Bombay High Court
Narcotics Control Bureau Mumbai ... vs Anuj Keshwani S/O. Sanjay ... on 29 November, 2021
Bench: R.P. Mohite-Dere
Digitally signed by
SHAGUFTA SHAGUFTA Q PATHAN
Q PATHAN Date: 2021.11.29
15:59:48 +0530
wp-2077-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2077 OF 2021
Narcotics Control Bureau,
Mumbai Zonal Unit,
3rd Floor, Exchange Building,
SS Ram Gulam Marg, Ballard Estate,
Mumbai - 400 001
(Through Intellingence Officer,
K. Kiran Babu, NCB, Mumbai)
C.R. No. 16 of 2020 ...Petitioner
Versus
1. Anuj Keshwani S/o Sanjay Keshwani,
Age - 30 years, R/o. Flat No. B-15,
B Wing, First Floor, U. P. Nagar Building,
Dr. Ambedkar Road, Behind Gulshan Dairy,
Khar (W), Mumbai - 52
(Presently lodged in Arthur Jail in
NCB C. R. No. 16 of 2020)
2. The State of Maharashtra ...Respondents
Mr. Anil C. Singh, ASG a/w Mr. Aditya Thakkar, Mr. Advait Sethna,
Mr. Shreeram Shirsat, Ms. Smita Thakur, Mr. Pranav Thacker and
Mr. Amandeep Singh Sra for the Petitioner
Mr. Rizwan Merchant a/w Mr. Taraq Sayed, Ms. Gayatri Gokhale and
Ms. Zainba Abdi for the Respondent No.1
Mr. S. S. Hulke, A.P.P for the Respondent No.2- State
SQ Pathan 1/53
wp-2077-2021.doc
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 3 rd SEPTEMBER 2021
PRONOUNCED ON : 29 th NOVEMBER 2021
JUDGMENT :
1 Heard learned Additional Solicitor General (`ASG') for the
petitioner-Narcotics Control Bureau ('NCB'), and the learned counsel for the
respondent No. 1.
2 Rule. Rule is made returnable forthwith at the request and with
the consent of the parties and is take up for final disposal.
INTRODUCTION :
3 A very interesting and a crucial question, which will have a
bearing in several Narcotic Drugs and Psychotropic Substances (`NDPS')
cases, in which blotter paper containing Lysergic Acid Diethylamide (`LSD')
is seized, has arisen in this petition i.e. whether the blotter paper forms an
integral part of the LSD drug when put on a blotter paper for consumption ?
SQ Pathan 2/53
wp-2077-2021.doc
FACTS :
4 A few facts as are necessary to decide the aforesaid petition are as
under :
According to the prosecution, during the course of investigation
of CR No.16/2020, registered with the NCB, a voluntary statement came to
be recorded of one Kaizan Ebrahim. It is alleged that the accused - Kaizan
Ebrahim disclosed the respondent No.1's name, as a receiver of
ganja/marijuana. In the house search of respondent No.1 a total of 585 gms
of hashish/charas; 270.12 gms of marijuana/ganja; 3.6 gms of THC; and 0.62
gms of LSD (31 blot papers) were allegedly recovered. The said contraband
was seized under a panchanama by the petitioner-NCB on 6th September 2020.
Pursuant thereto, the petitioner sent the recovered samples/contraband for
examination to the Forensic Science Laboratory (`FSL'), Gujarat. After receipt
of the report from the FSL, Gujarat and after completion of investigation, the
NCB filed a complaint in the Special Court for NDPS, Mumbai. The
respondent No.1-Anuj Keshwani preferred an application before the learned
SQ Pathan 3/53
wp-2077-2021.doc
Special Judge contending therein, that as per the charge-sheet and as per the
FSL Report, the LSD contained in 31 blotter papers showed that it weighs
0.6200 gms, however, the FSL report was silent about the weight of the LSD
drops, sans the blotter papers. It was further contended that the weight
mentioned in the FSL report i.e. 0.6200 gms, included the weight of the
blotter papers alongwith the LSD drops and that the weight of the blotter
papers was required to be excluded. According to the respondent No.1, the
weight of the blotter papers could not be taken into consideration for
determining the LSD found on the same. The respondent No.1 in the said
application prayed that the NCB officers be directed to send 'QSI' to the FSL
for testing the weight of the purported LSD drug sans the blotter papers and
file their report within a period of 15 days. The said application seeking
retesting of LSD found on blotter papers was opposed by the petitioner -
NCB. The learned Special Judge vide order dated 30th April 2021, after
relying on an Order passed by this Court, in the case of Hitesh Hemant
Malhotra vs. State of Maharashtra 1, allowed the respondent No. 1's
1 Cri.BA/352/2020 decided on 07.12.2020
SQ Pathan 4/53
wp-2077-2021.doc
application (Exhibit 6 in NDPS Special Case No. 344/2021) and directed that
the sample of 'QSI' be sent to the FSL, Gujarat, for ascertaining the weight of
the purported LSD sans the blotting papers. Hence, this petition.
PETITIONER'S SUBMISSIONS :
5 The learned ASG submits that the LSD was a part and parcel of
the blotter paper on which LSD was found and forms one component,
inasmuch as, the blotter paper containing the LSD is also eaten/swallowed by
the consumer. He submits that the blotter paper containing the LSD would
constitute "preparation" of a psychotropic substance i.e. either a mixture or the
substance in a dosage form. He submits that the learned Judge had clearly
ignored and overlooked the judgment of the Apex Court in the case of Hira
Singh & Anr. vs. Union of India & Anr. 2 as well as the Statement of Objects
and Reasons behind enacting the Narcotic Drugs and Psychotropic Substances
Act (`NDPS Act'), including the Amendment Act No. 16 of 2014. Learned
ASG also relied on the judgment of the Supreme Court of United States in
the case of Richard L. Chapman, John M. Schoenecker and Patrick
2 2020 SCC OnLine SC 382
SQ Pathan 5/53
wp-2077-2021.doc
Brumm vs. United States 3 which by a majority of 7:1 specifically held in the
context of LSD, that the blotter paper though a carrier material, was a part of
the mixture. Learned ASG also relied on the judgment of the Australian Court
in the case of Finch vs. The Queen 4, which also held that the blotter paper
forms an integral part of the LSD drug. He submits that blotter paper,
impregnated with LSD, is capable of being consumed by the consumer and as
such, constitutes 'preparation' i.e. either a mixture or the substance in a dosage
form. It is also submitted that even assuming that the blotter paper is a carrier
material that, by itself, cannot mean, that it is not a part of the mixture, nor
any neutral material. He submits that any interpretation contrary to the same,
would not only be contrary to the provisions of the NDPS Act, but would also
render nugatory, the intent and purpose of the NDPS Act. He submits that the
order of this Court in the case of Hitesh Malhotra (Supra) is per incuriam,
inasmuch as, the said order does not consider the relevant provisions of the
NDPS Act, nor is there any finding or discussion on how LSD on a blotter
paper does not constitute preparation. He further submits that even otherwise,
3 1991 SCC OnLine US SC 85
4 (2016) NSWCCA 133
SQ Pathan 6/53
wp-2077-2021.doc
the said order is contrary to the ratio laid down by the Apex Court in Hira
Singh (Supra), wherein, the Apex Court dealt with how drugs are consumed,
and what would constitute a mixture or preparation. Learned ASG relied on
the Orders of some High Courts in support of his submission to show that in
cases relating to seizure of LSD on blotter paper, the Courts relying on Hira
Singh (Supra), have rejected the Bail applications of the accused therein.
Learned ASG relied on the Orders in Rijesh Ravindran vs Union of India 5
and Datta Paratkar vs. State of Goa 6, in support of his submission.
6 Learned ASG also relied on the Convention on Psychotropic
Substances of the United Nations to show that amongst the various countries,
India, Australia and United States of America, are party to the said
Convention, and as such the said judgments of the United States and Australia
would also have some bearing to the facts in issue.
5 MANU/KA/4227/2020
6 2016 (1) Goa L.R. 16
SQ Pathan 7/53
wp-2077-2021.doc
RESPONDENT NO. 1'S SUBMISSIONS :
7 Mr. Merchant appearing for the respondent No. 1 submits that
the judgment of the U.S. Supreme Court in the case of Richard Chapman
(supra) will not apply to the facts of the present case, inasmuch as, the Scheme
followed in the United States of America, for trial of a person charged for an
offence under the Narcotic Drugs Act, is different from our NDPS Act. He
submits that the laws in the United States governing the trial followed with the
procedure of sentencing, if convicted under the United States Sentencing
Commission Guidelines 1990, is completely different from the intention of the
Legislature under our domestic law i.e. NDPS Act. He further submits that the
interpretation of the term "mixture of substance" according to the U.S. Laws is
not based on the statutory interpretation as provided for under the NDPS Act
i.e. Section 2(x) and 2(xx), which define the term `manufacture' and
`preparation'. He submits that infact, the U. S. Supreme Court, in para 14 of
the Chapman's case (supra) has observed that neither the Statute nor the
Sentencing Guidelines define the terms 'manufacture' and `preparation' nor
have a common law meaning and therefore, these terms must be given their
SQ Pathan 8/53
wp-2077-2021.doc
ordinary meaning, whereas, the NDPS Act specifically defines the term
`manufacture' and `preparation' giving meaning to the same, as reflected in the
said two definitions. He submits that in Chapman's case (supra), there are
observations and contradictory findings with respect to the LSD contained in
blotter papers, inasmuch as, on the one hand, it is observed in the said
judgment that LSD when applied to a blotter paper in a solvent, is absorbed
into the paper, ultimately evaporates, after which, the LSD is left behind in a
form that can be said to mix with the paper and that the LSD crystals so left
behind inside the paper, co-mingle with the paper, whereas, on the other hand,
the learned Judges have also observed that LSD does not chemically combine
with the paper and it retains its separate existence and can be released by
dropping the blotter paper in a liquid or by licking it. It is also observed that
the LSD on blotter papers gets defused amongst the fibre of the papers and it
cannot be distinguished from the blotter paper nor can be easily separated from
it. He submits that in view of the contradictory findings in Chapman's case
(supra), the appropriate course would be to follow the NDPS Act, in
particular, the note provided under the Statute at the foot of the table
SQ Pathan 9/53
wp-2077-2021.doc
introduced under the NDPS Act, vide Standing Order 1005(E) dated 19 th
October 2001 by which the Central Government has specified in the table, the
quantities of various narcotic drugs and psychotropic substances which fall
within the term "small quantity" and "commercial quantity". He submits that
at the end of the said note at item No. 4, an amendment is inserted, as item
No. 4 vide Standing Order 2941(E) dated 18th November 2009. He submits
that the said amendment inserted by the Standing Order dated 18 th November
2009 provides greater clarity than the observations of the U.S. Supreme Court
and hence, it would be just, fair and reasonable to follow the provisions of the
NDPS Act, rather than apply the ratio of the judgment, which reflects a certain
degree of ambiguity. Mr. Merchant further submits that Chapman's case
(supra) reflects some ambiguity in paragraph 21 of the said judgment, where
the Court has observed that LSD is not sold by weight but by dose and the
"carrier medium" is not strictly used to dilute the drug and instead, the carrier
medium is used to facilitate the distribution of the drug and that blotter paper
makes LSD easier to transfer, store, conceal and sell the said drug.
8 Mr. Merchant submits that the U.S. Supreme Court has observed
SQ Pathan 10/53
wp-2077-2021.doc
that the blotter paper, as a carrier medium, is used as a tool of the trade for
those who traffic in the said drug and that the blotter paper seems to be the
"carrier in choice" and that the vast number of cases will therefore do exactly
what the "Sentencing Scheme" was designed to do i.e. to punish more heavily,
those, who deal in larger amount of drugs.
9 Mr. Merchant further submits that a perusal of the Standing
Order dated 18th November 2019 provides that the quantity is shown in
Columns 5 and 6 of the table i.e. "small quantity" and "commercial quantity"
relating to the respective drug shown in column 2 and applies to the entire
"mixture" or any solution or any one or more narcotic drugs or psychotropic
substance of that particular drug in dosage form or isomers, esters, ethers and
salts of these drugs, including the salts of esters, ethers and isomers "wherever
existence of such substance is possible and not just its pure drug content." He
thus submits that the term "preparation" would not only include those
substances which are included in column 2 of the table, but even a mixture of
narcotic drugs and psychotropic substances as appearing in column 2 of the
SQ Pathan 11/53
wp-2077-2021.doc
table. He submits that there could be a case where the LSD with the blotter
paper is not swallowed, but the blotter paper is only used as a medium of
consumption i.e. by licking it, thus allowing the LSD to be absorbed on the
tongue and thereafter, by discarding the blotter paper. Thus, according to Mr.
Merchant, LSD on a blotter paper is not only capable of being confined to
swallowing, but is also capable of being separated from the drug by either
licking it or dipping it in liquid for consumption, and as such, it becomes all
the more imperative that the exact contents of the pure LSD drug is known,
so as to facilitate the application of the provisions of Section 21 of the NDPS
Act, qua small quantity, intermediate quantity or commercial quantity. He,
therefore, submits that only one mode of consumption of LSD i.e. by
swallowing the blotter paper, cannot be taken into account and hence, the
weight of the blotter paper would have to be excluded from consideration.
10 He further submits that the judgment of the Court of Appeal for
New South Wales in Finch (supra) would also not apply to the facts of the
present case, inasmuch as, there was identification of LSD both, in cardboard
SQ Pathan 12/53
wp-2077-2021.doc
tabs and in liquid and that there was actual evidence to show that the
cardboard tabs were swallowed, which is amiss, in the present case. He further
submits that in the present case, it is not the prosecution case that blotter
papers are swallowed as a matter of course, and that this is the only mode of
consumption. He submits that in the case of Finch (supra), there was
evidence of consumption by a user of swallowing the cardboard tabs and that
the same was recorded before the trial Court and consequently, the Court
arrived at a finding that the cardboard impregnated with LSD was an integral
part of the ingestion by the user of the drug and thus, "preparation" of a
substance within the meaning of Section 4 of the Drugs Misuse and Trafficking
Act 1985. He submits that in the present case, the charge-sheet does not show
a single witness claiming to have consumed LSD on a blotter paper by
swallowing the same and as such, in the present case, the blotter paper and the
weight thereof, cannot be and should not be treated as an integral part of
"preparation" of psychotropic substance i.e. LSD. He submits that merely
because India is a party to the Convention on Psychotropic Substances of the
United Nations, alongwith the other countries including USA and Australia,
SQ Pathan 13/53
wp-2077-2021.doc
does not mean that the Courts are bound by the judgments of the said Courts.
11 Mr. Merchant further submits that although the learned ASG
appearing in the Apex Court in Hira Singh's case (supra), had relied on
Chapman's case (supra), the Apex Court in Hira Singh (supra) had not
relied on Chapman's case (supra), much less, made any observation or
reference to the said judgment, whilst deciding Hira Singh's case (supra). Mr.
Merchant, learned counsel for the respondent No. 1 relied on two judgments
of this Court in the case of Hitesh Malhotra (supra) and Harsh Sharad
Meshram vs State of Maharashtra 7. He submits that in both these orders, this
Court has distinguished Hira Singh (supra) and has categorically held that
LSD blotter paper merely carries the drug and facilitates its consumption and
that the paper with LSD drops, as a whole, is neither "preparation" nor a
"mixture" within the meaning of the NDPS Act and that Hira Singh (supra)
will not apply, as the the paper containing LSD solution is not a mixture and
the blotter paper is not a neutral substance. Mr. Merchant submits that Hira
Singh (supra) will not apply to a LSD drug (adulterated or diluted) contained
7 Cri.BA/1671/2021 decided on 13.05.2021
SQ Pathan 14/53
wp-2077-2021.doc
on a blotter paper, as LSD contained on a blotter paper is neither a mixture,
nor a substance in a dosage form. He submits that the Karnataka High Court
in Rijesh Ravindran (supra) whilst dealing with a case relating to LSD, has
not discussed the method of testing LSD found on a blotter paper and/or
whether it amounts to a mixture or not or whether it constitutes a preparation
and therefore, no reliance can be placed on the said order.
12 Mr. Merchant submits that in order to frame appropriate charges
under Section 21 of the NDPS Act, it is necessary for the trial Court to know
whether the quantity is small quantity, intermediate or commercial quantity
and that, it is only the FSL report which would facilitate the purpose and
objective of the Standing Orders issued by the Central Government. He
submits that the FSL report should also be in consonance with the Standing
Order 1055 (E) dated 19th October 2001 and the Standing Order 2941 (E)
dated 18th November 2009, by which point No. 4 has been added in the note,
at the foot of the table. He submits that it was the duty of the FSL to record in
the FSL report the existence of substances such as isomers, esters, ethers and
SQ Pathan 15/53
wp-2077-2021.doc
salts of the narcotic drugs or psychotropic substance as listed in columns 2 to
4, so also, the qualitative analysis of that particular mixture or substance or any
solution of any one or more such narcotic drug or psychotropic substance of
that particular drug in dosage form or its isomers, ethers, etc. as listed in
columns 2 to 4. He submits that it is necessary to permit the FSL to conduct
quantitative and qualitative analysis of the substance. He submits that the
purpose of such quantification analysis is not to cause the identification or
purity of only the drug content in the sample, but also to identify which are
those salts, esters, isomers, ethers and neutral substance which are mixed with
the contraband in its pure form to become that dosage form, which has been
trafficked by the accused in the illicit market. He submits that the dosage form
means the pure drug together with its isomers, ethers, etc. and the
quantification thereof, will determine whether the accused deserves to be
charged for small quantity or intermediate or commercial quantity. He submits
that in the present case, it was the duty of the NCB to call for, and, the FSL to
provide and show the existence of the LSD on the blotter paper, which was
neither done by the NCB nor provided by the FSL. According to Mr.
SQ Pathan 16/53
wp-2077-2021.doc
Merchant, the same appears to have been done deliberately and willfully to
show that the alleged seizure of LSD from the respondent No. 1 falls well
within the ambit of Section 21(c) of the NDPS Act i.e. for commercial
quantity. He submits that in the present case, more than 30 accused have been
arrested and that save and except the present respondent No. 1, all the accused
have been charged with small quantity, pursuant to the contraband recovered
from each of them. He submits that on the basis of the recovery at the instance
of the respondent No. 1, the NCB intends to show that the case relates to
commercial quantity, by intentionally calculating the weight of the LSD, with
the blotter paper. He submits that the weight of the blotter paper allegedly
containing LSD, seized at the instance of the respondent No. 1 is around 0.62
gms, and as such, is above commercial quantity (the commercial quantity of
LSD being 0.1 gm as mentioned in Serial No. 133 of the table appended to the
Act). He submits that the prosecution, by taking the weight of the blotter
paper allegedly containing LSD, is trying to bring in its ambit, a case of
commercial quantity so as to apply charges under Sections 27(A) and 29 of the
NDPS Act, to the case in hand. He submits that the respondent No. 1 by
SQ Pathan 17/53
wp-2077-2021.doc
seeking further test i.e. seeking segregation of LSD from the blotter paper, is
himself taking a calculated risk, inasmuch as, if the fresh FSL report quantifies
the weight of the LSD in the seized blotter papers as commercial quantity, the
respondent No. 1 would have to necessarily face the consequence of having
been found in possession of commercial quantity of LSD and consequently, the
bar of Section 37 of the NDPS Act will apply. He submits that no prejudice
would be caused to the prosecution if such an exercise is undertaken i.e. of
sending the blotter papers allegedly containing LSD for fresh analysis for
weighing the LSD sans the blotter papers. He submits that a similar exercise
i.e. giving quantity of LSD and blotter paper separately, is done by other
Forensic Science Labs, in more than one cases and as such there is no reason
why the same process or exercise cannot be followed by the NCB, as done by
other agencies like the State Police (Anti-Narcotic Cell). Learned counsel
relied on a copy of a report of the FSL at Kalina, wherein, the quantification
of the contents of the LSD in the blotter paper, was separately recorded.
13 Mr. Merchant further submits that another reason for calling for
SQ Pathan 18/53
wp-2077-2021.doc
a fresh analysis report, both, qualitative and quantitative is, that though the
seizure panchanama shows that 32 blotter papers and 10 strips of papers
purportedly containing LSD were seized i.e. a total of 42 blotter papers
weighing 0.62 gms, however, the FSL report shows that what was sent to the
FSL were 31 blotter papers and the weight of LSD with the 31 blotter papers
was also stated to be 0.62 gms. He submits that what happened to the 10
strips of papers containing LSD, is not known. He further submits that it is
impossible that the weight of 32 blotter papers together with the 10 strips
allegedly containing LSD (0.62 gms) is the same, as disclosed in the FSL report
to whom only 31 blotter papers were sent i.e. 0.62 gms. He submits that the
same is highly improbable and that there is no explanation forthcoming from
the NCB with respect to the said discrepancy. He further submits that neither
is there any mention in the FSL report, as to whether each of the 31 blotter
papers were subjected to an individual test, before concluding that the 31 blot
papers contained LSD. He submits that the seizure panchanama also shows
failure on the part of the Investigating Officer, NCB to conduct a test, with a
Field Testing Kit, on one or more of the different size blotter papers so seized,
SQ Pathan 19/53
wp-2077-2021.doc
before arriving at a conclusion or before having reason to believe, that all the
blotter papers contained drops of LSD. He submits that no testing was done
with the Field Testing Kit on one or any of the blotter papers to strengthen and
fortify the conclusion of finding of LSD, so as to reasonably believe, that the
blotter papers carried LSD. He submits that the aforesaid discrepancies warrant
sending the blotter papers for re-testing, for conducting an analysis, by
separating the LSD from the 31 blotter papers of different sizes.
DISCUSSION :
14 Perused the papers. As noted above, the short question posed for
consideration in the present petition is, whether the blotter paper forms an
integral part of the LSD Drug when put on a blotter paper for consumption ?
15 At the outset, it is important to understand what is LSD? LSD
was first synthesized in 1938, in Basel, Switzerland, while looking for a blood
stimulant. It is an extremely potent hallucinogen. It is synthetically made
from lysergic acid, which is found in ergot, a fungus that is grown on rye and
SQ Pathan 20/53
wp-2077-2021.doc
other grains. It is so potent that its doses tend to be in microgram (mcg)
range. Its effects, often called a 'trip' can be stimulating, pleasurable and mind
altering or it can lead to an unpleasant, sometimes terrifying experience called
'a bad trip'. A common/street names for LSD are acid, battery acid, doses,
dots, trips, yellow, windowpane, tab, as well as names that reflect the design
on sheets of blotter paper. In USA, LSD is illegal and is classified by the Drug
Enforcement Agency (DEA) as a Schedule 1 drug, which shows that LSD has
a high potential for abuse. LSD is often added to absorbent paper, such as
'blotter paper'. The paper can be divided into small squares, 'tabs' with each
square representing one dose called a 'hit'. Unlike toilet paper or even tissue
paper, blotter paper appears to be made out of an extra-absorbent material and
generally includes ingredients such as rice, cotton and even flax seed. It is
impossible to visually identify the strength or type of drug when buying.
16 Drug active in microgram range, most notably 'LSD', is
commonly distributed illicitly on blotter paper. A liquid solution of the drug is
applied to the blotter paper, which commonly is perforated into individual
SQ Pathan 21/53
wp-2077-2021.doc
doses. Blotter as a delivery method allows for easy dosing of potent substances
and easy sublingual administration of drugs.
17 Hallucinogenic drugs, such as LSD, cause a person to see vivid
images, 'hear' sounds and 'feel' sensation that seem real but are not. LSD is
most widely used Hallucinogenic drug. LSD is also called acid, blotter or dots.
It is odorless and colorless and has a slightly bitter taste. It is one of the most
powerful mood-changing chemicals. As noted aforesaid, the other term for
LSD sold on the streets is also tablets, acid, doses, etc. LSD is sold on the
streets in powder, tablets, capsules or in liquid form. LSD is often added to
absorbent paper, such as blotter paper. As noted above, the paper is divided
into small decorated squares (or tabs) with each square representing one dose
called a 'hit'. LSD can also be found in thin squares of gelatin. LSD is taken
by mouth and swallowed or also licked off blotter paper.
18 Albert Hofmann (11th January 1906 - 29th April 2008) was a
Swiss Scientist who was the first person to synthesize, ingest and learn of the
SQ Pathan 22/53
wp-2077-2021.doc
psychedelic effects of LSD, a drug which came to be synonymous with the 50's
and 60's beatnite and 50th generation, including in the USA and worldwide.
Initially, LSD was legal in USA until it became illegal in California in 1966,
after which other states and countries soon followed. It appears that the
standard dose of LSD appears to be somewhere around 30-150 microgram
(mcg). A single 'hit' on a blotter paper contains somewhere LSD in this range.
Without chemical testing, it's impossible to know how much LSD is there on
the blotter paper.
19 The United Nations Convention on Psychotropic Substances
adopted in 1971, requires the signing parties (countries) to prohibit LSD.
Hence, all countries who are parties to the said Convention, including USA,
Australia, New Zealand and most of Europe as well as India, LSD is illegal.
20 Research shows that LSD when consumed is quickly absorbed
from the stomach and intestines and effects are experienced approximately
within 30 to 60 minutes. The physical effects of LSD include dilated pupils,
higher body temperature, increased heart rate and blood pressure, sweating,
SQ Pathan 23/53
wp-2077-2021.doc
loss of appetite, sleeplessness, dry mouth and tremors. It appears that within
an hour of ingestion of LSD, psychic effects occur which causes a distortion in
sensory perception. Although, all body's senses are affected by LSD, what is
affected the most, is vision. It appears that the sensor input of an LSD user
can become so distorted, that they may 'see' music or 'hear' color. LSD users
can experience or exhibit dramatic mood swings or extreme happiness to deep
depression. If it is a 'bad trip', it can result in acute panic reactions and users
feel they are in extreme danger. These scary sensations may last a few minutes
or several hours. The user may experience confusion, anxiety, panic, attacks,
delusions, impaired time perception, distorted perception of the size and shape
of objects, movements, color, sounds and touch, visual hallucinations,
suspiciousness, a feeling of helplessness, a loss of control, etc. Large dose of
LSD may even produce convulsion and coma, as well as heart and lung failure.
The psychological side effects apart from physical side effects commonly
associated with an LSD trip is synesthesia or sensory distortion; hallucinations
or distortions to the way you see things around you; paranoia, euphoria etc.
21 Thus, it is evident from the aforesaid, that LSD or Acid as it is
SQ Pathan 24/53
wp-2077-2021.doc
commonly known, is a potent, long-lasting psychoactive substance.
22 It would now be apposite to advert to, and highlight the various
judgments/orders passed by various Courts including the judgment of the Apex
Court in Hira Singh (supra), whilst considering the question posed before
this Court.
23 Learned ASG placed reliance on the judgment of the U.S.
Supreme Court in the case of Richard Chapman (supra) and the judgment of
the Court of Appeal for New South Wales in Finch (supra), in support of his
submission, that the weight of the blotter paper containing LSD is to be taken
into consideration and not only the weight of the pure LSD. The U.S.
Supreme Court in Chapman's case (supra), was called upon to decide a case
where a mandatory minimum sentence of 5 years for the offence of
distributing more than 1 gm of a "mixture or substance containing a detectable
amount of LSD". The U.S. Supreme Court in the said case held that it is the
weight of the blotter paper containing LSD, and not the weight of the pure
LSD, which determines the eligibility for the minimum sentence. In the said
SQ Pathan 25/53
wp-2077-2021.doc
case, three persons were convicted for selling 10 sheets (thousand doses) of
blotter papers containing LSD, in violation of Section 841(a) of Title 21 of the
United States Code (`U.S.C') and were sentenced to a mandatory minimum
sentence of 5 years required by 21 U.S.C [Section 841(b)(1)(B)(v)] for
distributing more than one gram of a mixture or substance containing a
detectable amount of LSD. The entire 5.7 gms was also used to determine the
base offence level under the United States Sentencing Commission Guidelines
Manual 1990. The petitioner before the U.S. Supreme Court argued that the
blotter paper was only a carrier medium and that its weight should not be
included in the weight of the drug for sentencing an accused. Alternatively,
they argued that if the Statute and Sentencing Guidelines were construed so as
to require inclusion of the blotter paper or other carrier medium when
calculating the weight of the drug, this would violate the right to equal
protection incorporated in the Due Process Clause of the Fifth Amendment.
The Court of Appeals for the Seventh Circuit held that the weight of the
blotter paper or other carrier should be included in the weight of the "mixture
or substance containing the detectable amount" of LSD. Under Section 841
SQ Pathan 26/53
wp-2077-2021.doc
(b)(1)(A)(v), a mandatory minimum sentence of 10 years imprisonment is
provided for violation of sub-section (a) involving 10 grams or more of a
mixture or substance containing a detectable amount of LSD. According to
the Sentencing Commission, the LSD in an average dose, weighs 0.05
milligrams and that there are, therefore, 20,000 pure doses in a gram. The pure
dose is such an infinitesimal amount that it must be sold to retail customers in
a "carrier". It was observed that pure LSD is dissolved in a solvent such as
alcohol and either the solution is sprayed on paper or gelatin, or paper is
dipped in the solution; that the solvent evaporates, leaving minute amounts of
LSD trapped in the paper or gel; then the paper or gel is cut into "one-dose"
squares and sold by the dose; users either swallow the squares, lick them until
the drug is released, or drop them into a beverage, thereby releasing the drug;
that although gelatin and paper are light, they weigh much more than the
LSD. It was argued by the accused therein; (i) that the weight of the carrier
should not be included when computing the appropriate sentence for LSD
distribution, for the words "mixture or substance", were ambiguous, and
should not be construed to reach an illogical result; (ii) because LSD is sold by
SQ Pathan 27/53
wp-2077-2021.doc
dose, rather than by weight, the weight of the LSD carrier should not be
included when determining the accused's sentence because it is irrelevant to
culpability; (iii) that including the weight of the carrier may lead to anomalous
results, for example, a major wholesaler caught with 19,999 doses of pure LSD
would not be subject to the 5-year mandatory minimum sentence, while a
minor pusher with 200 doses on blotter paper, or even one dose in a sugar
cube, would be subject to the mandatory minimum sentence; (iv) that the
weight of the carrier should be excluded and the weight of the pure LSD
should be determined; and (v) that only the weight of the LSD should be used
to set the appropriate sentence. The U.S. Supreme Court observed that the
Statute referred to a "mixture or substance containing a detectable amount"
and that as long as it contains a detectable amount, the entire mixture or
substance is to be weighed when calculating the sentence. In paras 14 and 15
of Chapman's case (supra) , it is observed as under:
"14. We think that the blotter paper used in this case, and
blotter paper customarily used to distribute LSD, is a "mixture
or substance containing a detectable amount" of LSD. In so
holding, we confirm the unanimous conclusion of the Courts of
SQ Pathan 28/53
wp-2077-2021.doc
Appeals that have addressed the issue. Neither the statute nor
the Sentencing Guidelines define the terms "mixture" and
"substance," nor do they have any established common law
meaning. Those terms, therefore, must be given their ordinary
meaning. See Moskal v. United States, 498 U. S. 103, 498 U. S.
108 (1990). A "mixture" is defined to include a portion of
matter consisting of two or more components that do not bear
a fixed proportion to one another and that, however thoroughly
commingled, are regarded as retaining a separate existence."
Webster's Third New International Dictionary 1449 (1986). A
"mixture" may also consist of two substances blended together
so that the particles of one are diffused among the particles of
the other. 9 Oxford English Dictionary 921 (2d ed.1989). LSD
is applied to blotter paper in a solvent, which is absorbed into
the paper and ultimately evaporates. After the solvent
evaporates, the LSD is left behind in a form that can be said to
"mix" with the paper. The LSD crystals are inside of the paper,
so that they are commingled with it, but the LSD does not
chemically combine with the paper. Thus, it retains a separate
existence and can be released by dropping the paper into a
liquid, or by swallowing the paper itself. The LSD is diffused
among the fibres of the paper. Like heroin or cocaine mixed
with cutting agents, the LSD cannot be distinguished from the
blotter paper, nor easily separated from it. Like cutting agents
used with other drugs that are ingested, the blotter paper, gel, or
sugar cube carrying LSD can be and often is ingested with the
drug.
15. Petitioner argues that the terms "mixture" or "substance"
SQ Pathan 29/53
wp-2077-2021.doc
cannot be given their dictionary meaning, because then the
clause could be interpreted to include carriers like a glass vial or
an automobile in which the drugs are being transported, thus
making the phrase nonsensical. But such nonsense is not the
necessary result of giving the term "mixture" its dictionary
meaning. The term does not include LSD in a bottle, or LSD in
a car, because the drug is easily distinguished from, and
separated from, such a "container." The drug is clearly not
mixed with a glass vial or automobile; nor has the drug
chemically bonded with the vial or car. It may be true that the
weights of containers and packaging materials generally are not
included in determining a sentence for drug distribution, but
that is because those items are also clearly not mixed or
otherwise combined with the drug."
24 The US Supreme Court further observed with respect to LSD,
that, although LSD is not sold by weight, but by dose, and that a carrier
medium is not, strictly speaking, used to "dilute" the drug, that medium is
used to facilitate the distribution of the drug. It was further observed that the
blotter paper makes LSD easier to transport, store, conceal, and sell and that, it
is a tool of the trade for those who traffic in the drug, and therefore, it was
rational to set penalties based on such chosen tool. It is further observed that
while hypothetical cases can be imagined involving very heavy carriers and very
SQ Pathan 30/53
wp-2077-2021.doc
little LSD, however, those cases are of no import in considering a claim by
persons such as the accused, who have used the standard LSD carrier and that
the blotter paper appears to be the carrier of choice, and the vast majority of
cases will therefore do exactly what the Sentencing Scheme was designed to do
- punish more heavily those who deal in larger amounts of drugs.
25 Similarly, the Court of Appeal for New South Wales in Finch
(supra), was called upon to consider whether the conviction of the appellant
therein was justified. One of the grounds raised by the accused therein, was
that neither the cardboard nor the liquid containing the LSD should have been
included in the overall weight of the LSD. The Court, whilst considering the
said ground, in para 117, considered the Section which provides for
"Admixtures". The Court, after considering the word substance and the
evidence that had come on record to show that the cardboard containing LSD
was swallowed, observed, that the evidence disclosed that the cardboard squares
were ingested with LSD, and, that there was evidence about the ingestion of
cardboard tabs by end users, and as such, held that the cardboard impregnated
with LSD clearly was a "preparation" or an other substance within the
SQ Pathan 31/53
wp-2077-2021.doc
meaning of Section 4 of DMT. It was further observed that having regard to
the evidence that users take the drug by ingesting the cardboard with LSD, it
is clear that the cardboard is an "other substance containing proportion of the
prohibited drug" and the weight of the cardboard is to be included in
calculating the relevant weight for the purposes of the traffickable and large
commercial thresholds contained in the DMT Act. It was urged before the
said Court that the evidence of how LSD was taken by a user was different
from the evidence in the case therein i.e. the LSD in that form was ingested by
placing a cardboard tab under the tongue and once the LSD had been ingested,
the cardboard was spitted out. In these circumstances, it was submitted that the
cardboard tab was analogous to a syringe or other delivery mechanism and
could not be taken into account in calculating the weight of an 'admixture' as
defined under the DMT Act. The Court of Appeal for New South Wales
further observed in para 142 of the judgment as under:
"142. On the evidence here, the cardboard was designed to
be swallowed and, accordingly, the cardboard impregnated with
LSD was ingested by a user. The cardboard was not analogous
to a container or syringe from which the user extracted a drug.
SQ Pathan 32/53
wp-2077-2021.doc
A much closer analogy would be the non-drug content of a
film quoting or a gelatin capsule used in the production of
lawful drugs in the way described by the full Federal Court in
Sigma Pharmaceuticals (Australia) Pty. Ltd. vs. Wyeth (2011)
119 IPR 194. That film coating or gelatin capsule is an
integral part of the ingestion by the user of the drug. In the
same way, here, the cardboard impregnated with LSD was an
integral part of the ingestion by the user of the drug and thus, a
"preparation" or a "substance" within the meaning of Section
4."
26 No doubt, in Hira Singh's case (supra), the learned Additional
Solicitor General of India had relied on Richard Chapman's case (supra), in
support of his submission, that the quantity of the neutral substance is not to
be excluded, and, is infact, to be taken into consideration alongwith the actual
content of the weight of the offending drug, however, there is no reference to
Chapman's judgment (supra) , whilst answering the reference. It is pertinent
to note, that the Apex Court in Hira Singh (supra), was called upon to
consider five questions, as the view taken in the case of E. Micheal Raj vs.
Intelligence Officer, Narcotic Control Bureau 8, was not agreed upon, that
when any narcotic drug or psychotropic substance is found mixed with one or
8 (2008) 5 SCC 161
SQ Pathan 33/53
wp-2077-2021.doc
more neutral substance/s, for the purpose of imposition of punishment, it is
the content of the narcotic drug or psychotropic substance which shall be taken
into consideration. Accordingly, the following questions were referred to the
three Judge Bench :
"(a) Whether the decision of this Court in E. Micheal Raj (supra)
requires reconsideration having omitted to take note of entry no.
239 and Note 2 (two) of the notification dated 19.10.2001 as also
the interplay of the other provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short "the NDPS Act")
with Section 21?
(b) Does the impugned notification issued by the Central
Government entail in redefining the parameters for constituting
an offence and more particularly for awarding punishment?
(c) Does the NDPS Act permit the Central Government to resort
to such dispensation?
(d) Does the NDPS Act envisage that the mixture of narcotic
drug and seized material/substance should be considered as a
preparation in totality or on the basis of the actual drug
content of the specified narcotic drug?
(e) Whether Section 21 of the NDPS Act is a stand along
provision or intrinsically linked to the other provisions dealing
with "manufactured drug" and "preparation" containing any
manufactured drug?"
(Emphasis supplied)
SQ Pathan 34/53
wp-2077-2021.doc
27 The Apex Court, after considering the object and the legislative
intent behind enacting the NDPS Act and the Amendment Act No. 16 of
2014, observed that it was never the intention of the legislature to exclude the
quantity of neutral substance and to consider only the actual content by weight
of the offending drug, for the purpose of deciding whether it should constitute
small quantity or commercial quantity. The discussion with respect to the
same is elucidated from paras 8.2 to 8.5 in Hira Singh (supra) and the same is
reproduced hereinunder:
"8.2 Therefore, considering the statement of objects and reasons
and the preamble of the NDPS Act and the relevant provisions of
the NDPS Act, it seems that it was never the intention of the
legislature to exclude the quantity of neutral substance and to
consider only the actual content by weight of offending drug
which is relevant for the purpose of determining whether it would
constitute small quantity or commercial quantity. Right from sub-
clause (viia) and (xxiiia) of Section 2 of NDPS Act emphasis is on
Narcotic and Drug or Psychotropic Substance (Sections 21, 22,
23, 24, 27 and 43). Even in the table attached to the Notification
dated 19.10.2001, column no. 2 is with respect to name of
Narcotic Drug and Psychotropic Substance and column nos. 5
and 6 are with respect to "small quantity and commercial
quantity". Note 2 of the Notification dated 19.10.2001
specifically provides that quantity shown against the respective
SQ Pathan 35/53
wp-2077-2021.doc
drugs listed in the table also apply to the preparations of the drug
and the preparations of substances of note 1. As per Note 1, the
small quantity and commercial quantity given against the
respective drugs listed in the table apply to isomers ..., whenever
existence of such substance is possible. Therefore, for the
determination of "small quantity or the commercial quantity"
with respect to Narcotic Drugs and Psychotropic Substance
mentioned in column no.2 the quantity mentioned in the clauses
5 and 6 are required to be taken into consideration. However, in
the case of mixture of the narcotic drugs / psychotropic drugs
mentioned in column no.2 and any mixture or preparation that of
with or without the neutral material of any of the drugs
mentioned in table, lesser of the small quantity between the
quantities given against the respective Narcotic Drugs or
Psychotropic Substances forming part of mixture and lesser of
commercial quantity between the quantities given against the
respective narcotic drugs or psychotropic substance forming part
of the mixture is to be taken into consideration. As per example,
mixture of 100 gm is seized and the mixture is consisting of two
different Narcotic Drugs and Psychotropic Substance with neutral
material, one drug is heroin and another is methadone, lesser of
commercial quantity between the quantities given against the
aforesaid two respective Narcotic Drugs and Psychotropic
Substance is required to be considered. For the purpose of
determination of the "small quantity or commercial
quantity", in case of entry 239 the entire weight of the
mixture / drug by whatever named called weight of neutral
material is also required to be considered subject to what is
stated hereinabove. If the view taken by this Court in the case
SQ Pathan 36/53
wp-2077-2021.doc
of E. Micheal Raj (Supra) is accepted, in that case, it would
be adding something to the relevant provisions of the statute
which is not there and/or it was never intended by the
legislature.
8.3 At this stage, it is required to be noted that illicit drugs are
seldom sold in a pure form. They are almost always adulterated or
cut with other substance. Caffeine is mixed with heroin, it causes
that heroin to vaporize at a lower rate. That could allow users to
take the drug faster and get a big punch sooner. Aspirin, crushed
tablets, they could have enough powder to amend reversal doses
of drugs. Take example of heroin. It is known as powerful and
illegal street drug and opiate derived from morphine. This drug
can easily be "cut" with a variety of different substances. This
means that drug dealer will add other drugs or non -intoxicating
substances to the drug so that they can sell more of it at a lesser
expense to themselves. Brown-sugar / smack is usually made
available in power form. The substances is only about 20%
heroin. The heroin is mixed with other substances like chalk
powder, zinc oxide, because of these, impurities in the drug,
brown-sugar is cheaper but more dangerous. These are only few
examples to show and demonstrate that even mixture of narcotic
drugs or psychotropic substance is more dangerous. Therefore,
what is harmful or injurious is the entire mixture/tablets with
neutral substance and Narcotic Drugs or Psychotropic
Substances. Therefore, if it is accepted that it is only the
actual content by weight of offending drug which is relevant
for the purpose of determining whether it would constitute
small quantity or commercial quantity, in that case, the object
and purpose of enactment of NDPS Act would be frustrated.
SQ Pathan 37/53
wp-2077-2021.doc
There may be few punishment for "commercial quantity".
Certainly that would not have been the intention of the
legislature.
8.4. Even considering the definition of "manufacture",
"manufactured drug" and the "preparation" conjointly, the
total weight of such "manufactured drug" or "preparation",
including the neutral material is required to be considered
while determining small quantity or commercial quantity. If
it is interpreted in such a manner, then and then only, the
objects and purpose of NDPS Act would be achieved. Any
other intention to defeat the object and purpose of enactment
of NDPS Act viz. to Act is deterrent.
8.5. The problem of drug addicts is international and the mafia is
working throughout the world. It is a crime against the society
and it has to be dealt with iron hands. Use of drugs by the young
people in India has increased. The drugs are being used for
weakening of the nation. During the British regime control was
kept on the traffic of dangerous drugs by enforcing the Opium
Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act,
1930. However, with the passage of time and the development in
the field of illicit drug traffic and during abuse at national and
international level, many deficiencies in the existing laws have
come to notice. Therefore, in order to remove such deficiencies
and difficulties, there was urgent need for the enactment of a
comprehensive legislation on Narcotic Drugs and Psychotropic
Substances, which led to enactment of NDPS Act. As observed
herein above, the Act is a special law and has a laudable purpose
SQ Pathan 38/53
wp-2077-2021.doc
to serve and is intended to combat the menace otherwise bent
upon destroying the public health and national health. The guilty
must be in and the innocent ones must be out. The punishment
part in drug trafficking is an important one but its preventive part
is more important. Therefore, prevention of illicit traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 came to
be introduced. The aim was to prevent illicit traffic rather than
punish after the offence was committed. Therefore, the Courts
will have to safeguard the life and liberty of the innocent persons.
Therefore, the provisions of NDPS Act are required to be
interpreted keeping in mind the object and purpose of NDPS
Act; impact on the society as a whole and the Act is required
to be interpreted literally and not liberally which may
ultimately frustrate the object, purpose and preamble of the
Act. Therefore, the interpretation of the relevant provisions of
the statute canvassed on behalf of the accused and the
intervener that quantity of neutral substance (s) is not to be
taken into consideration and it is only actual content of the
weight of the offending drug, which is relevant for the
purpose of determining whether it would constitute "small
quantity or commercial quantity", cannot be accepted".
(Emphasis supplied).
28 The Apex Court, accordingly answered the reference in Para 10 of
the said Judgment, as under :
"10. In view of the above and for the reasons stated above,
Reference is answered as under:
(I) The decision of this Court in the case of E. Micheal Raj
SQ Pathan 39/53
wp-2077-2021.doc
(Supra) taking the view that in the mixture of narcotic drugs
or psychotropic substance with one or more neutral
substance(s), the quantity of the neutral substance(s) is not to
be taken into consideration while determining the small
quantity or commercial quantity of a narcotic drug or
psychotropic substance and only the actual content by weight
of the offending narcotic drug which is relevant for the
purpose of determining whether it would constitute small
quantity or commercial quantity, is not a good law;
(II) In case of seizure of mixture of Narcotic Drugs or
Psychotropic Substances with one or more neutral
substance(s), the quantity of neutral substance(s) is not to
be excluded and to be taken into consideration along with
actual content by weight of the offending drug, while
determining the "small or commercial quantity" of the
Narcotic Drugs or Psychotropic Substances;
(III) Section 21 of the NDPS Act is not stand-alone
provision and must be construed along with other provisions
in the statute including provisions in the NDPS Act
including Notification No.S.O.2942(E) dated 18.11.2009
and Notification S.O 1055(E) dated 19.10.2001;
(IV) Challenge to Notification dated 18.11.2009
adding "Note 4" to the Notification dated 19.10.2001, fails
and it is observed and held that the same is not ultra vires to
the Scheme and the relevant provisions of the NDPS Act.
Consequently, writ petitions and Civil Appeal No.
5218/2017 challenging the aforesaid notification stand
dismissed."
(Emphasis supplied)
SQ Pathan 40/53
wp-2077-2021.doc
29 Although, the drug which was considered by the Apex Court in
Hira Singh (supra) was "heroin", the principle underlying the said conclusion
will have to be considered and borne in mind. Infact, the submissions
advanced by the learned Counsel for the Respondent No.1 with respect to
'Note 4' in the Notification dated 18/11/2009 and the Standing Order dated
19/10/2001, have been dealt with by the Apex Court in Hira Singh (supra)
and, hence need not be adverted to again.
30 LSD put on a blotter paper, is capable of being swallowed, after
placing it on the tongue. It is thus evident that the blotter paper is capable of
being swallowed and is used as one of the methods for consuming LSD.
Merely because the said blotter paper can be licked or put in a glass of water,
does not necessarily mean that the blotter paper has to be excluded whilst
determining the LSD on the blotter paper. Take for example, a capsule
containing a drug or a psychotropic substance. The said capsule is capable of
being opened and its contents, can either be consumed directly or added to any
other mixture/swallowed with the cover. The fact remains that if a drug is put
SQ Pathan 41/53
wp-2077-2021.doc
in a capsule, the same will have to be weighed as a whole. It is important to
bear in mind the legislative intent, the object and reasons, and, the preamble of
the NDPS Act, whilst considering, whether LSD is to be weighed sans the
blotter paper. As noted in Hira Singh (supra), it was never the intention of
the legislature to exclude the quantity of the neutral substance and to consider
only the actual content by weight of the offending drug. It is also pertinent to
note that illicit drugs are seldom sold in a pure form. They are always
adulterated or cut with other substance or put in a gelatin or blotter paper, as
in the present case. Heroin, for example, is capable of being mixed with other
substances like chalk powder, zinc oxide, because of these, impurities in the
drug, brown-sugar is cheaper but more dangerous. The blotter paper
impregnated or ingested with LSD is, in a sense, a dose. The blotter paper is
made out of an extra-absorbent material and generally includes ingredients
such as rice, cotton and even flax seed, thus, making it edible and as such, a
substance in a dosage form/a mixture for consumption. It is thus evident, that
a blotter paper, a carrier material, ingested with LSD, forms an integral part of
the ingestion by the user of the drug and thus, constitutes preparation of the
SQ Pathan 42/53
wp-2077-2021.doc
psychotropic substance i.e. LSD, which is capable of being consumed, and as
such, forms a substance in a dosage form or a mixture. Infact, at the first blush,
one may ask 'how paper' ?, but once it is accepted that a blotter paper
ingested/impregnated with LSD, is used as a medium of consumption, the
same will squarely fall within the definition of the term 'preparation', as
defined in Section 2 (xx) of the NDPS Act. Like cutting agents used with
other drugs that are ingested, the blotter paper, gelatine capsules or sugar cubes
carrying LSD can be and often is ingested with the said drug. The object of the
NDPS Act is to deal with the street weight of the drug in the diluted form in
which they are sold and not only the weight of the active component. Thus,
having regard to the dictum of the Apex Court in Hira Singh (supra), and the
legislative intent of the NDPS Act, the blotter paper impregnated or ingested
with LSD will have to be considered as a whole, whilst determining whether
the quantity is a small or commercial quantity.
31 In Rijesh Ravindran (supra), the Karnataka High Court, whilst
considering the bail application of the accused therein, relying on the
judgment of the Apex Court in Hira Singh (supra) took into consideration
SQ Pathan 43/53
wp-2077-2021.doc
the 180 blots of LSD seized from the possession of the accused therein and
found that the same was commercial quantity.
32 It is pertinent to note, that the Order impugned in this Petition,
has been passed relying on the Order passed by this Court in Hitesh Malhotra
(supra). This Court, in Hitesh Malhotra (supra), whilst considering the
bail application of the applicant therein, considered only the weight of the
LSD drug sans the blotter paper. In the said case, the FSL report had given
quantitative findings with respect to the LSD found on the blotter paper as
well as the weight on the blotter papers. In the said case, LSD was found in the
form of drops, dried on 23 pieces of papers. The total weight of 10 pieces of
papers containing LSD drops found on the person of the accused was 140
milligrams, however, 13 pieces of papers containing drops of LSD solution
allegedly found and recovered from the applicant's house, the weight on the
same was not disclosed in the panchanama nor found in the charge-sheet,
however, the Chemical Analyser's report showed that the net weight of the
drops of the LSD solution found on the 23 papers was 0.4128 milligram,
which is less than the commercial quantity i.e. 0.1 gm. This Court after
SQ Pathan 44/53
wp-2077-2021.doc
considering the judgment of the Apex Court in the case of Hira Singh
(supra), observed in paras 8 and 9, 9 as under:
"8. I have perused the First Information Report, Recovery
Panchanamas and Chemical Analyser's report. At the outset, it
may be stated that the most common form of LSD is drop of
LSD solution dried onto piece of paper or gelatin sheet, pieces of
blotting papers which releases the drop when
swallowed/consumed. In this case, drug was found in the form
of drops dried onto 23 pieces of papers. Thus, process of drying
LSD solution on a piece of paper, merely facilitates consumption
of drug. This process neither changes the substance of the drug
or its chemical composition. It is argued by the State, that since
dried LSD drops of LSD solution, cannot be segregated or
separated from the papers, it amounts to a 'mixture' and therefore
the weight of the paper is to be counted with 'LSD dots' for
determining the quantity of drug which was more than 0.1
gram. The learned APP relies on Entry-239 of the Table and
Footnote-(4) appended thereto of the NDPS Act. Entry No.239
and Footnote-(4) reads as under :
239. Any mixture or preparation that of with or
without a neutral material, of any of the above drugs.
Lesser of the Small quantity between the quantities
given against the respective narcotic drugs or
psychotropic substances mentioned above forming part
of the mixture.
SQ Pathan 45/53
wp-2077-2021.doc
Lesser of the Commercial quantity between the
quantities given against the respective narcotic drugs or
psychotropic substances mentioned above forming part
of the mixture."
"4. The quantities shown in column 5 and column
6 of the Table relating to the respective drugs shown in
column 2 shall apply to the entire mixture or any
solution or any one or more narcotic drugs or
psychotropic substances of that particular drug in
dosage form or isomers, esters, ethers and salts of these
drugs, including salts of esters, ethers and isomers,
wherever existence of such substance is possible and not
just its pure drug content."
9. In my view, though after swallowing piece of paper,
which causes release of drug but since that paper only carries drug
and facilitates its consumption, the paper with LSD drops, as a
whole, is neither "preparation", within the meaning of Section
2(xx), nor a "mixture" within the meaning of of the NDPS Act.
So far as the judgment of the Hon'ble Apex Court in the case of
Hira Singh (supra) is concerned, issue therein was, whether
mixture of narcotic drug or psychotropic substances with one or
more neutral substances, quantity of neutral substances can be
excluded while determining the small or commercial quantity of
narcotic drug and psychotropic substances. However herein, the
papers containing dried LSD drops of LSD solution, not being a
mixture, and the paper being not a neutral substance, judgment
SQ Pathan 46/53
wp-2077-2021.doc
of the Apex Court, has no application to the facts of this case.
9. The learned Judge, as it appears from the impugned
order, has accounted weight of papers "while calculating and
determining quantity of the LSD as a "commercial quantity". In
addition, while holding quantity of charas recovered from the
applicant was 'commercial quantity', is equally incorrect because
charas allegedly recovered from the applicant was 970 gms i.e.
less than 1 kg."
33 This Court observed that the trial Court had, whilst rejecting the
bail application of the accused therein, accounted for the weight of papers
while calculating and determining the quantity of the LSD as commercial
quantity. This Court observed that the findings of the trial Court that weight
of the paper containing dried LSD drops of LSD solution is required to be
accounted for while determining its quantity, whether small or otherwise, is
incorrect. This Court took into consideration the Chemical Analyser's report
which showed quantity of LSD drops solution was 0.4128 milligram, which
was below 0.1 gm of commercial quantity and as such enlarged the accused on
bail by observing that the rigors of Section 37 of the NDPS Act will not apply.
SQ Pathan 47/53
wp-2077-2021.doc
34 Another learned Single Judge of this Court in Harsh Meshram
(supra), whilst deciding the bail application of the applicant therein, took a
similar view, as taken in Hitesh Malhotra (supra) .
35 Having regard to the findings of the Apex Court in Hira Singh
(Supra), the object and legislative intent behind enacting the NDPS Act and
the discussion as stated aforesaid, I am of the view that the blotter paper forms
an integral part of the LSD, when put on a blotter paper for consumption and,
as such, the weight of the blotter paper containing LSD will have to be
considered i.e. actual weight, for the purpose of determining small or
commercial quantity of the offending drug. This Court, in Hitesh Malhotra
(Supra) and Harsh Meshram (supra) has not considered the aforesaid and
hence, the said orders cannot be said to have any binding effect.
36 Thus, reliance placed by the learned Special Judge (NDPS Court)
on the order passed in Hitesh Malhotra's case, for sending the samples for
testing, cannot be accepted, for the reasons stated aforesaid. Accordingly, the
impugned order, directing the FSL, Gujarat to weigh the LSD sans the blotter
SQ Pathan 48/53
wp-2077-2021.doc
paper, stands quashed and set aside. However, for the reasons stated hereunder,
it is necessary to send the samples again to the FSL for testing.
37 As far as the submission of the learned counsel for the respondent
No. 1, that in the facts, having regard to discrepancies in the weight, and the
manner of testing done, it is necessary to test the 31 blotter papers allegedly
containing LSD, there is some substance in the same. A perusal of the
panchanama dated 6th September 2020 with respect to the seizure of the
contraband from the house of the respondent No. 1 shows that apart from
other contraband drugs, i.e. ganja and charas, LSD was also seized. The
panchanama reveals that in the search, one small tin box was also found in a
white coloured laptop bag; that word "ALTOIDS" was printed on the box;
that when the said box was opened, blots in yellow, grey and light blue colour
in small pieces were found; that when the Investigating Officer asked the
Respondent No. 1 about the blot papers in the tin box, Respondent No.1
allegedly replied that LSD blot papers were kept in the box for sale. Thereafter,
the Investigating Officer counted the total blots in the tin-box. It was found
SQ Pathan 49/53
wp-2077-2021.doc
that there were 32 complete blot papers and 10 pieces of blot papers in pieces,
in the box. It is stated that the Investigating Officer put all the 32 + 10 pieces
of blots purported to contain LSD, weighing about 0.62 grams, in a small zip-
locked transparent polythene packet and weighed the same. The purported
LSD seized was marked as "QS1". The total weight was found to be 1.72 gms,
whereas the net weight of the blot papers purported to contain LSD i.e. 32
blots + 10 pieces of blot paper, was stated to be 0.62 gm. The said polythene
pouch was then heat sealed and put in a brown colour envelope and marked as
"L". Admittedly, the said blot papers were not tested with any Field Testing Kit
and hence, in the panchanama, it is stated to be blot papers 'purported to
contain LSD'. Thereafter, the said articles were sent to the Director of the FSL
at Gandhinagar, Gujarat, by the NCB, Mumbai zone, vide letter dated 5 th
November 2020. The Directorate of Forensic Sciences, vide their report dated
26th February 2021, have stated as under :
"Parcel Mark-QS1 :-
Exhibit Mark-QS1
1 (One) sealed brown colour paper envelope marked as
`QS1' had 07 (Seven) impressions of sealing wax on it. This
SQ Pathan 50/53
wp-2077-2021.doc
envelope contained a transparent plastic zip lock bag. Upon
opening this bag it contained different color/colorless,
printed/non printed, perforated/Non perforated, square
shape and various size 31 (Thirty one) blot papers. The
net weight of this material was 0.6200 gm. This material
was recognized as exhibit mark-QS1 our laboratory."
(Emphasis supplied)
38 The opinion given by the FSL, reads as under:
"(5) On the basis of physical examination, chemical and
instrumental analysis, presence of Lysergic acid diethylamide
(LSD) is detected in Exhibit Mark-QS1."
39 The Chemical Analyser's report shows that what was received by
them was 'QS1' i.e. 31 blot papers, weighing 0.6200 grams, with no
characteristic smell.
40 The FSL report is not clear, as to whether the FSL had checked
every blotting paper for LSD or not, or, whether only one sample test was done
and thereafter, the weight of all the blot papers, was taken into consideration.
The FSL ought to have conducted an individual test of every blot paper, to
SQ Pathan 51/53
wp-2077-2021.doc
ascertain whether it has LSD on it. The NDPS Act provides stringent
punishment, and hence, it was incumbent to test every blot paper for LSD. It
is well possible that a few blot papers may test positive for LSD and some may
not. It is also not clear, what happened to the 10 strips of blot papers that were
seized, as reflected in the Panchanama. The weight of 31 blot papers and 10
strips was 0.6200 gms, when seized and the weight of 31 blot papers
containing LSD, according to the FSL report, was also 0.6200 gms, which
prima facie, seems improbable. Infact, some labs, in their analysis, like the
FSL, at Kalina, Maharashtra, have given reports, on both, the quantity of only
the LSD on the blot paper, as well as total quantity i.e. LSD with blot paper.
The said fact is not in dispute. Even if the said exercise is done, whilst
considering the case, the whole of the quantity i.e. LSD with blot paper is to be
taken into consideration whilst considering 'small' or commercial quantity,
having regard to what is stated hereinabove.
41 Having regard to what is stated hereinabove, it would be in the
interest of justice, to direct the Investigating Officer, NCB, to send the sample
SQ Pathan 52/53
wp-2077-2021.doc
'QS1' to the FSL, Gujarat for ascertaining whether each of the blotter paper
contains LSD. The FSL to give the weight of each of the blot papers
purportedly containing LSD on it.
The Director, FSL, Gandhinagar, Gujarat to comply with the said
order and submit its report within 6 weeks from today to the Trial Court.
The Investigating Officer, NCB, to forthwith communicate the
said order to the Director, FSL, Gandhinagar, Gujarat within one week from
today.
Accordingly, the Petition is allowed and Rule is made absolute on
the aforesaid terms. The Petition is accordingly disposed of.
All parties to act on authenticated copy of this Judgment.
REVATI MOHITE DERE, J.
SQ Pathan 53/53
