The court interprets that non-drug materials should not be included in determining the commercial quantity of drugs under the NDPS Act.

O R D E R

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

2. The petitioner is the accused in crime No.41/2020 of Excise Enforcement and Anti Narcotic Special Squad, Ernakulam. Above case is registered against the petitioner alleging offence punishable under Sec.22(C), 20(b)(ii) A and 29 of the NDPS Act .

3. The prosecution case is that on 8.12.2020 at 7.45 pm, the petitioner was found in possession of 0.4171 gms of LSD stamps (25 nos.), 28.7501 gms (100 nos.) MDMA and 20 gms of ganja at the office room of DTDC courier company, Paravur franchisee along with the 2^nd accused in the crime in violation of NDPS Act and Rules. It is alleged that the accused No.3 in the crime send the contraband item through courier from Goa and the 1^st and 2^nd accused received the same for the purpose of sale. The petitioner was arrested on 8.12.2020.

4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the petitioner has not committed any offence. The counsel submitted that the petitioner is in custody from 8.12.2020 onwards. According to the counsel, the quantity seized from the petitioner is not commercial quantity and this point is considered by this Court in Annexure-A2 order. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the point raised by the petitioner is to be decided by the trial court and this Court may not release the petitioner on bail at this stage.

5. It is true that the allegation against the petitioner is very serious. But the petitioner is in custody from 8.12.2020 onwards. In the bail application, a specific contention is raised about the quantity of the contraband seized from the petitioner. Para 7 of the bail application is extracted hereunder:

"Without prejudice to the contentions stated above, it is submitted that the contrabands allegedly seized will not go beyond intermediary quantity. Out of the total contrabands seized, it is alleged that 28.7501 grams of MDMA pills and 0.4171 grams of LSD stamp were seized from the parcel which came through courier and 20 grams of ganja was seized from the possession of the petitioner. As per item No.134 of the table in the NDPS Act , the small quantity of MDMA is 0.5 gram and the commercial quantity is 10 gram. So it is alleged that 28.7501 grams of MDMA pills is commerial quantity. The weight of the actual MDMA and the capsule shell which contained the MDMA were taken together while calculating the weight. It is highly illegal. The MDMA seized was in the form of pills/capsules. The capsule shell is an outer skin in which medicinal substance is contained. The capsule shells are made of gelatin and it dissolve in the mouth. Once the weight of capsule shell is separated, the actual weight of the MDMA can be ascertained and if so, it will be below intermediary quantity. As per item No.133 of the table in the NDPS Act , the small quantity of LSD is 0.002 gram and the commercial quantity is 0.1 gram. It is alleged that 0.4171 gram of LSD stamp is commercial quantity. The weight of the actual LSD and the papers containing dried LSD drops of LSD solution were taken together while calculating the weight. It is highly illegal. The LSD seized was in the form of stamp and not in crystal form. If the weight of the papers is excluded, the actual weight of the LSD can be ascertained and if so, it will come below the intermediary quantity."

6. The counsel relied on Annexure-A2 order of this Court in which this Court observed that it is an arguable point which is to be decided by the trial court. The relevant portion of the order dated 8.3.2021 in BA No.1718/2021 is extracted hereunder :

"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 poin