THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 02.07.2010

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BAIL APPLN 2330/2008

DILIP

..... Appellant

versus

STATE

..... Respondent

Advocates who appeared in this case:

For the Appellant

: Mr Sanjiv Kumar with Mr D.M. Bhalla and Mr S.K. Santoshi

For the Respondent

: Ms Mukta Gupta with Mr Amit Sharma

CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MR JUSTICE AJIT BHARIHOKE

1.

Whether Reporters of local papers may be allowed to

see the judgment ?

Yes

2.

To be referred to the Reporter or not ?

Yes

3.

Whether the judgment should be reported in Digest ?

Yes

BADAR 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

2010:DHC:3195-DB

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 ½ 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‟).

3.

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.

4.

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

2010:DHC:3195-DB

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 affida