Compliance with procedural requirements under the NDPS Act, proper sampling and analysis of seized substances, and the interpretation of the THC content are crucial in determining guilt under the Act.

ASHUTOSH KUMAR, J.

1. Kumar Pal, the appellant impugns the judgment and order of conviction dated 31.03.2011 and 05.04.2011 passed by the Additional Sessions Judge/Special Judge, NDPS (North Delhi) in S.C case No.24/09 (arising out of FIR No.59/03, P.S. Crime Branch) whereby he has been convicted under Section 20 of the NDPS Act and has been sentenced to undergo rigorous imprisonment for 10 years, fine of Rs.1 lakh and in default of payment of fine a further simple imprisonment for one year.

2. The appellant was found in possession of 1 kg of charas.

3. The appellant has questioned the impugned judgment on the ground that independent persons did not join the police party while the arrest was effected; there was no proper notice as required under Section 50 of the NDPS Act; no independent person was examined during trial to support the prosecution version; there was delay in sending the sample for analysis, and the analysis report regarding the percentage of THC rendered the recovery to be of small quantity or intermediate quantity but definitely not commercial quantity.

4. The further ground of challenge in the appeal is that the very arrest of the appellant was doubtful in as much as the secret informer, only named the appellant but did not give any other details namely the physical features or the area from where the appellant was coming from or that who was to receive the narcotic substance from the appellant.

5. The appellant has challenged the assumption of the authorities regarding the seized substance to be charas and submitted that from the colour itself it could be very well be deciphered that the recovered substance was not charas and, therefore, the conviction under Section 20 was unwarranted.

6. In order to appreciate the contention of the appellant, it would be necessary for this Court to examine the deposition of Paramjeet Singh, the then ASI (PW.9) who lodged the first information report. He has deposed that on 16.4.2009 while he was posted as ASI in the Narcotic Cell of the Crime Branch, Delhi, an informer told him that the appellant who is a resident of Loni (U.P) would visit Singhara Chowk between 4.30 to 5 P.M for supplying charas to some prospective purchaser. Being satisfied about the genuineness of such information, he took the secret informer to M.L. Sharma, Narcotic Cell Inspector (PW.3) who in turn conveyed such information on telephone to the superior police authorities and whereafter a direction was issued for conducting raid.

7. He has further deposed that a raiding team comprising him; HC Mahesh Kumar (PW.4) and Constable Sanjeev Kumar (PW.8) reached the spot along with field testing kit and electronic weighing scale on an official vehicle. The appellant was identified by the secret informer whereupon PW.9 along with the raiding team challenged the appellant and asked him to disclose his name. The information which was with the raiding team was communicated to the appellant and he was apprised of his legal rights to be searched in the presence of a Gazetted officer or a Magistrate. The appellant was also given the option of personally searching the raiding team as well as the official vehicle. A written notice under Section 50 of the NDPS Act was delivered to him. The notice was, read over and explained in detail. Since the appellant was illiterate, PW.9 recorded his reply at his request which was signed by the appellant.

8. From the possession of the appellant, black substance in the form of bars and balls were recovered, which on being tested with the field testing kit was found to be charas. The quantity recovered was weighed on the electronic weighing scale and was found to be weighing 1 Kg.

9. Two samples were drawn from the recovered substance which were marked as A and B. The remaining substance was packed in a pulanda which was marked as C.

10. PW.9 has stated that he got the FSL form filled through Head Constable Sanjeev Kumar (PW.8). All the pulandas and form FSL were sealed an