- 1 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 10262 OF 2024 (482(Cr.PC) / 528(BNSS) BETWEEN: MR. DHANARAM PATEL S/O NARAYAN RAM, AGED ABOUT 48 YEARS, PROPRIETOR, M/S RAKESH ZARDA AGENCY, WHOSALE SHOP, R/AT NEAR KOTE ANJANEYA SWAMY TEMPLE, OLD MARKET ROAD, TUMKUR TOWN - 572101. …PETITIONER (BY SRI. HASHMATH PASHA, SENIOR ADVOCATE FOR SRI. KARIAPPA N.A., ADVOCATE) AND: 1. STATE OF KARNATAKA BY EXCISE INSPECTOR, NORTH RANGE, TUMKURU - 572101. 2. DEPUTY SUPERINTENDENT OF EXICSE TUMKUR SUB-DIVISION, TUMKURU - 572101 (BOTH THE RESPONDENTS ARE REPRESENTED BY LEARNED SPL. PUBLIC PROSECUTOR, M.S.BUILDING, HIGH COURT OF KARNATAKA BANGALORE - 560001.) …RESPONDENTS (BY SMT. RASHMI JADHAV, ADDL.SPP) R Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 THIS CRIMINAL PETITION IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS) PRAYING TO QUASH THE FIR REGISTERED IN FIR NO.9/2022- 23/3002DYSE/300215 FOR THE OFFENCE P/U/S 20(b)(ii)(c), 25, 8(C) AT ANNEXURE-B AS ILLEGAL AND ABUSE OF PROCESS OF LAW AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, the petitioner seeks the following reliefs: (1) To quash the FIR registered in FIR No.9/2022-23/3002DYSE/300215 for offence U/S 20(b)(ii)(c), 25, 8(C) at Annexure-B as illegal and abuse of process of law. (2) To Quash the Charge Sheet filed by Respondent No.1 which is registered as Spl.C.No.249/2023 on the file of Hon’ble Principal District and Sessions Judge, Tumakuru in FIR No. 9/2022-23/3002DYSE/300215 on the file of Respondent No.1 for offence U/S 20(b)(ii)(c), 25, 8(C) as per Annexure-C as abuse of process of law. (3) To set aside the order of cognizance dated 07.02.2023 and issue of process dated 09.02.2023 passed in Spl.C.No.249/2023 for offence U/S 20(b)(ii)(c), 25, 8(C) on the file of Hon’ble Principal District and Sessions Judge, Tumkur as per Annexure-D as illegal and abuse of process of law. - 3 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 (4) To set aside the Order dated 26.03.2024 in rejecting discharge application passed in Spl.C.No.249/2023 on the file of Hon’ble Principal District and Sessions Judge, Tumkur as per Annexure-K as illegal and abuse of process of law. (5) Consequently, to quash the entire proceedings pending in Spl.C.No.249/2023 on the file of Hon’ble Principal District and Sessions Judge, Tumkur which is arising out of FIR No. 9/2022- 23/3002DYSE/300215 for offence U/S 20(b)(ii)(c), 25, 8(C) on the file of Respondent’s as per Annexure-B (FIR), Annexure-C (Charge sheet), Annexure-D order of taking cognizance and issue of process and Annexure-K order rejecting discharge application, as an abuse of process of law. (6) To grant reasonable compensation for the illegal arrest of petitioner on 05.08.2022 and got remanded him to Judicial Custody on 06.08.2022 and illegally detained in Prison till 17.08.2022 in FIR No.9/2022-23/3002DYSE/300215 on the file of Respondent No.2 which resulted violation of his fundamental right guaranteed under article 21 of the constitution, and (7) To grant such other relief or reliefs as this Hon’ble Court deems fit to grant, in the facts and circumstances of the case, in the interest of justice.” - 4 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 2. A perusal of the material on record will indicate that on 05.08.2022, the 2nd respondent – Dy.S.P. conducted a raid of the petitioner’s shop M/s.Rakesh Zarda Agency and seized 7 plastic bags containing chocolates by name “Atul Munnakka” to an extent of 51.470 Kgs and arrested the petitioner, who was subsequently released on bail vide order dated 17.08.2022 passed in Crl.Misc.No.1187/2022. On 18.08.2022, the Investigating Officer / Excise Inspector did an Inventory and drew samples of the seized items and forwarded the same for chemical analysis to the Central Chemical Laboratory (for short ‘CC Laboratory’), Department of Excise, Bangalore, on 24.08.2022. The said Laboratory submitted a report dated 20.09.2022 interalia stating that as per the two types of colour test conducted by it, the samples had tested ‘positive’ for having contained cannabis and rendered an opinion that the samples are confirmed as ‘genus of cannabis (ganja)’. 3. Subsequently, on 04.02.2023, the Investigating Officer submitted a requisition to the aforesaid Laboratory seeking a proper report as to the quantity, percentage etc., of THC (Tetra Hydro Cannabinol) contained in the samples and their effect on the human body so as to ascertain whether the samples contained - 5 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 ganja or not for the purpose of filing the charge sheet. The said CC Laboratory submitted a reply dated 04.02.2023 interalia stating that the percentage of THC in the samples cannot be ascertained, since necessary equipment in this regard was not available to arrive at a conclusion as to whether ganja was found in the mixed chocolates. 4. Thereafter, the 1st respondent filed a charge sheet in Spl.C.No.249/2023 on 05.02.2023 against the petitioner for alleged offences under Section 20(b)(ii)(c), 25 and 8(c) of the N.D.P.S. Act. In the said proceedings, the petitioner – accused having entered appearance, filed an application under Section 227 Cr.P.C. seeking discharge which was rejected by the trial court vide order dated 26.03.2024 and as such, the petitioner is before this Court by way of the present petition. 5. Heard learned Senior counsel for the petitioner and learned Addl. SPP for the respondents and perused the material on record. 6. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner submits that the impugned order passed by the trial court and the impugned proceedings are illegal and - 6 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 contrary to law and facts and the same deserve to be quashed. In support of his contentions, learned Senior counsel placed reliance upon the following judgments: (i) Bharath Choudhary vs. Union of India – (2021) 2 SCC 50; (ii) Union of India vs. Balmukund – (2009) 12 SCC 161; (iii) Mujeeb Mehaboob vs. State by Kalasipalya Police – (2012) SCC Online KAR 9043; (iv) Chandru Kunthur Raghuvegowda vs. State by Inspector of Customs – ILR 2017 KAR 4053; (v) Bajinder Singh vs. State of Himachal Pradesh – 2010 SCC Online HP 2082; (vi) Sunil vs. State – Criminal Appeal No.267/2007 & connected matters Dated 11.12.2009; (vii) K.K.Reji vs. State by Murudeshwar Police Station – 2009 SCC Online KAR 325; (viii) Dayaram Singh and Another vs. State of Madhya Pradesh Through Excise Inspection Zone - 2024 SCC OnLine MP 1188 7. Per contra, learned Addl.SPP for the respondents – State submits that there is no merit in the petition and that the same is liable to be dismissed. 8. A perusal of the CC Laboratory Report dated 20.09.2022 submitted by the CC Laboratory will indicate that it has come to the - 7 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 erroneous conclusion that since the samples tested ‘positive’ for existence of cannabis, the samples are confirmed as ‘genus of cannabis(ganja)’; in this context, the CC laboratory failed to appreciate that ganja was not a genus of cannabis as incorrectly stated in the Report; in fact, it is the extent / percentage / quantity of THC in the sample which will determine / decide as to whether the sample could be classified as ‘ bhang / ganja / charas’ ; it is also significant to note that the extent / percentage / quantity that would be germane and material for such classification is as under:- Bhang Ganja Charas Percentage of THC present 0-15% 15-25% 25-40% 9. As stated supra, the aforesaid details and parameters so as to confirm the existence of ganja are conspicuously absent in the Report dated 20.09.2022. Under these circumstances, the aforesaid inconclusive CC Laboratory Report dated 20.09.2022 not only incorrectly states that the samples are confirmed as ‘genus of cannabis (ganja)’ but also does not state extent / percentage / quantity of THC so as to classify the sample as containing ganja and consequently, the aforesaid inconclusive report could not have - 8 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 been made the basis to file the charge sheet and as such, the impugned proceedings deserve to be quashed. 10. 10. The undisputed material on record will also indicate that since the said Report dated 20.09.2022 was inconclusive and the percentage, quantity etc., of THC found in the sample were not forthcoming in the Report which also did not state anything as to its effect on the human body, the I.O. deemed it appropriate to address a communication dated 04.02.2023 not only seeking clarification as to whether there was ganja in the samples or not, but also putting forth specific query regarding the percentage, quantity etc., of THC found in the sample as well as its effect on the human body for the purpose of filing charge sheet; however, in response to the said query, the CC Laboratory issued a reply dated 04.02.2023 categorically stating that for want / lack of requisite equipment, the contents, percentage, quantity of THC cannot be detected to ascertain the presence of ganja in the samples. Despite the initial inconclusive report and the aforesaid communication between the I.O. and the Laboratory, all of which, clearly indicated that the presence of ganja could not be ascertained, the 1st - 9 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 respondent proceeded to file the impugned charge sheet, which is liable to be quashed on this ground also. 11. As stated supra, the petitioner filed an application before the trial court seeking discharge on the ground that the very existence / presence of THC including its percentage, quantity etc., having not been ascertained nor determined by the I.O. or the laboratory, the petitioner was entitled to be discharged from the impugned proceedings. However, the trial court without appreciating the aforesaid facts and circumstances proceeded to reject the application on the ground that the CC Laboratory report dated 20.09.2022 confirmed existence of ganja, which was a genus of cannabis; in this regard, it is relevant to note that despite having referred to the aforesaid report and subsequent communication between the I.O. and the Laboratory which clearly indicated that existence, presence, percentage, quantity etc., of THC was neither conclusive nor ascertained or determined, the trial court proceeded to summarily reject the application based on surmises and conjectures and without assigning cogent or valid reasons and as such, the impugned order deserves to be set aside. - 10 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 12. The trial court also committed an error in failing to appreciate that the I.O. himself was unsure as to whether the sample contained ganja or not and it was in that circumstance that he thought it appropriate to seek clarification from the laboratory in this regard; having sought for such clarification as is clear from the communication dated 04.02.2023, to which the laboratory replied stating specifically that due to lack/want of equipment, it was not possible to answer the queries put forth by the I.O., in the absence of sufficient, valid, legal or acceptable material before the I.O. which established existence of ganja in the samples, the I.O. was clearly not justified in filing the impugned charge sheet based on an inconclusive report and failure to appreciate this, has resulted in erroneous conclusion. 13. The trial court failed to consider and appreciate Regulation 1.18 of the Standing Instructions No.1/88 issued by the Narcotics Control Bureau, New Delhi, or Rule 14 of the NDPS (Seizure, Storage, Sampling & Disposal) Rules, 2022, which stipulate that both qualitative and quantitative tests have to be conducted for the purpose of determining the existence of Narcotic Drugs or Psychotropic Substances; in the instant case, as stated - 11 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 supra, the said Regulations and Rules have not been complied with by the respondents, which is yet another circumstance to set aside the impugned order and quash the impugned proceedings. 14. In Mujib Mehaboob’s case supra, this Court held as under:- “12. In the case on hand, the alleged seizure from this petitioner is said to be 1 kg 195 gms. and it certainly falls below the commercial quantity. In the decision referred to by the petitioner's Counsel viz., Bajinder Singh's case, the Division Bench of the said High Court has held that, as per the definition under Section 2(iii)(a) of the NDPS Act, it is the separated resin alone which constitute charas and as far as the percentage is concerned, insofar as ganja is concerned, it has been held in the said case that tetrahydrocannabinol are found not only in charas, but also in ganja and the extent of the said ingredient has to be 25% in ganja and 25 to 40 % in charas.” 15. In Bharat Choudhary’s case supra, the Apex Court held as under:- “12. After carefully examining the arguments advanced by the learned counsel for the parties and having cursorily glanced at the records, we are of the opinion that the impugned order [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] cancelling the bail granted in favour of Bharat Chaudhary (A-4), is not sustainable in view - 12 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 of the fact that the records sought to be relied upon by the prosecution show that one test report dated 6-12-2019, two test reports dated 17-12-2019 and one test report dated 21- 12-2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities. 13. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited. 14. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to - 13 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15-7-2021 [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] . This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh [Tofan Singh v. State of T.N., (2021) 4 SCC 1 : (2021) 2 SCC (Cri) 246] . The impugned order [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] qua A-4 is, accordingly, quashed and set aside and the order dated 2-11-2020 passed by the learned Special Judge, EC & NDPS cases, is restored. As for Raja Chandrasekharan (A-1), since the charge-sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial court.” 16. In Bal Mukund’s case supra, the Apex court held as under:- 36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW 7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law. 37. There is another infirmity in the prosecution case. Section 55 of the Act reads as under: - 14 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 “55. Police to take charge of articles seized and delivered.—An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station.” PW 7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them. 38. Furthermore, we are dealing with a judgment of acquittal. The High Court, for good and sufficient reasons, had arrived at findings of fact both with regard to voluntariness of the purported confessions made by the respondents as also compliance with the mandatory statutory provisions vis-à-vis directions issued by the Central Government in making search, seizure as also taking of samples for the purpose of chemical examination having been doubted, we do not see any reason why we should take a contrary view as it is well known that the appellate court would not interfere with a judgment of acquittal only because another view is possible. On the other hand, if two views are possible, it is trite, the appellate court shall not interfere. (See Animireddy Venkata Ramana v. Public Prosecutor, High Court of A.P. [(2008) 5 SCC 368 : (2008) 2 SCC (Cri) 600] )” - 15 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 17. In Chandru Kunthur Raghuvegowda’s case supra, this Court held as under:- “19. The report dated January 13, 2017 issued by the Custom House Laboratory, Chennai, shows that the six samples answered the test for presence of Pseudoephedrine Hydrochloride. The foot note contained in the report is categorical to the effect that ‘quantitative analysis’ of the sample was not carried out. Thus, there has been infraction of Standing Instruction No. 1/88. Compliance with the ‘Standing Instruction’ is a requirement of law as held by the Hon'ble Supreme Court in the case of Union of India v. Bal Mukund (supra).” 18. In Bajinder Singh’s case supra, the Himachal Pradesh High Court held as under:- “9. It has been further submitted by Mr. Chitkara that stuff recovered as charas is not charas but was dried leaves of cannabis plant. In view of the decision of this Court in Panne Lal v. State of H.P., 2010 (2) Crimes 558 (H.P.), the possession of such recovered good cannot be said to be contraband good and possession of which is not an offense In support of his submissions Mr. Chitkara has referred some paragraphs of the above said judgment. For convenience, same are given as below : - “9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the - 16 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh: 1. Sunil v. State (Cr.A No. 267/2007) 2. Surinder Singh v. State (Cr.A No. 311/2007) 3. Panne Lal v. State (Cr.A No. 45/2008) 4. State v. Jeet Ram (Cr.A No. 363/2008) 10. In all the aforesaid cases, reports given by the above said of the Forensic Science Laboratory are similar, rather verbatim the same. They read as follows: RESULTS OF THE EXAMINATION Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analyzed as given below: Exhibit-1 is a sample of charas. Shri R.S. Verma, who signed these reports, as Director of the said Forensic Science Laboratory, was examined as a witness, in two cases. In one case, i.e. Panne Lal v. State (Cr.A No. 45/2008), he was examined as a witness of the prosecution and in another, i.e. State v. Jeet Ram (Cr.A No. 363/2008), he was examined as a witness of the defence. - 17 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 15. Dr. R.S. Verma, who was examined as PW-11, by the trial Court, in the case giving rise to appeal titled Panne Lal v. State (Cr.A No. 45/2008), admitted that Charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with Charas and that resin containing tetrahydrocannabinol is Charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify Charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyse the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin. 16. While appearing as DW-1 before the trial Court, in another, i.e. State v. Jeet Ram (Cr.A No. 363/2008), he (Dr. R.S. Verma) that it is tetrahydrocannabinol which is the active agent in the resin and that it is the presence of tetrahydrocannabinol, which shows that the sample stuff is a cannabis product. His saying that presence of tetrahydrocannabinol that the stuff is cannabis product clearly suggests that the test conducted by was to find out if the stuff was a product of cannabis and not the specific product, defined as Charas in Section 2(iii)(a) of - 18 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 the Act. Cannabis are. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis (hemp), Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant, of is not an offense We may observe that finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. He stated that there was resin present in the sample, but he did not mention its percentage in his report, as the same was not required to be mentioned. His statement that resin was present in the sample indicates that the entire stuff was not resin. Further, his statement that the presence of indicates that the stuff is cannabis product, shows that tetrahydrocannabinol is to be present not only in resin/Charas but also in other forms of cannabis hemp), i.e. ganja and mixture, as defined in Sections 2(iii)(b) and 2(iii)(c) of the, As a matter of fact, tetrahydrocannabinol is present not only in the three forms of cannabis (hemp), defined in Section 2(iii) of the Act, but also in its, stem and even the seeds, as we would be indicating in the later part of this and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, is the fabric of the cannabis plant, do not mean that the analysed stuff is, means - 19 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 separated resin, per Section 2(iii)(a) of the Act, and not any other product of cannabis. 17. 17. In the remaining two cases, reports are given by Shri A.K., of State Forensic Science Laboratory, Junga (H.P.), who was examined as a Court witness by one of us (Surjit Singh, J) sitting in single. In one of his reports, Ex. PX, in case titled Karuna Shankar Puri v. State (Cr.A No. 500/2008), he has stated that Charas is a mass and resin is an ingredient of Charas, which on testing was found present. Mention in the result of analysis suggests that the witness is not even of the definition of Charas. Resin is not an ingredient of Charas but it is the separated resin alone which is Charas, per definition given in Section 2(iii)(a) of the Act. 18. Chemical Examiner, Shri A.K. Wasuja, when examined as a Court witness, by this Court, in Criminal Appeal No. 500 of 2008, titled as Karuna Shankar Puri v. State, stated that he did not agree with the definition of “Charas” as given in Section 2(iii)(a) of the Act and that as a matter of fact “Charas” was composition of about 400 substances. In of this claim, he relied upon Ex. C-1, comprising four sheets of some literature downloaded by him from the Internet. Ex. C-1 does not pertain to Charas but Marijuana or Marihuana, which means cannabis. When his attention was drawn to this - 20 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 fact, he admitted that Ex. C-1 pertained to Marijuana. 19. “Marijuana” as per Webster's Third New International Dictionary, Volume 11, means the dried leaves and flowering tops of the pistillate hemp plants that are the source of the drug cannabin and are sometimes smoked in cigarettes with consequent effect of the drug on the higher nerve centres to produce peculiar psychic disturbances and other words for “Marijuana” as per the aforesaid Dictionary are bhang, ganja and hashish. That means “Marijuana” includes not only Charas, ganja and mixture, as defined in clauses (a), (b) & (c) of Section 2(iii) of the Act, respectively, but also dried leaves and other parts of cannabis plant. 20. From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal v. State and as DW-1 in appeal titled State v. Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW-1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri v. State, it appears that both the Experts are unaware of the term “Charas” as defined and made an under the Act and that the tests were conducted by them to find if the stuff tetrahydrocannabinol - 21 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 and cystolithic hair. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW-9/D given in case titled Raj Kumar v. State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps uncertained quantity of Charas/resin. 21. We have noticed hereinabove that tetrahydrocannabinols are found not only in the Charas, which means separated resin of cannabis plant but also in ganja, as defined in Section 2(iii)(b) of the Act and even in the leaves, seeds and stems of cannabis plant. We have observed so, on the basis of authoritative literature. 22. In The New Encyclopaedia Britannica, 15th Edition, or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). 23. In Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Sixth Edition, it is mentioned at Page-10.54, in answer to Question No. 10.21 that tetrahydrocannabinol-THC is active principal and it is present in bhang to the extent of 15 per cent, in ganja to the extent of 25 per - 22 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 cent and in Charas to the extent of 25-40 per cent. 24. In Principles and Practice of Forensic Medicine, First Edition, by Dr. Umadethan, it is mentioned at Page-486 that principal psycho active substance in cannabis (Marijuana, Marihuana) is delta-9 tetrahydrocannabinol and besides this there are cannabinol, cannabidiol, cannabinoleic acid and 400 other cannabinoids. 25. Cannabis, according to Lyon's Medical Jurisprudence in India, Tenth Edition (Page- 747), includes bhang, which means dried leaves, ganja, flowering tops, Charas, the resin which exudes from the leaves and branches, which is often adulterated and Majun, a sweetmeat prepared with bhang. 26. As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, tetrahydrocannabinol will be found even in the leaves, stem, seeds and the flowering and fruiting tops of cannabis plant. But resin is Charas, when it is separated from the plant or its aforesaid parts. Presence of resin in the aforesaid parts does not make such parts Charas nor is the resin in such parts Charas, unless separated, in view of the definition in Section 2(iii)(a) of the Act. - 23 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 27. Learned Advocate General, who appeared for the State, submitted that a similar question was raised before a Division Bench of Gujarat High Court, in Dhanpalsingh Barunsingh Thakur and others v. State of Guajrat, 1995 Cri. L.J. 3751, and the learned Judges, relying upon the report of the Chemical Examiner, held that the entire sample stuff was Charas. A reading of the judgment shows that the Expert, who appeared as PW-1 based his opinion not only on his own tests but also the report of Botanical Expert. The substance was found to contain cannabis species, as it gave positive result, when subjected to para-aminon phenol test and thin layer chromatography test. Contention raised in that case was that the Expert had not given the opinion that the substance was resin obtained from cannabis plant or a concentrated preparation and resin known as hashish oil or liquid hashish. No doubt, the Expert in that case did not specifically say that the sample stuff was resin of cannabis plant but he conducted two tests, i.e. paraaminon phenol test and thin layer chromatography test and came to the conclusion that the sample was Charas, which meant resin. 28. In the present case, as noticed hereinabove, it is made out from the reports, - 24 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 particularly report Ex. PW-9/D as also the testimony of the two Experts, namely Dr. R.S. Verma and Shri A.K. Wasuja, that the entire stuff was not resin and that the tests, which they conducted, were meant to ascertain whether the stuff was cannabis (Marijuana) and not for Charas. Therefore, the judgment of the Gujarat High Court, referred to above, does not help in determining the question we are dealing with. 29. As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage of in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. According to Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of bhang it is 15 per - 25 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 cent, in the case of ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offense, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offense, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant. 31. In view of the abovestated position, we hold that Experts’ reports in none of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility - 26 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 of the stuff recovered from them being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offense, cannot be ruled out.” 10. In view of prosecution witnesses PW-4, PW-6 and PW-7, only one bag was being carried by the accused, when apprehended and search was made. However, Ex. P-F, which was witnessed by Sunder Singh, Bijender and MHC Pushp Dev, indicated that one bag of rexine, in which a diary, used cloths were kept was also recovered. Such recovery of another bag has not been proved by the prosecution. 11. In view of the testimony of PW-7 when two samples of 25 grams each were separated for chemical analysis and each sample was sealed with three seals of ‘X’ and remaining charas was again put in aforesaid polythene packets and put into the same bag, which was sealed in cloth parcel with 9 seals of ‘X’ then under what circumstances another bag of rexine was found at the time of search. 12. On analysis of prosecution witnesses and the material on record, we also notice that exhibit P-J indicates examination report of CFSL as below: “Various laboratory tests were carried out with the exhibits-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below: Exhibit-1 is a sample of charas.” - 27 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 13. On scrutiny of statement of prosecution witnesses and material on record, we find that prosecution has failed to bring home the guilt to the appellant-accused beyond reasonable doubts. 14. In the light of verdict given by this Court in Panne Lal v. State of H.P., 2010(2) Crimes 558 (H.P.), the possession of such recovered goods cannot be said to be contraband goods and possession of which is not an offense. Therefore, chemical report given in present case is doubtful. Relying upon the decision of Panne Lal v. State of H.P, (supra), the benefit of doubt is given to the accused/appellant. 15. In our considered view the appellant/convict shall liable to be set free to his liberty forthwith, unless required in any other process of law.” 19. Similarly, in Sunil and other’s case supra, the Himachal Pradesh High Court held as under:- “4. “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.” 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 - 28 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 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 mean 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, are 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. 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. 9. In all the six cases stuff, which, according to the prosecution, was Charas, had been seized by Police - 29 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 Officers, on search of the person or baggage or buildings or conveyance of the appellants/accused. Samples were separated from the recovered stuff and sent to the Chemical Examiners. In the following four cases, samples were sent to the Director, Central Forensic Science Laboratory, Directorate of Forensic Science, Ministry of Home Affairs, Government of India, Chandigarh: 1. Sunil versus State (Cr.ANo.267/2007) 2. Surinder Singh versus State (Cr.ANo.311/2007) 3. Panne Lal versus State(Cr.ANo.45/2008) 4. State versus Jeet Ram (Cr.ANo.363/2008) 10. In all the aforesaid cases, reports given by the abovesaid Director of the Forensic Science Laboratory are similar, rather verbatim the same. They read as follows: RESULTS OF THE EXAMINATION Various laboratory tests were carried out with the exhibit-1 under reference for identification. Chemical tests and chromatographic analysis indicated the cannabinols including tetrahydrocannabinol. Microscopy indicated the presence of characteristic cystolithic hair. The results thus obtained have been analysed as given below: Exhibit-1 is a sample of charas. Shri R.S. Verma, who signed these reports, as Director of the said Forensic Science Laboratory, was examined as a witness, in two cases. In one case, i.e. Panne Lal versus State (Cr.A No.45/2008), he was examined as a witness of the prosecution and in another, i.e. State versus Jeet Ram (Cr.A No.363/2008), he was examined as a witness of the defence. 11. In other two cases, i.e.Cr.A No.314 of 2008, - 30 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 Raj Kumar versus State, and Cr.A No.500 of 2008, Karuna Shankar Puri versus State, samples were sent to Chemical Examiner, State Forensic Science Laboratory, Junga (H.P.), and his reports read as follows: RajKumar’s case: “Various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in the Laboratory with the exhibit P/1 & P/2 under reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in both the samples. The microscopic examination indicated the presence of cystolithic hair in both the samples. Charas is a Resinous mass and resin is an ingredient of Charas which on testing was found present. The quantity of Resin in cannabis Plant/Charas sample varies from one area to the other area. The result thus obtained is given below. For both the samples. The exhibits P/1 & P/2 are the samples of CHARAS.” Karuna Shankar Puri’s case: “Various scientific tests such identification, chemical and chromatographic were carried out in the Laboratory with the exhibit P/1 reference. The tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The microscopic examination indicated the presence of cystolithic hair in the sample. The result thus obtained is given below. The exhibit marked as P/1 is a sample of CHARAS.” 12. Shri A.K. Wasuja, Chemical Examiner, by whom the aforesaid two reports are signed, was summoned as a Court witness by one of us (Surjit Singh, J), while sitting singly and his statement was recorded to seek clarification as to how he came to the conclusion that the examined stuff was Charas. 13. From the reports, as reproduced hereinabove, it is clear that the stuff was opined to be Charas, on - 31 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 account of presence of cannabinol, including tetrahydrocannabinol and cystolithic hair. Report Ex. PW- 9/D, in Cr.A No.314 of 2008, titled as Raj Kumar versus State, given by Chemical Examiner Shri A.K. Wasuja, who was examined as a Court witness by a Single Judge Bench of this Court, states that Charas is resinous mass and resin is an ingredient of Charas, which on testing was found present. His report suggests that entire sample mass that was analyzed by him was not resin but some quantity of it was found present in the mass. Report also suggests that term “Charas”, used by its author, namely Court witness Shri A.K. Wasuja, is different from the definition of “Charas”, as given in Section 2(iii)(a) of the Act, as reproduced hereinabove, because as per definition resin is not an ingredient of Charas. But, as per definition in Section 2(iii)(a) of the Act, “Charas” means whole resin, in whatever form, whether crude or purified, of cannabis plant. 14. Common question, which has been raised in all the appeals, is whether by conducting certain tests only to notice the presence of cannabinols, including tetrahydrocannabinols, and the characteristic cystolithic hair of cannabis plant, which are also present in ganja and mixture, as defined in Sections 2(iii)(b)&(c), besides bhang, stem and seeds of cannabis plant, the analysts could have been in a position to conclude that the sample was Charas. 15. Dr. R.S. Verma, who was examined as PW- 11,by the trial Court, in the case giving rise to appeal titled Panne Lal versus State (Cr.A No.45/2008), admitted that Charas is separated resin from cannabis plant. He stated that he tested the resin to identify it with Charas and that - 32 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 resin containing tetrahydrocannabinol is Charas and that other resins, like that of pine tree, pear, peach, do not contain tetrahydrocannabinol. His statement that he tested the resin to identify Charas, by conducting a test to find whether it contained tetrahydrocannabinol, itself suggests that he proceeded to analyse the stuff, assuming the same to be resin, without conducting any specific test to ascertain whether it was resin or something other than resin. 16. While appearing as DW-1 before the trial Court, in another case, i.e. State versus Jeet Ram (Cr.A No.363/ 2008), he (Dr. R.S. Verma) stated that it is tetrahydrocannabinol which is the active agent in the resin and that it is the presence of tetrahydrocannabinol, which shows that the sample stuff is a cannabis product. His saying that presence of tetrahydrocannabinol shows that the stuff is cannabis product clearly suggests that the test conducted by him was to find out if the stuff was a product of cannabis and not the specific product, defined as Charas in Section2(iii)(a) of the Act. Cannabis products are many. Three of them are defined in Section 2(iii) of the Act. There may be others also, which are not included in the definition of cannabis (hemp), under Section 2(iii) of the Act. And one such is bhang, i.e. the leaves of the plant,possession of which is not an offence. We may observe that finely crushed green leaves of cannabis pressed into mass would also give a look similar to that of Charas. He stated that there was resin present in the sample, but he did not mention its percentage in his report, as the same was not required to be mentioned. His statement that resin was present in the sample indicates that the entire stuff was not - 33 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 resin. Further, his statement that the presence of tetrahydrocannabinol indicates that the stuff is cannabis product, shows that tetrahydrocannabinol is supposed to be present not only in resin/Charas but also in other forms of cannabis (hemp), i.e. ganja and mixture, as defined in Sections 2(iii)(b) and 2(iii)(c) of the Act, respectively. As a matter of fact, tetrahydrocannabinol is present not only in the three forms of cannabis(hemp), defined in Section 2(iii) of the Act, but also in its leaves, stem and even the seeds, as we would be indicating in the later part of this judgment and, therefore, the mere presence of tetrahydrocannabinol or cystolithic hair, which is the fabric of the cannabis plant, do not mean that the analyzed stuff is Charas, which means separated resin, per Section2(iii)(a) of the Act, and not any other product of cannabis. 17. In the remaining two cases, reports are given by Shri A.K. Wasuja, Chemical Examiner of State Forensic Science Laboratory, Junga (H.P.), who was examined as a Court witness by one of us (Surjit Singh,J)sitting in single.In one of his reports, Ex. PX, in case titled Karuna Shankar Puri versus State (Cr.A No.500/2008), he has stated that Charas is a resinous mass and resin is an ingredient of Charas, which on testing was found present. This mention in the result of analysis suggests that the witness is not even aware of the definition of Charas. Resin is not an ingredient of Charas but it is the separated resin alone which is Charas, per definition given in Section 2(iii)(a) of the Act. 18. Chemical Examiner, Shri A.K. Wasuja, when examined as a Court witness, by this Court, in Criminal - 34 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 Appeal No.500 of 2008, titled as Karuna Shankar Puri versus State, stated that he did not agree with the definition of “Charas”, as given in Section 2(iii)(a) of the Act and that as a matter of fact “Charas” was composition of about 400 substances. In support of this claim, he relied upon Ex. C-1, comprising four sheets of some literature downloaded by him from the Internet. Ex. C-1 does not pertain to Charas but Marijuana or Marihuana, which means cannabis. When his attention was drawn to this fact, he admitted that Ex. C- 1 pertained to Marijuana. 19. “Marijuana”, as per Webster’s Third New InternationalDictionary,Volume11,meansthedriedleaves and flowering tops of the pistillate hemp plants that are the source of the drug cannabin and are sometimes smoked in cigarettes with consequent effect of the drug on the higher nerve centers to produce peculiar psychic disturbances and other words for “Marijuana”, as per the aforesaid Dictionary are bhang, ganja and hashish. That means “Marijuana” includes not only Charas, ganja and mixture, as defined in clauses (a), (b) & (c) of Section 2(iii) of the Act, respectively, but also dried leaves and other parts of cannabis plant. 20. From a reading of the statements of Dr. R.S. Verma, Director of Central Forensic Science Laboratory, Chandigarh, examined as PW-11 in the appeal titled Panne Lal versus State and as DW-1 in appeal titled State versus Jeet Ram by the trial Courts; and Shri A.K. Wasuja, Chemical Examiner, examined as CW-1 by a Single Judge Bench of this Court in appeal titled as Karuna Shankar Puri versus State, it appears that both the Experts are unaware - 35 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 of the term “Charas”, as defined and made an offence under the Act and that the tests were conducted by them to find if the stuff contained tetrahydrocannabinol and cystolithic hair. They did not conduct any test to ascertain if the stuff was resin. On the contrary, their statements and reports, particularly report Ex. PW-9/D given in case titled Raj Kumar versus State, show that the samples, which were examined were not resin/Charas in entirety but contained some unspecified and perhaps uncertained quantity of Charas/ resin. 21. We have noticed hereinabove that tetrahydrocannabinols are found not only in the Charas, which means separated resin of cannabis plant but also in ganja, as defined in Section 2(iii)(b) of the Act and even in the leaves, seeds and stems of cannabis plant. We have observed so, on the basis of authoritative literature. 22. In The New Encyclopaedia Britannica, 15th Edition, tetrahydrocannabinol or THC is defined as active constituent of cannabis (Marijuana/Marihuana) isolated from Indian hemp plant (cannabis stiva). 23. In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Sixth Edition, it is mentioned at Page-10.54, in answer to Question No.10.21 that tetrahydrocannabinol-THC is active principal and it is present in bhang to the extent of 15 per cent, in ganja to the extent of 25 per cent and in Charas to the extent of 25- 40 per cent. 24. In Principles and Practice of Forensic Medicine, First Edition, by Dr. Umadethan, it is mentioned at Page - 486 that principal psycho active substance in - 36 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 cannabis (Marijuana, Marihuana) is delta-9 tetrahydrocannabinol and besides this there are cannabinol, cannabidiol, cannabinoleic acid and 400 other cannabinoids. 25. Cannabis, according to Lyon’s Medical Jurisprudence in India, Tenth Edition (Page-747), includes bhang, which means dried leaves, ganja, flowering tops, Charas, the resin which exudes from the leaves and branches, which is often adulterated and Majun, a sweetmeat prepared with bhang. 26. As a matter of fact, tetrahydrocannabinol is present in the resin of cannabis. Resin is present in the leaves, flowering and fruiting tops, stem and seeds of the plant. Therefore, tetrahydrocannabinol will be found even in the leaves, stem, seeds and the flowering and fruiting tops of cannabis plant. But resin is Charas, when it is separated from the plant or its aforesaid parts. Presence of resin inthe aforesaid parts does not make such parts Charas nor is the resin in such parts Charas, unless separated, in view of the definition in Section 2(iii)(a) of the Act. 27. Learned Advocate General, who appeared for the State, submitted that a similar question was raised before a Division Bench of Gujarat High Court, in Dhanpalsingh Barunsingh Thakur and others versus State of Guajrat, 1995 Cri. L.J. 3751, and the learned Judges, relying upon the report of the Chemical Examiner, held that the entire sample stuff was Charas. A reading of the judgment shows that the Expert, who appeared as PW-1 based his opinion not only on his own tests but also the report of Botanical Expert. The substance was found to - 37 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 contain cannabis species, as it gave positive result, when subjected to para-aminon phenol test and thin layer chromatography test. Contention raised in that case was that the Expert had not given the opinion that the substance was resin obtained from cannabis plant or a concentrated preparation and resin known as hashish oil or liquid hashish. No doubt, the Expert in that case did not specifically say that the sample stuff was resin of cannabis plant but he conducted two tests, i.e. para-aminon phenol test and thin layer chromatography test and came to the conclusion that the sample was Charas, which meant resin. 28. In the present case, as noticed hereinabove, it is made out from the reports, particularly report Ex. PW-9/D as also the testimony of the two Experts, namely Dr. R.S. Verma and Shri A.K. Wasuja, that the entire stuff was not resin and that the tests, which they conducted, were meant to ascertain whether the stuff was cannabis(Marijuana)and not for Charas. Therefore, the judgment of the Gujarat High Court, referred to above, does not help in determining the question we are dealing with. 29. As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang etc., can also be determined, with reference to the percentage - 38 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 of tetrahydrocannabinol in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. According to Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of bhang it is 15 per cent, in the case of ganja it is about 25 percent and in the case of Charas it is between 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards cystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offence, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offence, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant. 31. In view of the above stated position, we hold that Experts’ reports in none of these six cases prove that the stuff recovered from the appellants/accused was Charas. The possibility of the stuff recovered from them - 39 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 being only bhang, i.e. the dried leaves of cannabis plant, possession of which is no offence, cannot be ruled out. 32. Now, we proceed to take up the individual cases. 33. In Panne Lal versus State (Cr.A No.45/2008), Karuna Shankar Puri versus State (Cr.A No.500/2008) and Sunil versus State (Cr.A No.267/2007), no other point had been urged by the learned counsel for the appellants. Criminal Appeal titled State versus Jeet Ram (Cr.A No.363/2008), filed by the State against the order of acquittal, does not survive, in view of our aforesaid finding that the Chemical Report does not prove that the stuff was Charas. 34. In appeal titled Surinder Singh versus State (Cr.A No.311 of 2007), it has been argued on behalf of the appellant that there are several contradictions in the testimony of the witnesses, which belie the prosecution story. It was also argued that there is no evidence, indicating that the appellant was the owner of the vehicle or had anything to do with the vehicle from which stuff was recovered. Further, it was contended that link evidence was missing and the presence of some of the witnesses on the spot was highly doubtful. 35. For appreciation of the above submissions, facts of the case need to be noticed. On 16th September, 2006, around 10.30 a.m., when a Police Party, headed by Inspector Trilochan Dutt (PW-11), of which Constable Subhash Kumar (PW-1), Constable Kishori Lal (PW-2), Constable Rajinder Kumar (PW-3), HC Yoginder Kumar(PW-10) and some more police officials were the - 40 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 other members, was present in a forest on Dhamandri- Tayali road, a Maruti Van bearing registration No.HP-02- 2885 appeared from Tayali side. It was being driven by appellant Surinder Singh. Van was got stopped and checked. A bag containing a polythene bag, in which there was Charas, was recovered from the front side of the Van near the seat adjacent to driver’s seat. On being weighed, the stuff was found to be 2.650 kgs. Two samples, each weighing 30 grams, were separated. One sample was sent to the Chemical Examiner, who vide report Ex. PX gave the opinion that it was Charas. 36. Learned counsel representing the appellant pointed out contradictions in the statements of the above named witnesses, who formed the Police Party, with regard to the number of the police officials, the condition of the number plate of the Van, the exact place in the Van from where bag containing Charas was recovered, which particular member of the Police Party searched the bag, time when the Police Party reached the spot, who saw the bag containing Charas first, how many other vehicles were checked on way to the site where the Van of the appellant was checked, when did the Police Party leave the Police Station, what were the units of the weights that had been used to weigh the stuff and the manner of weighing the stuff. 37. We have gone through the testimony of PW-1 Constable Subhash Kumar, PW-2 Constable Kishori Lal, PW-3 Constable Rajinder Kumar, PW-10 HC Yoginder Kumar and PW-11 Inspector Trilochan Dutt. The alleged contradictions are very minor and in no way affect the - 41 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 credibility of the above named witnesses, with regard to the search and seizure of the stuff from the Van. All the witnesses have stated, with one voice, that they were members of the Police Party and that the vehicle was stopped at the site of its search and a bag was recovered from the front portion of the Van near the front seat adjacent to the driver’s seat. 38. Next contention is that the vehicle is not connected with the appellant, as no documents of the vehicle were seized and produced in the Court. Prosecution was not supposed to have proved that the appellant is the owner of the vehicle or he has anything to do with the vehicle. He was driving the vehicle, in question. He was all alone in the vehicle, when it was got stopped and checked and stuff was recovered. Therefore, the presumption is that the stuff belonged to him. What the prosecution was required to prove was that the stuff was in his possession and not that the vehicle by which he was carrying belonged to him or how he happened to be in control of that vehicle. 39. Another submission made on behalf of the appellant is that link evidence adduced, in the form of testimony of PW-6 MHC Man Dev and PW-7 Constable Naresh Kumar, was discrepant. 40. It was submitted that sample was initially sent to the State Forensic Science Laboratory at Kandaghat, but the In-charge of that Laboratory returned the same, due to over-work and then it was sent to the Central Forensic Science Laboratory at Chandigarh two days later. However, there was no entry in the Malkhana Register, regarding the - 42 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 return of sample by the In-charge of State Laboratory. PW- 6 MHC Man Dev admitted that no entry about the return of the sample by the State Laboratory had been made in the Register of Malkhana, but at the same time he stated that an entry had been made in the Rojnamcha, which he was in possession of when in the witness-box. Therefore, mere absence of entry in the Malkhana Register about the return of the sample and its re-depositing in the Malkhana, in our considered view, makes no difference, especially when in the Rojnamcha there is an entry about the return of the sample by the State Laboratory. 41. Learned counsel further submitted that as per cross-examination of PW-6 MHC Man Dev, parcels containing case property and samples of a number of cases bore seal ‘T’, which fact indicated that possibility of tampering with the case property or the sample could not be ruled out. Of course, the witness, in his cross- examination, did state that as per entry in the Malkhana Register, case property of various cases bore seal ‘T’, but he did not say that the impression was the same in all the cases. There are many Investigating Officers in a Police Station and all of them get their own seals prepared and often the seals produce impressions of letters of English alphabet. However, the size, shape and formation of the letters vary, because such seals are usually prepared manually and, therefore, impressions of one seal are always different from the impressions of other seals, even if they are of the same letter. 42. In appeal titled Raj Kumar versus State (Cr.A No.314/2008), prosecution case is that on 18th October, - 43 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 2007, around 2.15 p.m., when PW-13 SI Kushal Chand of Police Station, Una, along with ASI Karan Pal Singh, Constable Chanan Singh, Constable Vijay Kumar and lady Constable Raj Rani, was present at Rotary Chowk, Una, he received secret information that the appellant, who ran a Drycleaner’s shop, near the old hospital building, dealt in sale and purchase of Charas and had kept Charas in his shop for the purpose. He reduced that information into writing (Ex. PW-12/A) and sent the writing to Superintendent of Police, Una, through Constable Vijay Kumar. He also drew a report for registration of the case, which is Ex. PW-7/B and sent it to the Police Station, through Constable Chanan Singh. He associated with him two independent witnesses, namely Ashwani Kumar (PW- 1) and one Naresh Kumar, and went to the shop of the appellant. Deputy Superintendent of Police, PW-6 Diwakar Sharma, on being directed by Superintendent of Police, Una, also reached the shop of the appellant. Appellant was informed that it was intended to search his person and he had a right to be searched in the presence of a Gazetted Officer of one of the notified departments or a Magistrate and in case he so desired search of his person could be arranged in the presence of a Magistrate or such a Gazetted Officer. Appellant opted for being searched by PW-13 SI Kushal Chand, in the presence of PW-6 Diwakar Sharma, Deputy Superintendent of Police, who had also reached the spot by that time. On search, 50 grams Charas was recovered from the right side pocket of the pants, which the appellant was wearing. The Charas was wrapped in a white plastic envelope. It was weighed. Two samples, - 44 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 weighing 10 grams each, were separated. Samples and the bulk Charas were made into three separate parcels and the parcels were sealed with a seal that produced the impression of letter ‘A’ of English alphabet. Specimen impressions of the seal were taken on a separate piece of cloth. Memo of search and seizure was prepared, NCB forms were filed in triplicate, site plan was prepared and the appellant was arrested. 43. Appellant, while in police custody, was interrogated. He told that he had kept Charas in the Puja room of his house in village Kotla, in a trunk, and could get the same recovered. Deputy Superintendent of Police, who by that time had left for his Office, was informed, telephonically.PW-13 SI Kushal Chand then proceeded to the house of the appellant alongwith Raj Kumar and Pritpal Singh. By the time they reached the house of the appellant, Deputy Superintendent of Police, PW-6 Diwakar Sharma, also reached. Appellant led PW-13 SI Kushal Chand, PW-6 Diwakar Sharma and the independent witnesses to his Puja room and get recovered from a trunka plastic bag containing Charas, which weighed 1.400 kgs. Two samples, each weighing 25 grams were separated. The samples and the bulk Charas were made into three separate parcels and were sealed with a seal that produced the impression of letter ‘K’ of English alphabet. Search and seizure memo was prepared. Case property was deposited with the Moharrar Head Constable. One sample taken from the Charas recovered in the course of personal search of the appellant and one sample of the Charas recovered from the house of the appellant were - 45 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 sent to the Chemical Examiner, who gave the opinion that the samples were of Charas. 44. During the course of trial, independent witnesses examined by the prosecution, namely PW-1 Ashwani Kumar, PW-2 Rajesh Kumar, PW-3 Des Raj and PW-4 Santosh Rani, who allegedly witnessed the personal search and the house search of the appellant, turned hostile. They were cross-examined by the prosecution with the leave of the Court. They did not say anything favourable to the prosecution, even in their cross- examination. Raj Kumar and Pritpal Singh, the alleged witnesses of disclosure statement, were not examined. 45. Other two witnesses examined by the prosecution were PW-13 SI Kushal Chand and PW- 6Diwakar Sharma, Deputy Superintendent of Police. 46. Learned counsel for the appellant submitted that testimony of PW-13 SI Kushal Chand and PW-6 Diwakar Sharma, Deputy Superintendent of Police, does not inspire confidence and that even though there are no apparent contradictions in their testimony, yet some inconsistencies and improbabilities in their testimony make the prosecution case highly doubtful. 47. PW-13 SI Kushal Chand testified that he had received information that the appellant indulged in sale and purchase of Charas and that in case his shop was searched,without loss of any time, Charas could be found.In the report, under Section 42(2) of the Act, Ex. PW- 12/A, which he sent to the Superintendent of Police, as also report Ex. PW-7/B, which he sent to the Police Station for the registration of the case, he specifically mentioned - 46 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 that the information was that in case search was conducted Charas could be recovered from the shop of the appellant. 48. However, neither PW-13 SI Kushal Chand nor PW-6 Diwakar Sharma, Deputy Superintendent of Police, uttered a word about the search of the shop of the appellant, meaning thereby that the shop was not searched. Now, when the information was that the Charas had been kept in the shop, PW-13 SI Kushal Chand was supposed to have conducted search of the shop first. Not only that in his testimony as PW-13, SI Kushal Chand did not say that the shop was searched, even in the Special Report Ex. PW- 12/A, which he sent to the Superintendent of Police after conducting search, he did not mention that search of the shop was also carried out, meaning thereby that shop was not searched. 49. The fact that the information, which PW-13 SI Kushal Chand claimed to have received, was that the Charas was kept in the shop but his not searching the shop and instead searching the person of the appellant, is suggestive of some hanky-panky, especially when only 50 grams Charas, wrapped in a plastic envelope, is alleged to have been recovered during personal search. Such a small quantity can easily be planted and even manipulated to be demonstrated to have been recovered from personal search, by sleight of hand. 50. Evidence with respect to the alleged disclosure statement made by the appellant that he had kept Charas in his house and the recovery of Charas, pursuant to that statement, also does not inspire confidence.PW-13 SI Kushal Chand, in his cross- - 47 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 examination, stated that after conducting the personal search of the appellant he, the appellant and the witnesses straightway went to the house of the appellant and that the disclosure statement was made by the appellant at his shop. It was suggested to him that in the statement of Pritpal Singh as also in the statement of Rajesh Kumar, which he recorded, under Section 161 of the Code of Criminal Procedure, it was written that the disclosure statement about the Charas being in the Puja room had been made at the Police Station. He admitted the suggestions to be correct, but did not reconcile his statement in the Court that the disclosure statement had been made by the appellant at the shop, with the statements of the above named two witnesses, under Section 161 of the Code of Criminal Procedure, in which it is recorded by him that the disclosure statement was made at the Police Station. This fact by itself suggests that the story about the appellant having made disclosurstatement leading to the discovery of Charas from Puja room of his house is not true. 51. As a result of our aforesaid finding on the common question involved in all the six appeals, we allow the five appeals filed by the convicts-appellants, i.e. Sunil versus State (Cr. A No.267/2007), Surinder Singh versus State (Cr. A No.311/2007), Panne Lal versus State (Cr.A No.45/2008), Raj Kumar versus State (Cr.A No.314/2008) and Karuna Shankar Puri versus State (Cr.A No.500/2008). Appeal filed by appellant Raj Kumar, i.e. Cr.A No.314 of 2008, Raj Kumar versus State, is allowed also for the additional reasons stated hereinabove, while dealing with - 48 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 the same individually. Consequently, judgments of the trial Courts, convicting and sentencing the above named appellants, are set aside and they are acquitted. They being in jail, serving the sentence awarded by the trial Courts, are ordered to be released forthwith, in case their detention is not required in any other case. 52. Appeal filed by the State, i.e. Cr.A No.363 of 2008, State versus Jeet Ram, is dismissed, in view of the finding on common question involved in all the six appeals. All the six appeals stand disposed of, in the aforesaid terms.” 20. In Dayaram Singh’s case supra, the Madhya Pradesh High Court held as under:- “3. As per the allegations in the present case, on 19.3.2011 the police Amarpatan made a Panchanama that from the pump house of the petitioners, the alleged 2.500 kgs of Ganja was recovered by the Excise Department. The petitioners have assailed the lodging of FIR in question and subsequent proceedings undertaken in pursuance thereof on legal parameters. In order to appreciate the contentions of the learned counsel for the petitioners, it would be relevant to see the definitions as enumerated in Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act, 1985”). For ready reference, Section 2(iii) of the NDPS Act, 1985 is hereby reproduced as under:— “(iii) cannabis (hemp) means- - 49 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 (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; (b) ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.” 4. Cannabis plant and cannabis (hemp) are two distinct contrabands under the NDPS Act, 1985. Cannabis plant means any plant of the genus cannabis. Charas is separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant. It also includes concentrated preparation and resin known as hashish oil or liquid hashish. Ganja is flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops). 5. The contraband allegedly recovered from the petitioners was subjected to chemical analysis. As per the chemical analysis report dated 31.3.2011, Ex.A-1 and A-2 were found containing greenish and whitish coloured leaves, flowers and vegetable item. The chemical microscope and thin layer chromatography examination - 50 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 found the contraband to be Ganja. The FSL report did not show the presence of tetrahydrocannabinol in any manner. The sample as a whole was classified as Ganja without any classification based on percentage of tetrahydrocannabinol. In case of Bhang, tetrahydrocannabinol in the sample stuff would be 15%. In case of Ganja, it would be 25% and in case of Charas, it would be between 25-40%. The presence of tetrahydrocannabinol on percentage pattern in the sample stuff would show whether it is actually Bhang, Ganja or Charas. In the absence of such percentage of tetrahydrocannabinol given in the FSL report, no other evidence would make the recovered contraband to be a Bhang, Ganja or Charas. Reference can be made to the judgment of the Himachal Pradesh High Court in Nagendra Shah v. State of HP, (2010) 4 RCR (Cri) 194. 6. Learned counsel for the petitioners, even in the absence of any such pleadings submitted that the issue is purely a legal issue and can be racked up during the course of arguments and the arguments are duly supported by the precedents in Nagender Shah's case (supra) and Anav Jain v. State of Haryana, CRM-M No. 51512 of 2022 decided on 1.12.2022, wherein the Court after considering the different precedents on the subject held the aforesaid proposition. As per the Working Procedure Manual of conducting the test, the Directorate of forensic Science Services, Ministry of Home Affairs, Government of India has prescribed - 51 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 working procedure in terms of 5.7.2.5 i.e. test for differentiation between Bhang, Ganja and Charas. 7. The FSL report is totally silent with regard to adoption of working procedure while determining the contraband to be Ganja only. In the absence of showing presence of Tetrahydrocannabinol, Cannabinol and Cannabidiol being part of manufacturing process, no offence under the NDPS Act, 1985 is made out. Para No. 29 and 30 of judgment of State of Himachal Pradesh v. Roshal Lal, 2010 SCC OnLine HP 2554 are reproduced as under:— “29. As noticed hereinabove, the only tests, which were conducted by the Experts, were to find out tetrahydrocannabinol or cystolithic hair. They found tetrahydrocannabinol but did not indicate in their reports the percentage thereof. While in the witness-box also, the Experts did not say what was the percentage of tetrahydrocannabinol in the samples. Specific category of a cannabis product, like Charas, ganja, or mixture, as defined in Section 2(iii) of the Act, or anything else, like bhang, etc., can also be determined, with reference to the percentage of in the stuff. As noticed hereinabove, percentage of tetrahydrocannabinol varies from one product to other product of cannabis. 30. According to Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in the case of bhang it is 15 per cent, in the case of ganja it is about 25 per cent and in the case of Charas it is between 25 and 40 per cent. When the percentage of tetrahydrocannabinol in the sample stuff is not indicated in the report nor had any test been conducted to ascertain whether the stuff was Charas, that is to say resin, or some other preparation of cannabis, it cannot be said that the stuff was in fact Charas. As regards eystolithic hair, these being the fibre of cannabis plant, are bound to be present in all the products of cannabis. It is quite likely that the samples were only of bhang, i.e. - 52 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 the dried leaves of cannabis plant, which is also supposed to contain 15 per cent concentration of tetrahydrocannabinol. Possession of only the leaves or the seeds of cannabis plant is no offense, because it is only the Charas, ganja or mixture, as defined in Section 2(iii) of the Act, which is an offense, under Section 20 of the Act. Leaves and seeds of cannabis plant are not included either in the definition of Charas or ganja and are rather specifically excluded from the definition of ganja, unless accompany the flowering and fruiting tops of the plant.” 8. The FSL report is absolutely silent about the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol, and therefore the prosecution has miserably failed to show the commission of any offence. Reference can also be made to Arjun Singh v. State of Haryana, (2004) 4 RCR (Cri) 506. Evidently the Bhang does not fall under the definition of cannabis hemp as defined under Section 2(iii) of the NDPS Act, 1985. 9. The alleged contraband recovered from the petitioners finds place at Sl. No. 55 of the table, wherein 1000 gms. would fall under small quantity and commercial quantity starts from 20 kg onwards. After filing of the charge sheet/173 of Cr. P.C., the ingredients of the FSL report cannot be improved. The FSL report is discrepant with regard to presence of tetrahydrocannabinol in any manner. The sample stuff can only be categorized as Ganja, if percentage of tetrahydrocannabinol is found to be 25%. 10. In view of the law laid down by the Division Bench of the Himachal Pradesh High Court in Nagendra Shah's case (supra) and other precedents on the subject, I am of - 53 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 the view that further prosecution in the aforesaid criminal case would result in futility, as the sample stuff cannot be categorized as Ganja on the basis of chemical analysis. The sample stuff has been categorized as Ganja solely on the basis of FSL report, which is discrepant in terms of percentage of tetrahydrocannabinol, rather cannabinol as a component in the sample stuff has not been mentioned in the FSL report. The FSL report has only indicated that some greenish, whitish coloured leaves and flowers were found in the sample stuff and on the basis of some chemical analysis and thin layer chromatography, sample stuff was categorized to be Ganja. In the aforesaid test, tetrahydrocannabinol was not found as a component contributing any required percentage in order to bring the sample stuff within the four corner of Ganja. 11. For the reasons recorded hereinabove, I deem it appropriate to accept this petition, as no bonafide purpose would be served in carrying out with the case, as the recovered article/item cannot be categorized to be Ganja by any stretch of imagination. The complicity of the petitioners on the basis of recovery of small quantity of Ganja cannot result in any conviction, as no case is made out to bring the alleged contraband within the definition of Ganja. 12. In view of the aforesaid, this petition is allowed. The FIR/Crime No. 265/2011 and subsequent proceedings undertaken in pursuance thereof are hereby quashed. Normal consequences to follow.” - 54 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 21. As stated supra, the undisputed material on record will clearly indicate that the I.O. was not satisfied with the initial / preliminary report dated 20.09.2022 submitted by the CC Laboratory erroneously / wrongly confirming that the samples contained ‘ganja’ which is a ‘genus of cannabis’ and it was under these circumstances, that the I.O. sought for clarification from the CC Laboratory regarding quantity, existence, percentage of THC in the samples so as to ascertain and confirm that the same contained ‘ganja’ and its effect on the human body for the specific purpose of filing a charge sheet. In response to the same, the CC Laboratory submitted a reply categorically stating that the queries put forth by the I.O. could not be answered for lack / want of necessary / requisite equipment which was not available with the CC Laboratory. Under these circumstances, in the face of a completely inconclusive / flawed / indefinite / indecisive and unconfirmed / indeterminate report and reply submitted by the CC Laboratory, the I.O. could not have submitted a charge sheet for the alleged offences against the petitioner in the absence of legal or acceptable material in this regard and the trial court has proceeded to pass the impugned order erroneously rejecting the - 55 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 discharge application filed by the petitioner, thereby warranting interference by this Court in the present petition. 22. It is needless to state that liberty would have to be reserved in favour of the respondents to conduct further investigation, if they are so advised and proceed further in accordance with law. 23. In the result, I pass the following: ORDER (i) Petition is hereby partly allowed. (ii) The impugned charge sheet at Annexure-C filed by the 1st respondent in Spl.C.No.249/2023 pending on the file of Prl.District and Sessions Judge, Tumakuru, are hereby quashed. (iii) The impugned cognizance dated 07.02.2023 and issue of process dated 09.02.2023 passed in Spl.C.No.249/2023 pending on the file of Prl.District and Sessions Judge, Tumakuru, at Annexure-D are hereby set aside. (iv) The impugned order at Annexure-K dated 26.03.2024 passed in Spl.C.No.249/2023 by the trial court is hereby set aside. - 56 - NC: 2025:KHC:2416 CRL.P No. 10262 of 2024 (v) The impugned proceedings in Spl.C.No.249/2023 pending on the file of Prl.District and Sessions Judge, Tumakuru, are hereby quashed. (vi) Liberty is reserved in favour of the respondents to conduct further investigation and proceed further in accordance with law, bearing in mind the observations made in this order. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC/SRL List No.: 3 Sl No.: 2