Karnataka High Court
Mr Nihaal.S vs State By Inspector Of Customs on 2 March, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.8285/2022
BETWEEN:
MR. NIHAAL .S
S/O SUNIL .N,
AGED ABOUT 25 YEARS,
R/AT 2ND MAIN, M.V. NAGAR,
RAMAMURTHY NAGAR,
BANGALORE NORTH - 560 021
AS PER COMPLAINT
R/AT NO.3, 7TH CROSS
GOVINDAPPA LAYOUT,
HORAMAVU AGARA,
BANGALORE - 560 043
... PETITIONER
(BY SRI: HASMATH PASHA, SENIOR COUNSEL FOR
SRI: KARIAPPA .N.A, HP UNIQUE AND CO.)
AND:
STATE BY INSPECTOR OF CUSTOMS
HEAD QUARTER PREVENTIVE UNIT (HPU)
BANGALORE CITY CUSTOMS,
BANGALORE - 560 001
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR)
... RESPONDENT
(BY SRI: CHIDANAND .K., SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN FILE
NO.GEN/INV/OTH/117/2021/HPU OFFICE OF THE COMMISSIONER,
CUSTOMS, BENGALURU WHICH IS PENDING IN
SPL.C.C.NO.933/2022 ON THE FILE OF XXXIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE (NDPS),
BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
8(C), 22(C), 23(C), 27, 28, 29 OF N.D.P.S. ACT.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 03.02.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioner-accused is before this Court seeking grant of bail under Section 439 of Cr.P.C., in File No.GEN/INV/OTH/117/2021-HPU of Inspector of Customs, Headquarter Preventive Unit (HPU), Bengaluru City Customs, pending in Spl.CC No.933 of 2022 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS Cases, Bengaluru, registered for the offences punishable under Sections 8(c), 22(c), 23(c), 27, 28 and 29 of Narcotic Drugs Psychotropic Substances Act, (for short 'NDPS Act').
2. Brief facts of the case are that, a parcel arrived in the Foreign Post Office, Chamarajpet, Bengaluru. The Superintendent of Customs suspected that the parcel may contain banned substance. Therefore, the same was opened in the presence of two independent witnesses and it was containing a plastic packet with 1120 paper strips weighing 15 grams, which appeared to be LSD. Sample strip was randomly picked and examined by using the drug detection 3 kit, which gave positive result and prima-facie it appeared all the strips to be LSD. The same were seized under the mahazar. The sample LSD strips were also seized.
3. It is stated that since the parcel was addressed to the consignee by name Madan M, with his address, in order to intercept the actual addressee of the parcel in question, a dummy parcel with same article No.RR485422921PL, with name and address of the consignee was dispatched from the Foreign Post Office, Chamarajpet, Bengaluru, in the name of Madan M. Since the address was within the Horamavu Agara Post Office, the dummy parcel was sent there for delivery to the consignee. Even though there was no proper address to locate the addressee, it is believed that the actual consignee would come to collect the parcel from the post office. Accordingly, it is stated that the petitioner came to Horamavu Post Office and enquired about the parcel and collected it. The postman cautioned the Custom Officers who immediately questioned the petitioner and the dummy parcel which was in his custody, which he claimed as Madan M, was seized under the mahazar. Thus, it is the contention of the prosecution that the petitioner posing himself as Madan M, consigned the 4 parcel from Poland and collected it from Horamavu Post Office. However, the petitioner contends that his name is Nihaal S and he came to the post office to collect the parcel as per the instructions of his friends by name Madan M and Melford Layborne and also informed that they were in Goa at that time. The investigation was undertaken after apprehending the petitioner and the complaint came to be filed alleging the commission of offences as stated above against the petitioner.
4. Heard Sri Hashmath Pasha, learned senior advocate for Sri N A Kariappa, learned counsel for the petitioner and Sri K Chidananda, learned Special Public Prosecutor for the respondent-State. Perused the materials on record.
5. Learned senior advocate for the petitioner contended that the petitioner is the sole accused. He is innocent and has not committed any offences as alleged. He has been falsely implicated in the matter without any basis. He was apprehended on 23.10.2021 and since then, he is in judicial custody. After investigation, the charge sheet is 5 already filed. The consignment was addressed to Madan M and the petitioner is not the consignee to whom the parcel was addressed. He had gone to the post office at the instance of the consignee i.e., Madan M and one Melford Layborne. Therefore, no offence is made out against the petitioner.
6. Learned senior advocate submitted that the seized contraband is not of commercial quantity. Even though, it is stated that the consignment was containing 1120 strips of LSD, as per the recommended methods for testing Lysergide (LSD), issued by the United Nations, Division of Narcotic Drugs, Vienna, Typical dose of only 30-50 micrograms of LSD would be present in each strip and therefore, only such quantity of 30-50 micrograms per strip is to be taken into consideration, while determining the quantity of the contraband. The weight of the paper strip is to be excluded while determining the quantity of the contraband for the purpose of NDPS Act. He further contended that even if the maximum of 50 micrograms of LSD per strip is to be taken into consideration, the contraband seized will not fall under the category of commercial quantity. On the other hand, it will be of small quantity with 56,000 micrograms. 6
7. Learned senior advocate referred to the decisions of the Co-ordinate Benches of this Court in Keerthan Shetty Vs State of Karnataka 1 and in Amartiya Rishi Vs State of Karnataka 2, to contend that even this Court accepted such contention that the recommended methods for testing LSD issued by United Nations is to be followed and typical dose of 30-50 micrograms of LSD is to be taken into consideration to determine the quantity for the purpose of NDPS Act.
8. Learned senior advocate further submitted that only a small quantity of suspected LSD strips were sent for FSL testing. He placed reliance on the deposition of Dr N Vani, Assistant Director, FSL, Bengaluru, recorded on 19.09.2022 in Spl.C.C.No.386 of 2016 on the file of the learned XXXIII Additional City Civil and Sessions Judge and Special judge (NDPS Cases) Bengaluru City (CCH - 33), to contend that even according to the Forensic Expert, each strip will have to be subjected for analysis to ascertain the presence of LSD. Therefore, it is his contention that forwarding few strips for testing is in clear violation of the procedure, which is required to be followed. Thus, it is 1 Crl.P 1104/2021 DD 19.03.2021 2 Crl.P 2044/2020 DD 21.04.2020 7 contended that the consignment was not addressed to the petitioner, the total quantity of the contraband is only a small quantity as per the Notification appended to the NDPS Act and further all the strips suspected to contain LSD were not sent for FSL examination. Under these circumstances, learned counsel submitted that there is nothing on record against the petitioner to suspect commission of any offence under the Act.
9. Learned senior advocate also contended that the petitioner is suffering from Pneumonia as the lobe of his lung was removed during his childhood. Since then, he is suffering from breathlessness and his condition worsens during winter. He is under medication since several years. As now he is detained in custody, his health condition is deteriorating. Therefore, even on health grounds the petitioner is entitled for grant of bail. He further submitted that the petitioner who was apprehended on 23.10.2021. Since then he is in judicial custody and it amounts to pre-trial punishment without there being any prima facie materials. The petitioner is the permanent resident of the address mentioned in the cause title to the petition and is ready and willing to abide by 8 any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition.
10. Per contra, learned Special Public Prosecutor opposing the petition submitted that serious allegations are made against the petitioner for having committed the offences. The facts of the case discloses that, a controlled delivery operation was held. The petitioner came to Horamavu Post Office and collected the dummy parcel introducing himself as Madan M and signing the delivery manifest as such. Immediately thereafter the authorized officer with his team and two independent witnesses questioned the petitioner about the parcel, the petitioner informed that he is not Madan M, but he is Nihaal S, who came to collect the parcel. Later, he signed the delivery manifest as Nihaal S.
11. Learned Special Public Prosecutor submitted that the very fact that the petitioner had came to Horamavu Post office to collect the parcel received from Poland which was having the name of the consignee as Madan M without proper postal address, introducing himself as the consignee, prima 9 facie discloses that the petitioner is a seasoned drug peddler, who used to get such parcel with the contraband in fictitious name. The consignee Madan M may be a fictitious person but the consignment was procured by the petitioner himself. The sample LSD strips were sent for FSL examination and the report is still awaited. Since there are prima facie materials to contend that the contraband was LSD strips weighing 15 grams, which is of commercial quantity, there is a bar under Section 37(1)(b)(ii) of the NDPS Act, to release the petitioner on bail, unless the twin conditions mentioned therein are satisfied.
12. Learned Special Public Prosecutor further submitted that even though it is stated that there is medical emergency and the petitioner is to be released on bail, the medical records that are produced before the Court by the Superintendent of Central prison discloses that the petitioner is not having any such emergency and he is not suffering from any life threatening ailment. The petitioner might have underwent a surgery to one of the lobes of his lung during his childhood, that was in the year 2000. For all these 23 years, the petitioner had grown up healthy and there is no serious 10 complications even when he was detained in custody. The only complaint raised by the petitioner is breathlessness and he was treated in Bengaluru Medical college and also in Victoria Hospital. Required tests were conducted and the report appears to be quite normal. Under such circumstances, the petitioner is not entitled to be enlarged on bail, either on merits of the case or on medical grounds. Hence, he prays for dismissal of the petition.
13. Learned State Public Prosecutor placed reliance on the decision in Hira Singh Vs Union of India 3, to contend that the paper strip containing pure LSD is not required to be excluded to quantify the contraband. He submits that the paper strip is the medium to hold LSD for circulation and also for consumption. He also placed reliance on the decision of the High Court of Judicature at Bombay in Narcotics Control Bureau Vs Anuj Keshwani and another4, to contend that even in case of LSD strips, the decision in Hira Singh (supra) is applicable and also to contend that even at this stage, the entire LSD strips seized under the mahazar could be ordered 3 AIR 2020 SC 3255 4 2021 SCC Online Bom 4548 11 to be sent for testing. Accordingly, he prays for dismissal of the petition.
14. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the petitioner is entitled to be enlarged on bail under Section 439 of Cr.P.C.?"
My answer to the above point is in 'Negative' for the following:
REASONS
15. As per the facts narrated in the complaint, the parcel consigned from Poland addressed to one Madan M was received in the Foreign Post Office, Chamarajpet, Bengaluru and it was containing 1120 paper strips, weighing 15 grams, suspected to be LSD strips. The ground test gave positive result for LSD. The petitioner came to collect the parcel referring himself as the addressee - Madan M. Hence it is contended that the petitioner procured commercial quantity of LSD from Poland and thereby committed the offence. 12
16. Learned senior advocate raised two important points i.e., (i) the weight of the paper strip is to be excluded in determining the total quantity of the contraband as even as per the recommended methods for testing LSD issued by United Nations, the total weight of LSD per strip could only be 30-50 micrograms and (ii) all those 1120 paper strips suspected to be containing LSD, should have been sent for testing as it is the opinion of the expert as deposed by the Assistant Director of FSL, Bengaluru.
17. Learned senior advocate placed reliance on two decisions of the Co-ordinate Bench of this Court in Keerthan Shetty (supra) and in Amartiya Rishi (supra), wherein, the reliance was placed on the manual for use published by United Nations and the weight of LSD in each strip was taken into consideration as typical dose of 30-50 micrograms excluding the weight of paper strip to form an opinion that the bar under Section 37(1)(b)(ii) of the NDPS Act is not applicable.
18. It is pertinent to note that the decision of Full Bench of the Hon'ble Apex Court in Hira Singh (supra), considered the questions referred by the Bench viz 13
(a) Whether the decision of Hon'ble Apex Court in E Micheal Raj Vs Intelligence Officer, Narcotic Control Bureau [(2008) 5 SCC 161], requires re-consideration having omitted to take note of entry No.239 and Note 2 (two) of the Notification dated 19.10.2001 as also the interplay of the other provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") with Section 21?
(b) Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment ?
(c) Does the NDPS Act permit the Central Government to resort to such dispensation?
(d) Does the NDPS Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug contend of the specified narcotic drug?
(e) Whether Section 21 of the NDPS Act is a stand along provision or intrinsically linked to the other provisions dealing with "manufactured drug"
and "preparation", containing any manufactured drug?"14
These references were answered as under:
"(I).The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;
(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;
(III). Section 21 of the NDPS Act is not stand-
alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;
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(IV). Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act.
Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification stand dismissed."
19. Even though, the drugs involved in the cases either in E Micheal Raj (supra) or in Hira Singh (supra) were Heroin, the consideration and the discussion does not restrict only to Heroin, but it is generally to the Narcotic Drugs or Psychotropic Substances referred to under the NDPS Act. Under such circumstances, the contention of the learned senior advocate that it is applicable only to Heroin and not to LSD strips, cannot be accepted.
20. The Hon'ble Apex Court considered the contention taken by the Union of India that in E-Michael Raj (supra), the Court had focused on the interpretation of Section 21 of NDPS Act without giving effect to the purport of the said provision and held that, only the content of narcotic drugs or psychotropic substance shall be taken into consideration to 16 constitute the quantity of drug is wrong as the same is contrary to the entire scheme of NDPS Act and its object and purpose. The Hon'ble Apex Court after considering the object with which NDPS Act was enacted and also the statement of Objects and Reasons of the Amending Act of 2001 highlighted the intention of the legislature, which was to rationalize the sentence structure so as to ensure that the drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, while the addicts and those who commit less serious offences are sentenced with less severe punishment. Under such circumstances, it is held that rate of purity is irrelevant and had not accepted the contention of the respondent that it is the intention of the legislature to levy punishment based on the contents of offending drug in the mixture and not on the weight of the mixture as such.
21. The Hon'ble Apex Court also noted that illicit drugs are seldom sold in a pure form, but they are almost always adulterated or mixed with other substance, which could allow users to take drug faster and get a big punch sooner. There is reference to heroin mixed with caffeine, aspirin, crushed tablets, brown sugar to quote few examples 17 to show and demonstrate that even mixture of narcotic drugs or psychotropic substance is more dangerous. Thus it was held that what is harmful or injuries is the entire mixture/tablets with neutral substance with narcotic drugs and psychotropic substance. It is also held that if it is to be interpreted otherwise, the very intention and object and purpose of the enactment of NDPS Act will be defeated.
22. It is to be noticed that even though the co- ordinate Benches of this Court accepted the contention that the weight of paper strip is to be excluded and only 30-50 micrograms of LSD per strip is to be taken into consideration to determine the quantity under Section 21 of the NDPS Act, there is no reference nor there is any distinction with the decision of the Full Bench in Hira Singh (supra) and in all probability, this decision was never brought to the notice of the co-ordinate Benches of this Court.
23. In the Country as a whole, and in the State of Karnataka in particular, the contraband including LSD are being seized in large quantities. There is alarming rise in cases registered under the special enactment. Still it may 18 only be the tip of the iceberg and the real deal must be much more. However, consumption of synthetic drug has increased by many fold. Particularly, the youngsters are being targeted by the unscrupulous drug peddlers and thereby posing threat to the health of the society as a whole. Taking into consideration the menace which is being caused by these drugs, NDPS Act was enacted with an intention to rationalize the sentence structure and to ensure that the drug traffickers who are trafficking significant quantity of drugs are punished with deterrent sentence, while the addicts and those who commit less serious offence are sentenced with lesser punishment. Therefore, the punishment under the statute depends upon the quantity of the offending drug. The Notification appended to the Act describes various quantities to constitute the small or commercial quantity for different types of drugs depending upon its effect on an individual on its consumption. Therefore, obviously the substance which is meant for circulation, sale and for consumption is to be taken into consideration and not the pure drug as contended by the learned senior advocate.
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24. The contention of the learned senior advocate that the pure LSD may be a small droplet on the strip and therefore, as per United Nations - Recommended Methods for testing LSD, only 30 to 50 microgram per strip is to be taken into consideration for the purpose of determining its quantity cannot be accepted. In this recommendation, the United Nations refers to the contents of the LSD tablets and also to the paper dosage which has become more common in 1980's, where the pure LSD was dropped on the paper, ensuring more uniform product. Under such circumstances, it is observed that typically those sheets are perforated into squash of approximately 5 mm in size, each containing a typical dose of 30 to 50 micrograms of LSD. The ease with which such LSD solution can be applied to variety of subtracts was also considered to conclude that great majority of types of LSD dosage forms found in the illicit market are either paper dosage units or small tablets similar to micro dots or in gelatin form. The recommendations never say that the weight of each strip is to be taken at 30 to 50 mm only for the purpose of determining the quantity of the drug.
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25. The High Court of Judicature at Bombay in Anuj Keshwani (supra), while referring to the decision of Hon'ble Apex Court in Hira Singh (supra) held in para 30 as under:
"30. LSD put on a blotter paper, is capable of being swallowed, after placing it on the tongue. It is thus evident that the blotter paper is capable of being swallowed and is used as one of the methods for consuming LSD. Merely because the said blotter paper can be licked or put in a glass of water, does not necessarily mean that the blotter paper has to be excluded whilst determining the LSD on the blotter paper. Take for example, a capsule containing a drug or a psychotropic substance. The said capsule is capable of being opened and its contents, can either be consumed directly or added to any other mixture/swallowed with the cover. The fact remains that if a drug is put SQ Pathan 41/53 wp- 2077-2021.doc in a capsule, the same will have to be weighed as a whole. It is important to bear in mind the legislative intent, the object and reasons, and, the preamble of the NDPS Act, whilst considering, whether LSD is to be weighed sans the blotter paper. As noted in Hira Singh (supra), it was never the intention of the legislature to exclude the quantity of the neutral substance and to consider only the actual content 21 by weight of the offending drug. It is also pertinent to note that illicit drugs are seldom sold in a pure form. They are always adulterated or cut with other substance or put in a gelatin or blotter paper, as in the present case. Heroin, for example, is capable of being mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous. The blotter paper impregnated or ingested with LSD is, in a sense, a dose. The blotter paper is made out of an extra-
absorbent material and generally includes ingredients such as rice, cotton and even flax seed, thus, making it edible and as such, a substance in a dosage form/a mixture for consumption. It is thus evident, that a blotter paper, a carrier material, ingested with LSD, forms an integral part of the ingestion by the user of the drug and thus, constitutes preparation of the SQ Pathan 42/53 wp-2077-2021.doc psychotropic substance i.e. LSD, which is capable of being consumed, and as such, forms a substance in a dosage form or a mixture. Infact, at the first blush, one may ask 'how paper' ?, but once it is accepted that a blotter paper ingested/impregnated with LSD, is used as a medium of consumption, the same will squarely fall within the definition of the term 'preparation', 22 as defined in Section 2 (xx) of the NDPS Act. Like cutting agents used with other drugs that are ingested, the blotter paper, gelatine capsules or sugar cubes carrying LSD can be and often is ingested with the said drug. The object of the NDPS Act is to deal with the street weight of the drug in the diluted form in which they are sold and not only the weight of the active component. Thus, having regard to the dictum of the Apex Court in Hira Singh (supra), and the legislative intent of the NDPS Act, the blotter paper impregnated or ingested with LSD will have to be considered as a whole, whilst determining whether the quantity is a small or commercial quantity."
(Emphasis supplied)
26. It also referred to the decision of this Court in Rijesh Ravindran Vs Union of India5, wherein, relying on the decision in Hira Singh (supra), it is held that 180 blots of LSD seized from the possession of the accused therein and found that the same was commercial quantity. After considering various judgments, it has come to the conclusion that the blotter paper forms an integral part of LSD, when put on a blotter paper for consumption and as such the weight of 5 MANU/KA/4227/2020 23 the blotter paper containing LSD will have to be considered to know the actual weight for the purpose of determining small or commercial quantity of the offending drug.
27. Therefore, the contention taken by the learned senior advocate that only 30 to 50 mm per strip is to be taken into consideration to determine the quantity of the drug for the purpose of Section 21 of the NDPS act, cannot be accepted.
28. It is also pertinent to note that a similar question had arisen before the co-ordinate Bench of High Court of Bombay at Goa in H S Arun Kumar Vs The State of Goa6 as to whether the combined weight of LSD and the blotter or just the weight of the pure LSD is relevant to determine the small or commercial quantity and the consequent punishment under NDPS Act. The learned Single Judge formulated the following questions for reference to the Division bench for consideration:
(i) Whether blotter paper forms an integral part of the LSD (drug), when put on it for consumption and, as such, weight of blotter paper 6 2022 Live Law (Bom) 432 24 containing LSD will have to be considered for the purpose of determining small or commercial quantity of the offending drug under Narcotic Drugs and Psychotropic Substances Act, 1985?
(ii) Whether blotter paper that carries the drug (LSD drops) which facilitate its consumption, as a whole is preparation or mixture or neutral substance within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985?
29. These questions were referred to the Division Bench and the Division Bench considered the subject exhaustively by referring to all the relevant provisions of law and the decisions rendered at various Courts including the Courts at United States. It has also referred to the decision of the Hon'ble Apex Court in Hira Singh (supra) and held as under:
"113. For all the above reasons, we hold that a blotter paper forms an integral part of the LSD (drug) when put on it for consumption and, as such, the weight of the blotter paper containing LSD will have to be considered for determining small or commercial quantity of the offending drug under the NDPS Act, 1985. Further, we also hold that the blotter paper that 25 carries the drug (LSD drops), which facilitates its consumption as a whole, is a preparation, mixture, or neutral substance within the meaning of the NDPS Act, 1985.
114. Since the referral order refers to LSD as a drug, we have continued to adopt that term when answering the two questions referred to. However, in terms of Section 2(xxiii) of the NDPS Act, there is no dispute that LSD will have to be classified as a psychotropic substance and not a drug."
30. In view of the discussions held above, I do not have any hesitation to hold that the strip or the blotter paper on which LSD drops were put, are integral part of LSD and the same cannot be separated for considering the small or commercial quantity of the drug under NDPS Act and therefore, the contention raised by the learned senior advocate that only the pure LSD i.e., at 30 to 50 micrograms per strip, is to be taken into consideration is to be rejected.
31. The second question raised by the learned senior advocate with regard to the requirement of sending of all the strips for testing without restricting only the sample strips 26 being sent to FSL examination, is based on the deposition of the Assistant Director of FSL, Bengaluru.
32. In Rijesh Ravindran (supra), this Court considered that the FSL report obtained from the chemical analyzer was not clear as to whether every LSD strips were checked or whether only one sample test was done, it was felt that the test should have been conducted on individual strips to ascertain whether it had in fact contained LSD or not. Since NDPS Act prescribes stringent punishment in case of contraband which is of commercial quantity, examination of each strip was felt necessary. However, it was also observed that even if the said exercise of examining each of the strip is undertaken, the whole quantity of LSD with blot paper is to be taken into consideration whilst considering small or commercial quantity and therefore, directed the Investigating officer to send the LSD blotter paper to FSL for examination and report.
33. Even though the Assistant Director of FSL, Bengaluru while deposing before a Sessions Court, Bengaluru deposed that each strip will have to be subjected for analysis 27 to ascertain the presence of LSD, that has no other basis either under the statute or under the Rules. Even the United Nations Recommendations do not contain such suggestion. However, taking into consideration the severity of the punishment, the Investigating Officer may resort to get a report subjecting the LSD strips seized to the chemical analysis which will answer the question as to whether all the strips were containing LSD and that will also help in quantifying the contraband which the accused was in possession of. This exercise may be necessary where the contraband was not uniform and where it may be difficult to draw homogenous and representative samples from the bulk.
34. It is also pertinent to note that Section 52-A of the NDPS Act prescribes the manner and procedure of sampling. However, sub-section (1) authorizes the Central Government to prescribe by Notifications the procedure to be followed for seizure, storage and disposal of the drugs and psychotropic substances. The Central Government in exercise of the power vested in it, issued Standing Order No.1 of 1989 prescribing the procedure to be followed while conducting seizure of the contraband. Before issuing this Notification, the 28 Central Government has issued Standing Order No.1 of 1988. Two more Standing Orders i.e., during 2007 and 2015 are also issued, which deals with disposal and destruction of contraband. However, the procedure for drawing sample of narcotic drugs or psychotropic substances has laid down in Standing Order No.1 of 1988 issued by the Narcotics Control Bureau on 15.03.1988. This Standing Order makes its clear that the seized drugs during packages or containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. It also makes it clear that in case of seizure of single package, one sample in duplicate is to be drawn. However, it is suggested to draw one sample in duplicate from each packet, where there are more than one package. Similar is the procedure suggested in Standing Order No.1 of 1989. In all such Standing Orders, it is highlighted to ensure that representative samples in duplicate are to be taken from each package. Therefore, I do not find any merits in the contention taken by the petitioner that each and every strip of LSD is to be forwarded for chemical examination. But on the other hand, drawing of representative sampling in duplicate would meet the 29 requirement of law. Therefore, I do not propose to direct the Investigating Officer to adopt such a procedure in the absence of any such requirement prescribed anywhere. It is for the Investigating Officer to take a decision and to justify the same during trial.
35. Learned senior advocate contended that even if the accused is not entitled for grant of bail on merits, he is entitled to be enlarged on bail on medical grounds. Learned senior advocate referred to the order sheet maintained by the Trial Court to contend that the petitioner had complained of his ailment even before the Special Court. The order sheet of the Trial Court dated 23.06.2022 discloses that the petitioner had complained of suffering from severe ailments and the Superintendent of Prisons was directed to provide suitable medical treatment. Later the medical report pertaining to the accused was also called for.
36. The petitioner has produced some of the medical records including discharge summary to contend that he is having serious health issues. Those medical records pertain to the years 2000, 2001 with few prescriptions for the years 30 2008, 2010 and 2011. Considering these aspects of the matter, the Superintendent of Central prison, Bengaluru was directed to produce the medical records along with opinion of the Medical Officer about his health condition at present. Accordingly, the Superintendent of Central prison produced the medical records along with the opinion of Chief Medical Officer, Central prison, Bengaluru. The Medical Officer referred to the admission of the petitioner to the private hospital on 04.12.2000, 25.01.2001 and also the advise given by the Medical officer at Victoria Hospital Bengaluru on 27.07.2022 and concluded by saying that patient is suffering from breathlessness due to previous respiratory illness and surgery and he is on Nebulization and medication at Prison hospital. It is also stated that he requires investigation and treatment at specialized centre. Being not satisfied with the report of the Chief Medical Officer, as his opinion that the petitioner requires investigation and treatment at Specialized Centre was not supported by any medical records, the Chief Medical officer was directed to be present before the Court along with up-to-date medical records pertaining to the petitioner maintained in the prison hospital to enable him to 31 explain the condition of the petitioner and also about non availability of required medical records to form such opinion. Accordingly, the Chief Medical Officer appeared before the Court and produced the medical records pertaining to the petitioner.
37. However, learned senior advocate at this stage submits that he is not pressing his prayer for release of the petitioner on medical grounds and that liberty may be reserved in favour of the petitioner to move the Trial Court to pass appropriate orders depending upon the health condition of the petitioner. Hence, I do not propose to analyze the health report pertaining to the petitioner in detail.
38. The discussions held above discloses that there are strong prima facie materials against the petitioner for having procured the LSD strips of commercial quality. Therefore, Section 37 (1) (b) (ii) of NDPS Act comes into operation against the petitioner, which bars enlarging him on bail, unless the twin conditions mentioned therein are satisfied. The materials on record do not propose to form an opinion that the petitioner is not guilty of the offence nor that 32 the petitioner may not commit any offence while on bail. In such an event, the petitioner is not entitled for grant of bail. Hence, I proceed to pass the following:
ORDER The criminal petition is dismissed.
Sd/-
JUDGE *bgn/-