JUDGMENT : Dharam Chand Chaudhary, J. State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Special Judge (Presiding Officer, Fast Track Court), Kullu has erroneously acquitted the respondents, hereinafter referred to as ‘the accused’, from charge under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as ‘the NDPS Act’ in short, vide judgment dated 01.06.2010 passed in Sessions Trial No.32of 2007. The impugned judgment has thus been sought to be quashed and set aside with further prayer that both accused be convicted and sentenced for the commission of offences punishable under Sections 20 and 29 of the NDPS Act. 2. The facts in a nut-shell are that on 30.11.2006 in the midnight i.e. 1.30 a.m., a police party of Police Station, Bhunter, District Kullu, headed by ASI Bhagat Ram PW-10 intercepted both accused while on its way to Sujehni from Kalehli. Both accused were talking to each other. One was holding a torch in his hand whereas the other walking ahead of him. When both accused reached at the place where the police party had reached on its way to Sujehni, on seeing them, both accused got scared and tried to flee away. They were chased by PW-10 with the help of the other police personnel accompanying him and one of the accused was apprehended by ASI Bhagat Ram at a distance of 50 meters. The said accused disclosed his name as Hukam Singh. The other accused namely Daulat Ram, however, ran away taking advantage of darkness. Accused Hukam Singh has disclosed the particulars of accused Daulat Ram also. Being dead hours of night no one was available for being associated as independent witness. Therefore, PW-10 has associated Constable Harbans Kumar PW-8 and Constable Vikram Singh as independent witnesses. Accused Hukam Singh was apprised that the police has suspicion of his carrying some narcotic drug or psychotropic substance with him and that his search is required. He was apprised about his right of his being searched either before a nearest gazetted officer or Magistrate. He vide memo Ex. PP, however, opted for his search by the police present there. After obtaining the search of the said accused, PW-10 had offered his own search first to him in the presence of witnesses. No incriminating substance was recovered from the possession of PW- 10. He vide memo Ex. PP, however, opted for his search by the police present there. After obtaining the search of the said accused, PW-10 had offered his own search first to him in the presence of witnesses. No incriminating substance was recovered from the possession of PW- 10. Memo Ex.PQ was prepared in this behalf. 3. It is thereafter the search of accused Hukam Singh was conducted in the presence of witnesses. He was holding a light sky blue coloured polythene bag in his right hand. The bag was opened and it was found to be containing charas in the shape of sticks duly wrapped in polythene. When weighed, it was found one kilogram. Two samples weighing 25 grams each were separated for the purpose of chemical analysis and wrapped in two separate parcels of cloths. The remaining charas was put in the same polythene bag from which it was recovered and wrapped in a separate parcel of cloth. Each parcel was sealed with three seals having impression ‘H’. The sample of seal Ex.PR was drawn separately. NCB-I form Ex.PM/PG was filled-in in triplicate on the spot. The seal was handed over to Constable Vikram Singh for safe custody after its use. The case property was taken into possession vide seizure memo Ex.PS in the presence of both witnesses. A copy thereof was supplied to accused Hukam Singh. His signature was obtained on the seizure memo in token of supply of the copy thereof to him. The accused thereafter was apprised about the commission of the offence he committed and the provision of sentence under the NDPS Act, therefore, vide memo Ex.PT, he was arrested. Rukka Ex.P-2 was prepared and handed over to Constable Umesh Kumar with a direction to take the same to Police Station, Kullu for registration of FIR. Constable Umesh Kumar handed over the rukka to SHO Mahender Singh, who registered the FIR Ex.PK and handed over the case file to the said Constable for being taken to the Investigating Officer on the spot. The Investigating Officer prepared the site plan Ex.PZ1 and recorded the statements of the witnesses as per their version. 4. Accused Hukam Singh was produced before Mahender Singh PW-6, SHO Police Station, Kullu and he was interrogated by him. He re-sealed each parcel containing the case property with three seals having impression ‘T’. The Investigating Officer prepared the site plan Ex.PZ1 and recorded the statements of the witnesses as per their version. 4. Accused Hukam Singh was produced before Mahender Singh PW-6, SHO Police Station, Kullu and he was interrogated by him. He re-sealed each parcel containing the case property with three seals having impression ‘T’. He also filled-in column No.9 to 11 of NCB-I forms Ex.PM. Sample of seal ‘T’ was taken separately on a piece of cloth, which is Ex.PN. The SHO thereafter deposited all the three parcels with Roop Singh, the then Moherer Malkhana. The MHC made entries qua receipt of the case property in the Malkhana register, the extract whereof is Ex.PE. The sample parcels along with the seals impressions ‘H’ and ‘T’, NCB-I form in triplicate, photocopy of FIR, seizure memo and other documents were handed over by PW-4 to Constable Diwan Chand PW-1 with a direction to carry the same to CFSL, Chandigarh vide RC No.339/06, dated 30.11.2006, EX.PF. The same, however, were not accepted in the laboratory and as such brought back by PW-1 to the Police Station and handed over there to additional MHC Manoj Kumari. The sample parcels were again sent to CFSL Chandigarh vide RC No.343/06, dated 3.12.2006, Ex.PJ, through HHC Jai Kishan along with NCB-I form in triplicate, sample of seals etc. On this occasion, the parcels along with other articles were deposited in the laboratory and PW-5 on return to Police Station has handed over the receipt to MHC Manoj Kumari. 5. The special report Ex.PB was prepared. It was handed over by PW-10 to Ahmad Sayed, Dy. S.P., Kullu on 30.11.2006. The same was perused by the Dy.S.P., Kullu and made the endorsement Ex.PA thereon. The same was proved by his reader Kasmi Ram PW-2, who has further stated that the entries qua special report were made by him in the register Ex.PC. 6. Accused Daulat Ram was also arrested and his search was conduced in the presence of S/Shri Sher Singh and Suresh Kumar. At his instance torch was recovered and taken into possession vide seizure memo Ex.PW. On receipt of the reports of chemical examiner Ex.PO and PZ2, challan against both accused was prepared and presented in the Court. 7. 6. Accused Daulat Ram was also arrested and his search was conduced in the presence of S/Shri Sher Singh and Suresh Kumar. At his instance torch was recovered and taken into possession vide seizure memo Ex.PW. On receipt of the reports of chemical examiner Ex.PO and PZ2, challan against both accused was prepared and presented in the Court. 7. Learned Special Judge has chargesheeted accused Hukam Singh for the commission of offence punishable under Section 20 of the NDPS Act, whereas his co-accused Daulat Ram for the commission of offence punishable under Section 20 read with Section 29 of the NDPS Act. They both pleaded not guilty and claimed trial. Therefore, the prosecution has produced evidence in order to sustain the charge against them. 8. After recording the prosecution evidence, the statements of both accused were also recorded under Section 313 Cr.P.C. 9. On the completion of record and hearing learned Public Prosecutor as well as learned defence counsel, learned special Judge, while placing reliance on the Division Bench Judgment of this Court in Sunil Kumar versus State of Himachal Pradesh, latest HLJ, 2010 HP 207, has arrived at a conclusion that the stuff recovered from the possession of the accused Hukam Singh has not been proved to be Charas and treating the judgment in Sunil’s case supra as a binding precedent, acquitted both the accused of the charge framed against each of them with the following observations: “….. Therefore in view of this binding precedent when the report does not show that the sample was containing resin and its percentage, the report does not prove that stuff was charas and in absence of any such evidence, it cannot be concluded that accused was found in possession of any Charas. Thus, the case of the prosecution would not be established on the basis of the report of analysis Ex.PO. xxxx xxxx 15 Once it is held that, the stuff recovered from the possession of accused Hukam Singh has not been proved to be charas accused Daulat Ram cannot be held to be a party to criminal conspiracy to transport the said Charas. Moreover, there is no evidence to show that Daulat Ram accompanied Hukam Ram on the relevant day. No eye witness identified him. He was implicated on the basis of the statement made by Hukam Ram at the spot. Moreover, there is no evidence to show that Daulat Ram accompanied Hukam Ram on the relevant day. No eye witness identified him. He was implicated on the basis of the statement made by Hukam Ram at the spot. This statement was not reduced into writing and would not be admissible. Recovery of torch would not implicate him as the torch is an innocuous article which is commonly available. Hence, the case against the accused Daulat Ram is also not proved.” 10. It is worth mentioning that a Larger Bench of this Court in State of Himachal Pradesh versus Mehboob Khan 2013(3) Him.L.R. (FB) 1834 has reconsidered the law laid down by the Division in Sunil’s case supra and concluded as under:- a. After taking into consideration Section 293 of the Code of Criminal Procedure, Sections 45 and 46 of the Indian Evidence Act and the Law laid down by the apex Court as well as various High Courts discussed in detail hereinabove, we conclude that on account of non-consideration of the same by the Division Bench, which has rendered the judgment in Sunil’s case, correct law on the expert opinion and the reports assigned by the scientific expert after analyzing the exhibit has not been laid down. b. We further conclude that on account of non-consideration of various reports of the United Nations Office on Drugs and Crime including Single Convention on Narcotic Drugs, 1961 and to the contrary placing reliance on the text books, which basically are on medical jurisprudence, the Division Bench in Sunil’s case failed to assign correct meaning to ‘charas’ and ‘cannabis resin’, the necessary constituents of an offence punishable under Section 20 of the NDPS Act. c. In view of the detailed discussion hereinabove, the Division Bench while deciding Sunil’s case supra has definitely erred in taking note of the percentage of tetrahydrocannabinol in three forms of cannabis i.e. Bhang, Ganja and Charas and hence, concluded erroneously that without there being no reference of the resin contents in the reports assigned by the Chemical Examiners in those cases, the contraband recovered is not proved to be Charas, as in our opinion, the Charas is a resinous mass and the presence of resin in the stuff analyzed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas. d. 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 is that of Charas. The law laid down by the Division Bench in Sunil’s case that ‘for want of percentage of tetrahydrocannabinol or resin contents in the samples analyzed, the possibility of the stuff recovered from the accused persons being only Bhang i.e. the dried leaves of cannabis plant, possession of which is not an offence, cannot be ruled out’, is not a good law nor any such interpretation is legally possible. The percentage of resin contents in the stuff analyzed is not a determinative factor of small quantity, above smaller quantity and lesser than commercial quantity and the commercial quantity. Rather if in the entire stuff recovered from the accused, resin of cannabis is found present on analysis, whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but lesser than commercial and commercial, in terms of the notification below Section 2 (vii-a) and (xxiii-a) of the Act. e. We have discussed the Single Convention on Narcotic Drugs, 1961 in detail hereinabove and noted that resin becomes cannabis resin only when it is separated from the plant. 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.” 11. A Larger Bench, therefore, has held that the judgment in Sunil’s case supra does not lay down the correct legal position as to what is Charas and what shall be its constituents in legal parlance and as such not to be followed. No concentration and percentage of resin is prescribed for ‘charas’ under the Act.” 11. A Larger Bench, therefore, has held that the judgment in Sunil’s case supra does not lay down the correct legal position as to what is Charas and what shall be its constituents in legal parlance and as such not to be followed. Therefore, in view of the Larger Bench judgment in Mehboob Khan’s case supra, the impugned judgment can not be said to be legally and factually sustainable and the same as such is quashed and set aside. The case, however, is remanded to learned trial Court for fresh disposal in accordance with law. The parties through learned counsel representing them are directed to appear before the trial Court on 19th September, 2016. Record be sent back so as to reach in the trial Court well before the date fixed. 12. The appeal is accordingly allowed and stands disposed of.