings. All the offices situate at Parwanoo were busy throughout. Since officials at the tax barrier remain busy in tax collection, they were not associated in the proceedings. Persons who were in the queue refused to join investigation. Nobody came to the police barrier from the queue. He admitted that due to the slip of tongue he has admitted that driver and conductor were allowed to proceed further after sealing. 13. HC Bhagi Rath (PW-9) deposed that on 6.1.2010, at 2.30 AM, SHO Govind Ram handed over to him one sealed parcel stated to be containing 3.3 kg Charas in the shape of sticks sealed with seal impressions of ‘H’, five in number alongwith samples of seals ‘H’ and ‘A’, NCB form in triplicate, two copies of seizure memos. 13. HC Bhagi Rath (PW-9) deposed that on 6.1.2010, at 2.30 AM, SHO Govind Ram handed over to him one sealed parcel stated to be containing 3.3 kg Charas in the shape of sticks sealed with seal impressions of ‘H’, five in number alongwith samples of seals ‘H’ and ‘A’, NCB form in triplicate, two copies of seizure memos. Case property was kept by him in safe custody in the Malkhana. He entered the case property at Sr. No. 391/10 of Malkhana Register of Police Station, Parwanoo. On 6.1.2010, he handed over the parcel alongwith samples of seals ‘H’ and ‘A’, NCB form in triplicate, seizure memo to HHC Santosh Kumar vide RC No. 101/09 dated 6.1.2010 to be deposited with FSL Junga. He proved extract of Malkhana Register Ext. PW-9/B. He has not tampered with the case property during the time it remained in his possession. 14. HC Devender Sharma (PW-10) deposed the manner in which accused was apprehended while sitting in seat No. 23. Bag was searched. It contained Charas. In his cross-examination, he admitted that at Parwanoo Barrier there were Excise Office, RTO Office, Forest Department, which remained open 24 hours. He also admitted that the employees of the contractor who charged toll tax from the vehicles also remained present at Parwanoo barrier 24 hours. He also admitted that a number of vehicles remained parked at Parwanoo. Many people were standing in queue for paying their taxes. 15. ASI Santosh Kumar (PW-11) also deposed that the accused was found sitting on seat No. 23. He was carrying a bag. Bag was opened. It contained Charas. Codal formalities were completed at the spot. He also admitted that there were offices of Excise, RTO, Forest, which remained open 24 hours. Employees of the contractor remained present at the barrier for collecting toll tax from the vehicles coming towards Shimla. He has not associated any witness from the office of Excise, RTO, Forest or the employees of the contractor. Volunteered that they refused to join the investigation. He denied the suggestion that the accused was not travelling in the bus. 16. Govind Ram (PW-12) deposed that on 6.1.2010 at about 2.30 AM, Constable Vijay Kumar produced before him, a parcel sealed with seal ‘A’ having four impressions alongwith NCB form in triplicate and its columns No. 1 to 8 were filled by ASI Santsoh Kumar. He denied the suggestion that the accused was not travelling in the bus. 16. Govind Ram (PW-12) deposed that on 6.1.2010 at about 2.30 AM, Constable Vijay Kumar produced before him, a parcel sealed with seal ‘A’ having four impressions alongwith NCB form in triplicate and its columns No. 1 to 8 were filled by ASI Santsoh Kumar. The parcel was stated to be containing 3.3 Kg Charas. He found seal impressions intact. Case property was sent by ASI Santosh Kumar through Constable Vijay Kumar. Sealed parcel was put in another cloth parcel and was resealed with five seal impressions of ‘H’. Sample of seal ‘H’ was drawn. He also filled in columns No. 9 to 11 of the NCB form. Specimen of seal ‘H’ was also taken on NCB form. Case property alongwith samples of seals ‘A’ and ‘H’ and NCB form in triplicate were entered in Malkhana Register of Police Station, Parwanoo by MHC Bhagi Rath. Case property was kept in safe custody. It was sent to FSL Junga. All the seals were found intact as per FSL report Ext. PW-12/G. Prosecution has given the explanation that why the independent witnesses could not be associated at 12.15 AM. 17. Bus bearing No. HR-63-A-8394 was on its way to Delhi. It was signalled to stop at 12.15 AM at Police Barrier Parwanoo on 6.1.2010. Accused was occupying seat No. 23. He was carrying a bag. Bag was checked. It contained Charas. All the codal formalities were completed at the spot. Case property was produced before SHO. He resealed the same and deposited with MHC Bhagi Rath. Case property was sent to FSL Junga. All the seals were found intact. Prosecution case has not been supported by PW-1 Balwan Singh and PW-2 Om Kanwar in its entirety. They have resiled from their statements recorded under Section 161 CrPC. However, fact of the matter is that PW-2 Om Kanwar, in his cross-examination, has admitted his signatures on Exts. P1 to P8. These two witnesses were the employees of Haryana Roadways but have tried to help the accused by resiling from their earlier statements recorded by the police. In this case, surprisingly, PW-8 Vijay Kumar, the official witness, was also declared hostile. However, in his cross-examination by the learned Public Prosecutor he has supported the case of the prosecution. P1 to P8. These two witnesses were the employees of Haryana Roadways but have tried to help the accused by resiling from their earlier statements recorded by the police. In this case, surprisingly, PW-8 Vijay Kumar, the official witness, was also declared hostile. However, in his cross-examination by the learned Public Prosecutor he has supported the case of the prosecution. He has also deposed that the IO has tried to associate independent witnesses but all the passengers refused to be associated in the proceedings. He also deposed that the persons who were in the queues, refused to join investigation. Nobody came to the police barrier. He also deposed that the officials in tax barrier remained busy in tax collection that is why they were not associated in the proceedings. Statement of PW-4 Jai Nand inspires confidence in the manner in which accused was apprehended, codal formalities were completed at the spot. He has admitted that the offices of Excise, RTO and Marketing Check Post remained open 24 hours and employees of the contractor also used to work 24 hours. Similarly, PW-10 Devender Sharma deposed that the RTO office, Forest Office remained open 24 hours and employees of contractor also used to collect toll tax 24 hours. Vehicles were parked at Parwanoo. However, fact of the matter is that the police have tried earlier to join the passengers of the bus as witnesses but they were not ready and willing to be joined as witnesses. Officials of the RTO and Excise Offices were busy. Persons deployed in these offices could not be associated as independent witnesses. Statements of official witnesses i.e. PW-4 Jai Nand, PW-10 Devender Sharma and PW-11 Santosh Kumar duly prove that the accused was found in conscious possession of the contraband while he was travelling from Shimla to Delhi. No doubt, there is a defect in the investigation carried out by the police, however, accused can not take advantage of the defective investigation when entire evidence is taken into consideration. 18. Judgment relied upon by the learned trial Court in Sunil vs. State has been overruled by this Court in the case of State of H.P. vrs. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. 18. Judgment relied upon by the learned trial Court in Sunil vs. State has been overruled by this Court in the case of State of H.P. vrs. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. The Full Bench of this Court has categorically held that there is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample was that of Charas. It has been held as follows: “…………..The separated resin is cannabis resin not only when it is in ‘purified’ form, but also when in ‘crude’ form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in ‘crude’ form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample………….. f. We are also not in agreement with the findings recorded by the Division Bench in Sunil’s case that “ mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas” for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in ‘crude’ form or ‘purified’ form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for ‘charas’ under the Act” 19. It was also not necessary to indicate the percentage of the Tetrahydrocannabinol in the report. Prosecution has proved beyond reasonable doubt that the contraband was recovered from the conscious and exclusive possession of the accused 20. Accordingly, the appeal is allowed. Judgment dated 13.3.2012 rendered by the learned Special Judge-II, Solan, District Solan, Himachal Pradesh in Sessions Trial No. 13-S-7 of 2012/2010 is set aside. The accused is convicted for the commission of offence punishable under Section 20 of the Act. Accused be produced to be heard on quantum of sentence on 7.7.2016. Bail bonds of the accused are cancelled. 21. Registry is directed to prepare and send the production warrant to the quarter concerned. 22. However, before parting with the judgment, it is pertinent to note that a number of witnesses resile from their statements recorded under Section 161 CrPC. In the present case, the police official and the employees of Haryana Roadways have resiled from their earlier statements recorded under Section 161 CrPC. It is a dangerous trend. 22. However, before parting with the judgment, it is pertinent to note that a number of witnesses resile from their statements recorded under Section 161 CrPC. In the present case, the police official and the employees of Haryana Roadways have resiled from their earlier statements recorded under Section 161 CrPC. It is a dangerous trend. Thus, in order to discourage the practice of the witnesses resiling from their earlier statements recorded under Section 161 CrPC, Principal Secretary (Home) to the Government of Himachal Pradesh is directed to issue necessary directions to all the Superintendents of Police in the State of Himachal Pradesh to ensure that Proviso-1 to Subsection 3 of Section 161 CrPC inserted by Act 5 of 2009 (w.e.f. 31.12.2009) be followed scrupulously, in letter and spirit, in future by recording statements under Section 161 CrPC by the IO, in writing and also by audio/video/electronic means to curb the tendency of the witnesses resiling from/disowning their earlier statements recorded under Section 161 CrPC, in the interest of justice. A certified copy of this judgment be sent to the Principal Secretary (Home) to the Government of Himachal Pradesh, for doing the needful, as ordered herein above.