JUDGMENT : Dharam Chand Chaudhary, J. State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Special Judge, Chamba, Division at Chamba has erroneously acquitted the respondents, hereinafter referred to as ‘the accused’ from the charge under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as ‘the NDPS Act’ in short vide judgment dated 24.11.2012 passed in Sessions trial No. 27 of 2012. 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 the offence they committed as per law. 2. The facts in a nut shell are that on 25.2.2012 a police patrol headed by ASI Harish Kumar PW11 and comprising HC Rajinder Kumar, HC Hem Raj (PW2) and HHC Raj Kumar left for patrolling towards Sahoo and Sillagharat area in wee hours (early morning). Rapat Ext.PW6/A to this effect was entered in the rapat rojnamcha. Around 7:45A.M. the police party had laid a Nakka at Ludera Forest Check Post. Suresh Kumar PW1 the forest guard and forest worker Baldev Singh on duty in the check post were also present at the spot. Around 8:00 A.M. Shiva Coach, a private bus, bearing registration No. HP-68-0676 arrived at the place of Nakka. PW11 got the bus stopped for its checking by the police party. During the course of checking the bus the accused who were found to be occupying seat Nos. 23 and 24 had kept one carry bag in between them. On inquiry they both claimed the bag to be their. On suspicion having arisen they both were made to alight from the bus. On inquiry they disclosed their names and other particulars. PW11 on suspicion that the accused may be carrying some drug or psychotropic substance in the bag deemed it appropriate to conduct the search of the bag. Before that he apprised them about their legal right of being searched either before a nearby Magistrate or gazetted officer vide memos Ext.PW1/D and Ext.PW1/E in the presence of Suresh Kumar PW1 and Baldev Singh. They however, opted for the search of the bag by the police present there. On this PW11 had first offered his search to the accused and memo Ext.PW1/A was prepared in this regard. Nothing incriminating was recovered from his possession. They however, opted for the search of the bag by the police present there. On this PW11 had first offered his search to the accused and memo Ext.PW1/A was prepared in this regard. Nothing incriminating was recovered from his possession. On conducting the search of the bag being carried by the accused charas in the shape of Batties was recovered therefrom. The same was kept beneath a red and white coloured shawl. The recovered charas was weighed and found to be 2Kg and 500 grams. The charas was packed again in that very bag. The same was sealed in a parcel of cloth with five impressions of seal ‘R’ and taken in possession vide seizure memo Ext.PW1/C. The sample of seal ‘R’ was taken on a piece of cloth which is Ext.PW1/B. The I.O. had prepared Rukka Ext.PW10/A and it was sent to Police Station, Sadar Chamba through HC Hem Raj (PW2) for registration of FIR. On the basis of Rukka the FIR Ext.PW10/C came to be registered in the police station. 3. The I.O PW11 had completed all codel formalities including filling up NCB form in triplicate and preparation of spot map on the spot. The accused were apprised about the offence they committed and the sentence prescribed therefor vide memos Ext.PW1/F and Ext.PW1/G. They both were thereafter arrested and taken in custody. The information qua their arrest was also given to the persons of their choice. The personal search of both accused were also conducted vide memos Ext.PW1/H and Ext.PW1/J. 4. On the same day, PW11 produced the case property before SI/SHO Prem Dass PW10 in the police station. The witness has resealed the parcel containing the case property with impression of seal ‘T’ and thereafter deposited the same with Pawan Kumar MHC Police Station, Sadar Chamba. 5. PW5 in turn had sent the case property to Forensic Science Laboratory, Junga through C. Amit Kumar. The report Ext.PA was received from the Forensic Science Laboratory and as per the same the contraband recovered from the accused was found to be the extract of cannabis and as such Charas. 6. On the completion of the investigation, report under Section 173 of the Code of Criminal Procedure came to be filed in the trial Court against both accused. 7. 6. On the completion of the investigation, report under Section 173 of the Code of Criminal Procedure came to be filed in the trial Court against both accused. 7. Learned Special Judge on going through the police report and the documents annexed therewith has prima-facie found a case under Section 20 of the NDPS Act made out against the accused. Charge against both of them was framed accordingly. They however pleaded not guilty. 8. The prosecution in order to sustain charge against them has examined oral as well as documentary evidence. The material prosecution witnesses are Suresh Kumar Forest Guard PW1, and HC Hem Raj PW2. PW3 Raj Kumar is the driver of the bus in which the accused were traveling whereas Ravinder Kumar PW4 is its conductor. The I.O. is PW11. The remaining prosecution witnesses HC Pawan Kumar, HHC Gian Chand, C. Amit Kumar, C. Rajesh Kumar, HC Subhash Sharma and ASI Prem Dass PWs 5 to 10 are formal as they remained associated during the investigation of this case in one way or the other. The statement of the accused under Section 313 Cr.P.C. were also recorded. They however, have not opted for leading any evidence in their defence. 9. On the completion of record and hearing learned Public Prosecutor as well as defence counsel learned Special Judge while placing reliance on a Division bench judgment of this Court in Sunil Vs. State of Himachal Pradesh, Latest HLJ 2010 (HP) 207 has arrived at a conclusion with the following observations: “….18. After having discussed the reports in detail, the Hon’ble High Court went on to hold that the reports did not prove that the stuff recovered from the accused was Charas as they were not in consonance with the provisions of Section 2(iii)(a) of the Act. 19. In para 31 of the Sunil Kumar’s judgment, referred hereinabove supra, the Hon’ble High Court further observed as under: ‘in view of the above stated position, we hold that Experts report in non of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility of the stuff recovered from them being only bhang i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.’ 20. The possibility of the stuff recovered from them being only bhang i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out.’ 20. The learned counsel for the accused(s) has further urged that the a foresaid proposition has further been reiterated by the Hon’ble High court in ‘Bajinder Singh vs. State of hp, Latest HLJ 2010(2) 1263 (HP), Om Parkash vs. State of H.P., Latest HLJ 2012 (HP) 474, Lekh Raj Vs. State of H.P., Latest HLJ 2012 (HP) 41 and also in State of H.P. Vs. Ranjeet Ram 2011 Latest HLJ (HP) 1466 and very recently in 2012(3) RCR 370 (Criminal) Hukam Singh Vs. State of Himachal Pradesh. 21. It is thus clear that the judgment rendered in Sunil Kumar’s case has consistently been followed by the Hon’ble High Court till date. 22. It would not be out of place to now reproduce the result of the examination rendered by the State Forensic Science Laboratory, Junga in the present case, vide Ex. PA. It reads thus: ‘Various scientific tests such as physical identification, chemical and chromatographic analyses were carried out in the laboratory with the exhibit under reference, The above tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhbt. The miscroscopic examination indicated the presence of Cystolithic hairs in the exhibit. Charas is a resinous mass, which on testing was found present in the exhibit. The quantity of resin as found in the exhibit is 23.79% w/w. The result thus obtained is given below: The exhibit is extract of cannabis and sample of CHARAS. 23. The perusal of the result of the examinations of the contraband found in possession of the two accused in the present case is verbatim, the same as have been considered by the Hon’ble High Court in Sunil Kumar’s judgment, referred hereinabove supra and the other judgments discussed hereinabove. That being so, it can well be said that the contraband recovered from the possession of the accuseds has not been proved to be Charas or the same being resin of charas and is not in consonance with the definition so provided under section 2(iii)(a) of the Act, as has been held by our Hon’ble High Court in catena of decision discussed hereinabove supra. 24. 24. Keeping in view the mandate laid down by the Hon’ble High Court, the other aspects of the case are hardly required to be gone into, as the prosecution has failed to prove that the accused(s) were found in possession of Charas. The prosecution having failed to prove that the stuff recovered from the accused was the resin of Charas.” 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.” 10. 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.” 10. 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 5th October, 2016. Record be sent back so as to reach in the trial Court well before the date fixed. 11. The appeal is accordingly allowed and stands disposed of.