Point of Law: NDPS Act -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.

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 ?

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 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 sansthe 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, Cri.BA/352/2020 decided on 07.12.2020 allowed the respondent No. 1’s 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, 2020 SCC OnLine SC 382 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 R