DAR DURREZ AHMED, J

(1) The following question has been referred to this Bench by a learned Single Judge of this court:-

"Whether the percentage of THC in a sample of charas can by itself be determinative of the purity of the sample and whether such test is relevant or necessary for the purpose of considering the grant of bail or of awarding of sentence in terms of Section 21 read with Section 37 of the NDPS?"

(2) The above question was referred by the learned single Judge of this court by virtue of an order dated 01.05.2009. The background for such a reference is that in the course of hearing of the bail application, one of the points that arose for consideration was whether the percentage content of Tetrahydrocannabinol (THC) in the quantity of charas recovered from the petitioner could actually be determinative of its purity. As per the prosecution, the petitioner was found in possession of 4 kg of charas which would fall in the category of commercial quantity. The petitioner has been in custody since 24.05.2005. During the trial, Dr Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory had deposed that she had found the parcel sent to her in the present case to be containing charas and that she had not determined the percentage of THC in the said samples as, in her view, it was not necessary in terms of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as,,NDPS Act). Before the learned single Judge, it was urged on behalf of the petitioner that it was not only possible, but necessary for determining the purity percentage thereof which, in turn, was necessary to classify the quantity recovered under one of the three categories, namely, small, intermediate or commercial. Reliance had been placed by the learned counsel for the petitioner on two single Bench decisions in the case of Union of India v. Stephen Andreas Hofman: 2007 VII AD (Delhi) 486 and Krit Mehto v. State: 2008 (2) JCC (Narcotics) 94.

(3) On the other hand, the learned counsel for the State submitted that, although THC was one of the constituents of charas, it was not at all necessary to quantify the THC content in a contraband sample so as to determine as to whether it was charas or not and also for the purposes of determining its purity percentage. The attention of the learned single Judge, who referred the question to the Division Bench, was also drawn to a Division Bench decision of the Himachal Pradesh High Court in the case of Kamaal Chand v. NCB Chandigarh: 2008 (3) Crimes 354 (HP), wherein the said court took the view that as per the definition given in Section 2(iii)(a) of the NDPS Act, charas was a separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also included the concentrated preparation and resin known as "hashish oil" or "liquid hashish". The said court had also apparently accepted the contention that the quantum of THC found in the sample was not determinative of the category in which the recovery ultimately fell, i.e., whether it was a small quantity, intermediate quantity or a commercial quantity. In the order dated 01.05.2009, passed by the learned single Judge of this court, it is observed that the evidence in the form of the affidavit and the statement of the scientific expert Dr Madhulika Sharma of the FSL, Rohini, was not available to this court when it gave its decision in Stephen Andreas Hoffman (supra). He also noted the contention of the learned counsel for the State that the decisions with regard to percentage purity in Ansar Ahmed v. State: 123 (2005) DLT 563 and E. Micheal Raj v. NCB: [AIR 2008 1720 (SC) = 2008(5) SCC 161] related to diacetylmorphine and not to charas which stood on an entirely different footing.

(4) In this backdrop, the learned single Judge felt that the question which arose for determination was of substantial importance and, therefore, he was of the view that it would be appropriate that the question be