Technical violations in drug seizure protocols affect quantity assessment under NDPS Act.

ORDER

This is an application filed u/s 439 of Code of Criminal Procedure seeking regular bail.

2. The petitioner is the accused in Crime No.17/2022 of the Excise Range Office, Ernakulam. The offence alleged is under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short)

3. The prosecution case in short is that on

01.03.2022 at about 11 P.M., the petitioner was found in possession of 0.3868 gms of LSD stamp for sale in contravention of the NDPS Act and Rules and thereby committed the aforesaid offence.

4. Heard Sri.Suman Chakravarthy, the learned counsel for the petitioner and Smt.Seena C., the learned Public Prosecutor and perused the case diary.

5. The learned counsel for the petitioner, to get over the rigour of Section 37 of the NDPS Act, has raised before me the following two points:

(i) The weight of the LSD shown in the Mahazar as 0.3868 gms is inclusive of the weight of the stamps. According to the learned counsel, if the LSD alone is taken, it would be a small quantity. In support of his submissions, the learned counsel relied on the decision of the Bombay High Court in Hitesh Hemant Malhotra v. State of Maharashtra [(2021) 3 MhLJ(Crl) 78] dated 07.12.2020 as well as the three decisions of this Court in Bail Application Nos.1718/2021 dated 08.03.2021, 2652/2021 dated 07.05.2021 and

3577/2021 dated 04.05.2021.

(ii) There is contravention of Section 50 of the NDPS Act.

6. Per contra, the learned Public Prosecutor submitted that the contraband was seized from the possession of the petitioner and that the materials on record would clearly show that it is a commercial quantity and the bar under Section 37 of the NDPS Act would get attracted.

7. I have perused the records. The Mahazar would show that, on getting prior information that the petitioner was carrying LSD stamps, the Excise Inspector went to the scene of occurrence and on seeing the Excise Party, the petitioner perplexed and on questioning, he admitted that he was having possession of LSD stamps. Thereafter, the petitioner voluntarily took the purse from his pocket, opened it and took 20 numbers of LSD stamps and handed them over to the Excise Inspector who, after being convinced that it was LSD stamps, seized the same. Thereafter, the Excise Inspector asked the petitioner whether he required the presence of the Magistrate or Gazetted Officer to conduct his body search and the petitioner answered in the negative. Still, the Excise Inspector secured the presence of a Gazetted Officer, and in his presence, the body search of the petitioner was conducted in compliance of Section 50 of the NDPS Act and on such search, no contraband substance was found in his body. Thus, admittedly, before seizure of the LSD stamps from the possession of the petitioner, of the NDPS Act was not invoked. When the petitioner disclosed to the Excise Inspector that he had kept the LSD stamps in his purse, the Excise Inspector ought to have given an option to the petitioner to seek the presence of either the Gazetted Officer or the Magistrate in compliance of of the NDPS Act. Here, the option was given to the petitioner to secure the presence of the Gazetted Officer or the Magistrate only after seizure was made. Thus, I find some force in the argument of the learned counsel for the petitioner that there is violation of of the NDPS Act.

8. As to the question whether the quantity involved is a commercial quantity or not, the Mahazar would show that the weight shown in it is inclusive of the weight of the stamps. According to the learned counsel for the petitioner, if the LSD alone is taken, it will be below the small quantity. In the decision of the Bombay High Court in Hitesh Hemant Malhotra (supra), relied on by the