Himachal Pradesh High Court
Sumit Kumar Son Of Sh. Bhim Singh vs Unknown on 20 July, 2022
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF JULY, 2022
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CRIMINAL MISC.PETITION (MAIN) No. 1259 of 2022
Between:-
SUMIT KUMAR SON OF SH. BHIM SINGH,
RESIDENT OF HOUSE NO. DP 489/3,
POLICE STATION CITY PALWAL,
DISTRICT PALWAL, HARYANA,
AGED 22 YEARS, PRESENTLY IN
JUDICIAL CUSTODY IN DISTRICT JAIL,
KULLU, H.P.
....PETITIONER
(BY SH. ARVIND NEGI, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ....RESPONDENT.
(SH. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL.)
RESERVED ON: 15.07.2022
DECIDED ON: 20.07.2022
__________________________________________________________________
This petition coming on for pronouncement of
judgment this day, the Court passed the following:
ORDER
Petitioner is accused in case FIR No. 349 of 2021,
dated 17.12.2021, registered at Police Station Sadar, Kullu,
District Kullu, H.P. under Section 22 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (for short NDPS Act).
2. Petitioner was apprehended by the police on 17.12.2021
.
at about 7.40 P.M. near Kasol (Goz) Mashroom Café on Manikaran
road within the jurisdiction of Police Station Sadar, Kullu. On
noticing police, petitioner allegedly took out a packet from the
pocket of his trouser and threw the same on the road. The packet
so thrown by petitioner was checked, which was transparent
polythene packet containing 20 LSD papers, which after weighing
were found to be 0.21gm. The petitioner was arrested. The papers
recovered and seized from the petitioner were sent for analysis to
SFSL, Junga. The Laboratory report described the papers as LSD
papers being sample of Lysergide (LSD). The weight of the LSD
including the papers constituted commercial quantity. After
investigation, the challan has been presented and the trial is
pending before the learned Special Judge, Kullu.
3. Petitioner has submitted that even as per the case of
prosecution, no recovery was made from his conscious possession.
The petitioner was arrested merely on assumptions and is in
custody since 17.12.2021. The petitioner is only 22 years of age
and his prolonged incarceration shall be prejudicial to his career.
As per petitioner, he has not been involved in any other case and
is first offender. It has also been contended on behalf of the
petitioner that as per SFSL report, the amount of LSD was found
.
to be 1.49 mg/217.0mg w/w of LSD papers. The commercial
quantity of LSD is 0.1 gram, therefore, the petitioner is alleged to
have been found in possession of only small quantity of LSD.
4. I have heard learned counsel for the petitioner and
learned Deputy Advocate General for the State and have also gone
through the status report.
5. The question that arises for consideration is whether the
paper containing the LSD can be said to be the integral part of LSD
drug? In case the weight of LSD including paper is considered, it
exceeds commercial quantity.
6. Learned counsel for the petitioner has submitted that the
weight of paper cannot be taken into consideration for determining
the quantity of LSD because the paper by itself does not form either
Narcotic Drug or Psychotropic Substance.
7. Learned counsel for the petitioner has placed reliance on
an order dated 7.12.2020 passed by the learned Single Judge of
the High Court of Judicature at Bombay in Criminal Bail
Application No. 352 of 2020, titled Hitesh Hemant Malhotra vs.
State of Maharashtra, in which the learned Single Judge has
proceeded to grant bail to the petitioner therein by holding that the
paper was not a neutral substance and its weight cannot be
.
included for the purpose of determining the quantity of drug.
Accordingly, the learned Single Judge of Bombay High Court
distinguished the case on facts from the dictum of Supreme Court
in Hira Singh and another vs. Union of India and another
(2020) 20 SCC 272.
8. The order relied upon by learned counsel for the
petitioner, however, has been held to have no binding effect in a
later judgment passed by learned Single Judge of Bombay High
Court in Criminal Writ Petition No. 2077 of 2021, titled
Narcotics Control Bureau, Mumbai Zonal Unit vs. Anuj
Keshwani and another, decided on 29th November, 2021, in
following terms:
"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."
9. The Hon'ble Supreme Court in Hira Singh (supra), after
.
analyzing the object and reasons of NDPS Act as also all other
relevant factors held as under:
"12.2. 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."
10. LSD is an extremely potent hallucinogen made from
lysergic acid. It is used as the doses in microgram. LSD is
commonly distributed for illicit use on paper which is absorbent
as a blotter paper. The paper is also consumable and LSD is
consumed by the user alongwith the paper. In such circumstances
to hold that the weight of paper will not be included for
determining the small or commercial quantity of the offending
drug, will be against the clear import of Hira Singh (supra) as also
the objects and reasons for which the act has been enacted.
11. In light of the above discussion, the petitioner is accused
of keeping in his conscious possession commercial quantity of
LSD, which attracts the rigors of Section 37 of the NDPS Act.
.
12. That being so, the petitioner is not held entitled for bail
in the instant case as this is not a case where the Court may be in
a position to prima-facie hold the petitioner not guilty of offence
alleged against him. Further, the very fact that petitioner, who
originally belongs to State of Haryana, was found with the
dangerous drug like LSD in remote area of Kullu District of
Himachal Pradesh, speaks for itself. In these circumstance, it
cannot be presumed that in case of release of petitioner on bail, he
will not indulge in commission of crime during the period of his
release on bail.
13. In light of above discussion, there is no merit in the
instant petition and the same is accordingly dismissed.
14. Any observation made hereinabove shall not be taken
as an expression of opinion on the merits of the case and the
trial Court shall decide the matter uninfluenced by any
observation made hereinabove.
20th July, 2022 (Satyen Vaidya)
(GR) Judge
