Point of Law : 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.

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 Meshra