The main legal point established in the judgment is the requirement to send representative samples for chemical examination and the importance of following proper procedures in cases of unlawful possession of substances under the NDPS Act.

SURESH KAIT, J. 1. Vide instant appeal, appellant has challenged the impugned judgment dated 18.10.2005 whereby he was convicted for the offences punishable under Section 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘NDPS Act’) for having been found in unlawful possession of 3.5KGs of charas.

2. Also challenged the order on Sentence dated 21.10.2005 whereby, the appellant was sentenced to under RI for a period of ten years and to pay fine of Rs.1.00 Lac and in default of payment of fine, he shall further undergo SI for one year. The benefit of Section 428 Cr. P.C. has also been extended to him.

3. The brief facts of the case are that on 24.09.2003, a secret information was received that the appellant was carrying charas at a given place and at a particular time. Accordingly, a raiding team was constituted and the appellant was caught allegedly carrying 3.5 KGs of charas on 24.09.2003 at 02:00PM.

4. Further, the case of prosecution that he was carrying a green coloured polyethene bag which contains 8 smaller polyethene bags having black colour substance.

5. Accordingly, two samples of 25 Grams each were made after braking charas from each of the 08 slabs. The samples were sent to FSL and it found to be charas.

6. Mr.Aditya Wadhwa, learned counsel for appellant has argued that the sample sent to the FSL is not the representative of the entire quantity of the allegedly recovered substance. Therefore, it cannot be inferred that the quantity of 3.5KGs of recovered substance was charas.

7. He submitted, the admitted case of the prosecution is that the appellant was found carrying a green coloured polythene bag which in turn contains 08 smaller packets. It was in these smaller packets that the black coloured substance which stated to have been the charas. The PW1, investigating officer then take out small pieces of charas from each packet and made two sample parcels. These sample parcels, were sent to FSL and was later found to be charas.

8. Learned counsel has relied upon the case of Gaunter Edwin Kircher v. State of Goa: 1993(3) SCC 145 and submitted that in the similar factual matrix, their Lordships have held as under:-

"If it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination."

9. Learned counsel submitted that in the above referred case, where accused was found in possession of 12 grams of charas in two pieces (5 & 7 grams) the investigating officer had sent contraband weighing 5 grams for chemical examination. The same was found to be charas. In such situation, Hon'ble Apex Court has held that the other piece weighing 7 grams could not be inferred to be charas. Accordingly, the accused was sentenced only for possession 5 grams of charas.

10. Learned counsel has further relied upon Javed A Bhatt v. Union of India: 2007 Cri L J 3145 decided by the High Court of Mumbai wherein it has been held as under:-

“In the case at hand, the prosecution did not send all the pieces either in the form of cigars or Hats for analysis but the prosecution remained satisfied only by sending some of such pieces weighing about 50 grams and therefore, applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 grams of charas/hasis and not the entire quantity of 380 grams as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused.”

11. Learned counsel has argued that in the factual matrix of the case, since the representative sample from each of the 8 packets has not been sent for chemical examination, it cannot be inferred that the entire seized substance 3.5 KGs was a charas and the appellant could not be convicted for possession thereof.

12. He further submitted that th