Mr Nihaal.S vs State By Inspector Of Customs
2023 Latest Caselaw 1675 Kant

                             1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 2ND DAY OF MARCH, 2023

                        BEFORE

             THE HON'BLE MRS.JUSTICE M.G. UMA

            CRIMINAL PETITION NO.8285/2022

BETWEEN:
MR. NIHAAL .S
S/O SUNIL .N,
AGED ABOUT 25 YEARS,
R/AT 2ND MAIN, M.V. NAGAR,
RAMAMURTHY NAGAR,
BANGALORE NORTH - 560 021
AS PER COMPLAINT
R/AT NO.3, 7TH CROSS
GOVINDAPPA LAYOUT,
HORAMAVU AGARA,
BANGALORE - 560 043
                                                ... PETITIONER
(BY SRI: HASMATH PASHA, SENIOR COUNSEL FOR
    SRI: KARIAPPA .N.A, HP UNIQUE AND CO.)

AND:
STATE BY INSPECTOR OF CUSTOMS
HEAD QUARTER PREVENTIVE UNIT (HPU)
BANGALORE CITY CUSTOMS,
BANGALORE - 560 001
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR)
                                             ... RESPONDENT

(BY SRI: CHIDANAND .K., SPECIAL PUBLIC PROSECUTOR)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN FILE
NO.GEN/INV/OTH/117/2021/HPU OFFICE OF THE COMMISSIONER,
CUSTOMS,       BENGALURU        WHICH       IS  PENDING IN
SPL.C.C.NO.933/2022 ON THE FILE OF XXXIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS),
BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
8(C), 22(C), 23(C), 27, 28, 29 OF N.D.P.S. ACT.
                                         2




     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 03.02.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:

                                 ORDER

The petitioner-accused is before this Court seeking

grant of bail under Section 439 of Cr.P.C., in File

No.GEN/INV/OTH/117/2021-HPU of Inspector of Customs,

Headquarter Preventive Unit (HPU), Bengaluru City Customs,

pending in Spl.CC No.933 of 2022 on the file of the XXXIII

Additional City Civil and Sessions Judge and Special Judge for

NDPS Cases, Bengaluru, registered for the offences

punishable under Sections 8(c), 22(c), 23(c), 27, 28 and 29 of

Narcotic Drugs Psychotropic Substances Act, (for short 'NDPS

Act').

2. Brief facts of the case are that, a parcel arrived in

the Foreign Post Office, Chamarajpet, Bengaluru. The

Superintendent of Customs suspected that the parcel may

contain banned substance. Therefore, the same was opened

in the presence of two independent witnesses and it was

containing a plastic packet with 1120 paper strips weighing 15

grams, which appeared to be LSD. Sample strip was

randomly picked and examined by using the drug detection

kit, which gave positive result and prima-facie it appeared all

the strips to be LSD. The same were seized under the

mahazar. The sample LSD strips were also seized.

3. It is stated that since the parcel was addressed to

the consignee by name Madan M, with his address, in order to

intercept the actual addressee of the parcel in question, a

dummy parcel with same article No.RR485422921PL, with

name and address of the consignee was dispatched from the

Foreign Post Office, Chamarajpet, Bengaluru, in the name of

Madan M. Since the address was within the Horamavu Agara

Post Office, the dummy parcel was sent there for delivery to

the consignee. Even though there was no proper address to

locate the addressee, it is believed that the actual consignee

would come to collect the parcel from the post office.

Accordingly, it is stated that the petitioner came to Horamavu

Post Office and enquired about the parcel and collected it.

The postman cautioned the Custom Officers who immediately

questioned the petitioner and the dummy parcel which was in

his custody, which he claimed as Madan M, was seized under

the mahazar. Thus, it is the contention of the prosecution

that the petitioner posing himself as Madan M, consigned the

parcel from Poland and collected it from Horamavu Post

Office. However, the petitioner contends that his name is

Nihaal S and he came to the post office to collect the parcel as

per the instructions of his friends by name Madan M and

Melford Layborne and also informed that they were in Goa at

that time. The investigation was undertaken after

apprehending the petitioner and the complaint came to be

filed alleging the commission of offences as stated above

against the petitioner.

4. Heard Sri Hashmath Pasha, learned senior

advocate for Sri N A Kariappa, learned counsel for

the petitioner and Sri K Chidananda, learned Special Public

Prosecutor for the respondent-State. Perused the materials

on record.

5. Learned senior advocate for the petitioner

contended that the petitioner is the sole accused. He is

innocent and has not committed any offences as alleged. He

has been falsely implicated in the matter without any basis.

He was apprehended on 23.10.2021 and since then, he is in

judicial custody. After investigation, the charge sheet is

already filed. The consignment was addressed to Madan M

and the petitioner is not the consignee to whom the parcel

was addressed. He had gone to the post office at the instance

of the consignee i.e., Madan M and one Melford Layborne.

Therefore, no offence is made out against the petitioner.

6. Learned senior advocate submitted that the seized

contraband is not of commercial quantity. Even though, it is

stated that the consignment was containing 1120 strips of

LSD, as per the recommended methods for testing Lysergide

(LSD), issued by the United Nations, Division of Narcotic

Drugs, Vienna, Typical dose of only 30-50 micrograms of LSD

would be present in each strip and therefore, only such

quantity of 30-50 micrograms per strip is to be taken into

consideration, while determining the quantity of the

contraband. The weight of the paper strip is to be excluded

while determining the quantity of the contraband for the

purpose of NDPS Act. He further contended that even if the

maximum of 50 micrograms of LSD per strip is to be taken

into consideration, the contraband seized will not fall under

the category of commercial quantity. On the other hand, it

will be of small quantity with 56,000 micrograms.

7. Learned senior advocate referred to the decisions

of the Co-ordinate Benches of this Court in Keerthan Shetty

Vs State of Karnataka 1 and in Amartiya Rishi Vs State of

Karnataka 2, to contend that even this Court accepted such

contention that the recommended methods for testing LSD

issued by United Nations is to be followed and typical dose of

30-50 micrograms of LSD is to be taken into consideration to

determine the quantity for the purpose of NDPS Act.

8. Learned senior advocate further submitted that

only a small quantity of suspected LSD strips were sent for

FSL testing. He placed reliance on the deposition of Dr N

Vani, Assistant Director, FSL, Bengaluru, recorded on

19.09.2022 in Spl.C.C.No.386 of 2016 on the file of the

learned XXXIII Additional City Civil and Sessions Judge and

Special judge (NDPS Cases) Bengaluru City (CCH - 33), to

contend that even according to the Forensic Expert, each strip

will have to be subjected for analysis to ascertain the

presence of LSD. Therefore, it is his contention that

forwarding few strips for testing is in clear violation of the

procedure, which is required to be followed. Thus, it is

Crl.P 1104/2021 DD 19.03.2021

Crl.P 2044/2020 DD 21.04.2020

contended that the consignment was not addressed to the

petitioner, the total quantity of the contraband is only a small

quantity as per the Notification appended to the NDPS Act and

further all the strips suspected to contain LSD were not sent

for FSL examination. Under these circumstances, learned

counsel submitted that there is nothing on record against the

petitioner to suspect commission of any offence under the

Act.

9. Learned senior advocate also contended that the

petitioner is suffering from Pneumonia as the lobe of his lung

was removed during his childhood. Since then, he is suffering

from breathlessness and his condition worsens during winter.

He is under medication since several years. As now he is

detained in custody, his health condition is deteriorating.

Therefore, even on health grounds the petitioner is entitled

for grant of bail. He further submitted that the petitioner

who was apprehended on 23.10.2021. Since then he is in

judicial custody and it amounts to pre-trial punishment

without there being any prima facie materials. The petitioner

is the permanent resident of the address mentioned in the

cause title to the petition and is ready and willing to abide by

any of the conditions that would be imposed by this Court.

Hence, he prays to allow the petition.

10. Per contra, learned Special Public Prosecutor

opposing the petition submitted that serious allegations are

made against the petitioner for having committed the

offences. The facts of the case discloses that, a controlled

delivery operation was held. The petitioner came to

Horamavu Post Office and collected the dummy parcel

introducing himself as Madan M and signing the delivery

manifest as such. Immediately thereafter the authorized

officer with his team and two independent witnesses

questioned the petitioner about the parcel, the petitioner

informed that he is not Madan M, but he is Nihaal S, who

came to collect the parcel. Later, he signed the delivery

manifest as Nihaal S.

11. Learned Special Public Prosecutor submitted that

the very fact that the petitioner had came to Horamavu Post

office to collect the parcel received from Poland which was

having the name of the consignee as Madan M without proper

postal address, introducing himself as the consignee, prima

facie discloses that the petitioner is a seasoned drug peddler,

who used to get such parcel with the contraband in fictitious

name. The consignee Madan M may be a fictitious person but

the consignment was procured by the petitioner himself. The

sample LSD strips were sent for FSL examination and the

report is still awaited. Since there are prima facie materials

to contend that the contraband was LSD strips weighing 15

grams, which is of commercial quantity, there is a bar under

Section 37(1)(b)(ii) of the NDPS Act, to release the petitioner

on bail, unless the twin conditions mentioned therein are

satisfied.

12. Learned Special Public Prosecutor further

submitted that even though it is stated that there is medical

emergency and the petitioner is to be released on bail, the

medical records that are produced before the Court by the

Superintendent of Central prison discloses that the petitioner

is not having any such emergency and he is not suffering

from any life threatening ailment. The petitioner might have

underwent a surgery to one of the lobes of his lung during his

childhood, that was in the year 2000. For all these 23 years,

the petitioner had grown up healthy and there is no serious

complications even when he was detained in custody. The

only complaint raised by the petitioner is breathlessness and

he was treated in Bengaluru Medical college and also in

Victoria Hospital. Required tests were conducted and the

report appears to be quite normal. Under such

circumstances, the petitioner is not entitled to be enlarged on

bail, either on merits of the case or on medical grounds.

Hence, he prays for dismissal of the petition.

13. Learned State Public Prosecutor placed reliance on

the decision in Hira Singh Vs Union of India 3, to contend

that the paper strip containing pure LSD is not required to be

excluded to quantify the contraband. He submits that the

paper strip is the medium to hold LSD for circulation and also

for consumption. He also placed reliance on the decision of

the High Court of Judicature at Bombay in Narcotics Control

Bureau Vs Anuj Keshwani and another4, to contend that

even in case of LSD strips, the decision in Hira Singh (supra)

is applicable and also to contend that even at this stage, the

entire LSD strips seized under the mahazar could be ordered

AIR 2020 SC 3255

2021 SCC Online Bom 4548

to be sent for testing. Accordingly, he prays for dismissal of

the petition.

14. In view of the rival contentions urged by the

learned counsel for both the parties, the point that would

arise for my consideration is:

"Whether the petitioner is entitled to be enlarged on bail under Section 439 of Cr.P.C.?"

My answer to the above point is in 'Negative' for the

following:

REASONS

15. As per the facts narrated in the complaint, the

parcel consigned from Poland addressed to one Madan M was

received in the Foreign Post Office, Chamarajpet, Bengaluru

and it was containing 1120 paper strips, weighing 15 grams,

suspected to be LSD strips. The ground test gave positive

result for LSD. The petitioner came to collect the parcel

referring himself as the addressee - Madan M. Hence it is

contended that the petitioner procured commercial quantity of

LSD from Poland and thereby committed the offence.

16. Learned senior advocate raised two important

points i.e., (i) the weight of the paper strip is to be excluded

in determining the total quantity of the contraband as even as

per the recommended methods for testing LSD issued by

United Nations, the total weight of LSD per strip could only be

30-50 micrograms and (ii) all those 1120 paper strips

suspected to be containing LSD, should have been sent for

testing as it is the opinion of the expert as deposed by the

Assistant Director of FSL, Bengaluru.

17. Learned senior advocate placed reliance on two

decisions of the Co-ordinate Bench of this Court in Keerthan

Shetty (supra) and in Amartiya Rishi (supra), wherein, the

reliance was placed on the manual for use published by United

Nations and the weight of LSD in each strip was taken into

consideration as typical dose of 30-50 micrograms excluding

the weight of paper strip to form an opinion that the bar

under Section 37(1)(b)(ii) of the NDPS Act is not applicable.

18. It is pertinent to note that the decision of Full

Bench of the Hon'ble Apex Court in Hira Singh (supra),

considered the questions referred by the Bench viz

(a) Whether the decision of Hon'ble Apex Court in E Micheal Raj Vs Intelligence Officer, Narcotic Control Bureau [(2008) 5 SCC 161], requires re-consideration 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 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 contend 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?"

These references were answered as under:

"(I).The decision of this Court in the case of E. Micheal Raj (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."

19. Even though, the drugs involved in the cases

either in E Micheal Raj (supra) or in Hira Singh (supra)

were Heroin, the consideration and the discussion does not

restrict only to Heroin, but it is generally to the Narcotic Drugs

or Psychotropic Substances referred to under the NDPS Act.

Under such circumstances, the contention of the learned

senior advocate that it is applicable only to Heroin and not to

LSD strips, cannot be accepted.

20. The Hon'ble Apex Court considered the contention

taken by the Union of India that in E-Michael Raj (supra),

the Court had focused on the interpretation of Section 21 of

NDPS Act without giving effect to the purport of the said

provision and held that, only the content of narcotic drugs or

psychotropic substance shall be taken into consideration to

constitute the quantity of drug is wrong as the same is

contrary to the entire scheme of NDPS Act and its object and

purpose. The Hon'ble Apex Court after considering the object

with which NDPS Act was enacted and also the statement of

Objects and Reasons of the Amending Act of 2001 highlighted

the intention of the legislature, which was to rationalize the

sentence structure so as to ensure that the drug traffickers

who traffic in significant quantities of drugs are punished with

deterrent sentence, while the addicts and those who commit

less serious offences are sentenced with less severe

punishment. Under such circumstances, it is held that rate of

purity is irrelevant and had not accepted the contention of the

respondent that it is the intention of the legislature to levy

punishment based on the contents of offending drug in the

mixture and not on the weight of the mixture as such.

21. The Hon'ble Apex Court also noted that illicit

drugs are seldom sold in a pure form, but they are almost

always adulterated or mixed with other substance, which

could allow users to take drug faster and get a big punch

sooner. There is reference to heroin mixed with caffeine,

aspirin, crushed tablets, brown sugar to quote few examples

to show and demonstrate that even mixture of narcotic drugs

or psychotropic substance is more dangerous. Thus it was

held that what is harmful or injuries is the entire

mixture/tablets with neutral substance with narcotic drugs

and psychotropic substance. It is also held that if it is to be

interpreted otherwise, the very intention and object and

purpose of the enactment of NDPS Act will be defeated.

22. It is to be noticed that even though the co-

ordinate Benches of this Court accepted the contention that

the weight of paper strip is to be excluded and only 30-50

micrograms of LSD per strip is to be taken into consideration

to determine the quantity under Section 21 of the NDPS Act,

there is no reference nor there is any distinction with the

decision of the Full Bench in Hira Singh (supra) and in all

probability, this decision was never brought to the notice of

the co-ordinate Benches of this Court.

23. In the Country as a whole, and in the State of

Karnataka in particular, the contraband including LSD are

being seized in large quantities. There is alarming rise in

cases registered under the special enactment. Still it may

only be the tip of the iceberg and the real deal must be much

more. However, consumption of synthetic drug has increased

by many fold. Particularly, the youngsters are being targeted

by the unscrupulous drug peddlers and thereby posing threat

to the health of the society as a whole. Taking into

consideration the menace which is being caused by these

drugs, NDPS Act was enacted with an intention to rationalize

the sentence structure and to ensure that the drug traffickers

who are trafficking significant quantity of drugs are punished

with deterrent sentence, while the addicts and those who

commit less serious offence are sentenced with lesser

punishment. Therefore, the punishment under the statute

depends upon the quantity of the offending drug. The

Notification appended to the Act describes various quantities

to constitute the small or commercial quantity for different

types of drugs depending upon its effect on an individual on

its consumption. Therefore, obviously the substance which is

meant for circulation, sale and for consumption is to be taken

into consideration and not the pure drug as contended by the

learned senior advocate.

24. The contention of the learned senior advocate that

the pure LSD may be a small droplet on the strip and

therefore, as per United Nations - Recommended Methods for

testing LSD, only 30 to 50 microgram per strip is to be taken

into consideration for the purpose of determining its quantity

cannot be accepted. In this recommendation, the United

Nations refers to the contents of the LSD tablets and also to

the paper dosage which has become more common in 1980's,

where the pure LSD was dropped on the paper, ensuring more

uniform product. Under such circumstances, it is observed

that typically those sheets are perforated into squash of

approximately 5 mm in size, each containing a typical dose of

30 to 50 micrograms of LSD. The ease with which such LSD

solution can be applied to variety of subtracts was also

considered to conclude that great majority of types of LSD

dosage forms found in the illicit market are either paper

dosage units or small tablets similar to micro dots or in gelatin

form. The recommendations never say that the weight of

each strip is to be taken at 30 to 50 mm only for the purpose

of determining the quantity of the drug.

25. The High Court of Judicature at Bombay in Anuj

Keshwani (supra), while referring to the decision of Hon'ble

Apex Court in Hira Singh (supra) held in para 30 as under:

"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."

(Emphasis supplied)

26. It also referred to the decision of this Court in

Rijesh Ravindran Vs Union of India5, wherein, relying on

the decision in Hira Singh (supra), it is held that 180 blots of

LSD seized from the possession of the accused therein and

found that the same was commercial quantity. After

considering various judgments, it has come to the conclusion

that the blotter paper forms an integral part of LSD, when put

on a blotter paper for consumption and as such the weight of

MANU/KA/4227/2020

the blotter paper containing LSD will have to be considered to

know the actual weight for the purpose of determining small

or commercial quantity of the offending drug.

27. Therefore, the contention taken by the learned

senior advocate that only 30 to 50 mm per strip is to be taken

into consideration to determine the quantity of the drug for

the purpose of Section 21 of the NDPS act, cannot be

accepted.

28. It is also pertinent to note that a similar question

had arisen before the co-ordinate Bench of High Court of

Bombay at Goa in H S Arun Kumar Vs The State of Goa6 as

to whether the combined weight of LSD and the blotter or just

the weight of the pure LSD is relevant to determine the small

or commercial quantity and the consequent punishment under

NDPS Act. The learned Single Judge formulated the following

questions for reference to the Division bench for

consideration:

(i) Whether blotter paper forms an integral part of the LSD (drug), when put on it for consumption and, as such, weight of blotter paper

2022 Live Law (Bom) 432

containing LSD will have to be considered for the purpose of determining small or commercial quantity of the offending drug under Narcotic Drugs and Psychotropic Substances Act, 1985?

(ii) Whether blotter paper that carries the drug (LSD drops) which facilitate its consumption, as a whole is preparation or mixture or neutral substance within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985?

29. These questions were referred to the Division

Bench and the Division Bench considered the subject

exhaustively by referring to all the relevant provisions of law

and the decisions rendered at various Courts including the

Courts at United States. It has also referred to the decision of

the Hon'ble Apex Court in Hira Singh (supra) and held as

under:

"113. For all the above reasons, we hold that a blotter paper forms an integral part of the LSD (drug) when put on it for consumption and, as such, the weight of the blotter paper containing LSD will have to be considered for determining small or commercial quantity of the offending drug under the NDPS Act, 1985. Further, we also hold that the blotter paper that

carries the drug (LSD drops), which facilitates its consumption as a whole, is a preparation, mixture, or neutral substance within the meaning of the NDPS Act, 1985.

114. Since the referral order refers to LSD as a drug, we have continued to adopt that term when answering the two questions referred to. However, in terms of Section 2(xxiii) of the NDPS Act, there is no dispute that LSD will have to be classified as a psychotropic substance and not a drug."

30. In view of the discussions held above, I do not

have any hesitation to hold that the strip or the blotter paper

on which LSD drops were put, are integral part of LSD and the

same cannot be separated for considering the small or

commercial quantity of the drug under NDPS Act and

therefore, the contention raised by the learned senior

advocate that only the pure LSD i.e., at 30 to 50 micrograms

per strip, is to be taken into consideration is to be rejected.

31. The second question raised by the learned senior

advocate with regard to the requirement of sending of all the

strips for testing without restricting only the sample strips

being sent to FSL examination, is based on the deposition of

the Assistant Director of FSL, Bengaluru.

32. In Rijesh Ravindran (supra), this Court

considered that the FSL report obtained from the chemical

analyzer was not clear as to whether every LSD strips were

checked or whether only one sample test was done, it was felt

that the test should have been conducted on individual strips

to ascertain whether it had in fact contained LSD or not.

Since NDPS Act prescribes stringent punishment in case of

contraband which is of commercial quantity, examination of

each strip was felt necessary. However, it was also observed

that even if the said exercise of examining each of the strip is

undertaken, the whole quantity of LSD with blot paper is to be

taken into consideration whilst considering small or

commercial quantity and therefore, directed the Investigating

officer to send the LSD blotter paper to FSL for examination

and report.

33. Even though the Assistant Director of FSL,

Bengaluru while deposing before a Sessions Court, Bengaluru

deposed that each strip will have to be subjected for analysis

to ascertain the presence of LSD, that has no other basis

either under the statute or under the Rules. Even the United

Nations Recommendations do not contain such suggestion.

However, taking into consideration the severity of the

punishment, the Investigating Officer may resort to get a

report subjecting the LSD strips seized to the chemical

analysis which will answer the question as to whether all the

strips were containing LSD and that will also help in

quantifying the contraband which the accused was in

possession of. This exercise may be necessary where the

contraband was not uniform and where it may be difficult to

draw homogenous and representative samples from the bulk.

34. It is also pertinent to note that Section 52-A of

the NDPS Act prescribes the manner and procedure of

sampling. However, sub-section (1) authorizes the Central

Government to prescribe by Notifications the procedure to be

followed for seizure, storage and disposal of the drugs and

psychotropic substances. The Central Government in exercise

of the power vested in it, issued Standing Order No.1 of 1989

prescribing the procedure to be followed while conducting

seizure of the contraband. Before issuing this Notification, the

Central Government has issued Standing Order No.1 of 1988.

Two more Standing Orders i.e., during 2007 and 2015 are

also issued, which deals with disposal and destruction of

contraband. However, the procedure for drawing sample of

narcotic drugs or psychotropic substances has laid down in

Standing Order No.1 of 1988 issued by the Narcotics Control

Bureau on 15.03.1988. This Standing Order makes its clear

that the seized drugs during packages or containers should be

well mixed to make it homogeneous and representative before

the sample in duplicate is drawn. It also makes it clear that in

case of seizure of single package, one sample in duplicate is

to be drawn. However, it is suggested to draw one sample in

duplicate from each packet, where there are more than one

package. Similar is the procedure suggested in Standing

Order No.1 of 1989. In all such Standing Orders, it is

highlighted to ensure that representative samples in duplicate

are to be taken from each package. Therefore, I do not find

any merits in the contention taken by the petitioner that each

and every strip of LSD is to be forwarded for chemical

examination. But on the other hand, drawing of

representative sampling in duplicate would meet the

requirement of law. Therefore, I do not propose to direct

the Investigating Officer to adopt such a procedure in the

absence of any such requirement prescribed anywhere. It is

for the Investigating Officer to take a decision and to justify

the same during trial.

35. Learned senior advocate contended that even if

the accused is not entitled for grant of bail on merits, he is

entitled to be enlarged on bail on medical grounds. Learned

senior advocate referred to the order sheet maintained by the

Trial Court to contend that the petitioner had complained of

his ailment even before the Special Court. The order sheet of

the Trial Court dated 23.06.2022 discloses that the petitioner

had complained of suffering from severe ailments and the

Superintendent of Prisons was directed to provide suitable

medical treatment. Later the medical report pertaining to the

accused was also called for.

36. The petitioner has produced some of the medical

records including discharge summary to contend that he is

having serious health issues. Those medical records pertain

to the years 2000, 2001 with few prescriptions for the years

2008, 2010 and 2011. Considering these aspects of the

matter, the Superintendent of Central prison, Bengaluru was

directed to produce the medical records along with opinion of

the Medical Officer about his health condition at present.

Accordingly, the Superintendent of Central prison produced

the medical records along with the opinion of Chief Medical

Officer, Central prison, Bengaluru. The Medical Officer

referred to the admission of the petitioner to the private

hospital on 04.12.2000, 25.01.2001 and also the advise

given by the Medical officer at Victoria Hospital Bengaluru on

27.07.2022 and concluded by saying that patient is suffering

from breathlessness due to previous respiratory illness and

surgery and he is on Nebulization and medication at Prison

hospital. It is also stated that he requires investigation and

treatment at specialized centre. Being not satisfied with the

report of the Chief Medical Officer, as his opinion that the

petitioner requires investigation and treatment at Specialized

Centre was not supported by any medical records, the Chief

Medical officer was directed to be present before the Court

along with up-to-date medical records pertaining to the

petitioner maintained in the prison hospital to enable him to

explain the condition of the petitioner and also about non

availability of required medical records to form such opinion.

Accordingly, the Chief Medical Officer appeared before the

Court and produced the medical records pertaining to the

petitioner.

37. However, learned senior advocate at this stage

submits that he is not pressing his prayer for release of the

petitioner on medical grounds and that liberty may be

reserved in favour of the petitioner to move the Trial Court to

pass appropriate orders depending upon the health condition

of the petitioner. Hence, I do not propose to analyze the

health report pertaining to the petitioner in detail.

38. The discussions held above discloses that there

are strong prima facie materials against the petitioner for

having procured the LSD strips of commercial quality.

Therefore, Section 37 (1) (b) (ii) of NDPS Act comes into

operation against the petitioner, which bars enlarging him on

bail, unless the twin conditions mentioned therein are

satisfied. The materials on record do not propose to form an

opinion that the petitioner is not guilty of the offence nor that

the petitioner may not commit any offence while on bail. In

such an event, the petitioner is not entitled for grant of bail.

Hence, I proceed to pass the following:

ORDER

The criminal petition is dismissed.

Sd/-

JUDGE

*bgn/-