The judgment clarifies that the weight of narcotic mixtures must be accurately assessed to determine appropriate quantities for bail eligibility under the NDPS Act.

O R D E R

This Bail Application is filed under Section 439 of Criminal Procedure Code .

2. Petitioner is the accused in Crime No.12/2020 of Nilambur Excise Range, Malappuram. This is the 3rd bail application filed by the petitioner under Section 439 Cr.P.C. 3. The short facts are like this: The above crime is registered against the petitioner and another alleging offences punishable under Sections 22 (c), 20(b)(ii)(A), 25, 29 of Narcotics Drugs and Psychotropic Substances Act (NDPS Act).

4. The prosecution case is that the petitioner and other accused were found in possession of 56.64 grams of Ganja, 490 mg of LSD, 4.122 gms of MDMA crystals and 21.22 gms of MDMA pills on a motor bike at Anamari desom, Vazhikkadavu. The petitioner and other accused were arrested on 19.2.2020. The specific case of the prosecution is that the contraband seized from the petitioner is 56 gms of Ganja and 490 mg of LSD.

5. Heard the counsel for the petitioner and the learned Public Prosecutor.

6. The counsel for the petitioner submitted that as far as the Ganja alleged to be seized from the petitioner is concerned, it is small quantity. The contention raised by the counsel for the petitioner is that the LSD alleged to be seized from the petitioner is 490 mg. As per item No.133 of the table in the NDPS Act, the small quantity is 0.002 gms and the commercial quantity is 0.1 gm. In this case, the prosecution case is that the quantity seized from the petitioner is commercial quantity. The counsel submitted that the substance alleged to be seized from the petitioner is LSD stamp. The contention of the petitioner is that the weight of the contraband seized is taken together by the investigating officer. According to the counsel if the LSD alone is taken it will be below the small quantity. This is the sum and substance of the contention. The counsel also relied on the judgment of the Bombay High Court dated 7.12.2020 in Crl.Bail Application No.352 of 2020 where the substance was 10 pieces of papers containing LSD drops.

7. The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that this Court may not consider this question while considering a bail application. The Public Prosecutor submitted that it is a matter of evidence. According to the Public Prosecutor, the definite case of the prosecution is that the petitioner was found in possession of commercial quantity of LSD. While considering this bail application, this point may not be decided and there can be a direction to the lower court to expedite the trial, is the submission of the Prosecutor. The Prosecutor also relied on the judgment of the Apex Court in Hira Singh and Another v.

Union of India and Another ( 2020 (2) KHC 551 ) and the decision of the Karnataka High Court in Registrar General, High Court Karnataka v. A.Shahid and Others (2016 KHC

3351).

8. The admitted case of the prosecution is that only a small quantity of ganja is seized from the possession of the petitioner. The only question to be decided is whether the petitioner was in possession of commercial quantity of LSD stamp. The point raised by the counsel for the petitioner is that the contraband article seized from the petitioner are really falling under the category of small quantity as the weight shown in the mahazar is 0.490 gms which includes the weight of stamp. According to the counsel, it does not conclusively establish that the contraband is above the intermediary quantity. The counsel also submitted that only a quantitative analysis can establish the real quantity of the contraband article. It is an admitted fact that final report is filed in this case before the court below and now the matter is pending trial. Admittedly, the petitioner is in custody from 19.2.2020 onwards. After going through the Judgment of the Bombay High Court, which I mentioned earlier, I think an arguable point is raised by the petitioner. The Bombay High Court considered the decision in Hira Singh (supra)