The main legal point established in the judgment is the determination of the quantity of contraband under the NDPS Act and the retrospective application of the Government Notification dated 18.11.2009.

S.P. GARG, J.

1. Challenge in this appeal is a judgment dated 15.01.2013 of learned Special Judge (NDPS), Delhi in Sessions Case No.42/2009 arising out of FIR No.90/09 PS Narcotics Branch whereby the appellant – Prahlad Meena was held guilty for committing offence punishable under Section 21(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (In short ‘NDPS Act’). By an order dated 15.01.2013, he was sentenced to undergo RI for ten years with fine Rs.1 lac.

2. Briefly stated, the prosecution case as set out in the charge-sheet was that on 16.06.2009 at about 11.15 a.m. the appellant was found in unlawful possession of 1.7 kg of Heroin concealed in a striped raxine bag, containing 3.2% diacetylmorphine and 1.2% phenobarbital on road in front of main gate of Ramleela ground, Turkman Gate, Delhi.

3. On 16.06.2009 at around 09.45 a.m. PW-8 (SI Sunil Kumar) received a secret information at the office of Narcotics Cell to the effect that the appellant – Prahlad Meena r/o Distt. Bara (Rajasthan) involved in supply of Heroin and opium in bulk quantities in the areas of Delhi, U.P. and Punjab would come to supply Heroin to one Bablu in front of main gate Ramleela ground, Turkman Gate, in between 11.00 – 11.30 a.m. The secret informer was produced before PW-5 (M.L.Sharma). After satisfying himself about the information conveyed by the secret informer, PW-5 (M.L.Sharma) informed Mr.S.R.Yadav, ACP/N&CP who directed him to conduct the raid. The secret information was recorded vide DD No.8 (Ex.PW-4/D) at about 10.00 a.m. A raiding team was constituted. Certain public persons were requested to join the proceedings at various spots but they declined. At around 11.10 a.m. the appellant was seen coming from the gate of Ramleela ground from the side of Turkman Gate having a black colour bag. The secret informer identified him. The appellant came in front of the main gate and started waiting for someone. After 4 or 5 minutes, when he started to go back, he was apprehended at around 11.15 a.m. Notice (Ex.PW-2/A) under Section 50 NDPS Act served upon the appellant. On search of the bag, contraband weighing 1.700 kg. was recovered. Two samples of 5 grams each were drawn from the recovered Heroin. Necessary proceedings were conducted at the spot. Rukka (Ex.PW-8/B) was prepared and FIR was lodged. Subsequent investigation was taken over by PW-9 (SI Satyawan). The appellant was arrested. Special report (Ex.PW-6/E) under Section 57 NDPS Act was sent on 17.06.2009. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. Upon completion of investigation, a charge-sheet was filed against the appellant in the Court. In order to establish its case, the prosecution examined ten witnesses. In 313 Cr.P.C. statement, the appellant pleaded false implication and denied his involvement in the crime. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

4. Learned Senior Counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The incident was dated 16.06.2009 when Notification dated 18.11.2009 was not in force. Tremendous variation in the FSL reports remained unexplained. First FSL report revealed the contents of diacetylmorphine as 3.25 % and as per it, the total quantity of Heroin recovered was only 54.4 grams which was not a ‘commercial’ quantity. When the samples were re-examined, the second FSL report indicated the contents of diacetylmorphine as 0.2 % and if its actual weight is taken into consideration, the total quantity comes to 3.4 grams which is a ‘small’ quantity. Learned Senior Counsel would further submit that no sincere efforts were made to associate any independent public witness despite their availability. Mandatory provisions of Sections 52 and 55 were not complied. Learned Addl. Public Prosecutor urged that the Trial Court has given detailed reasons as to how