Karnataka High Court
Syed Fahad @ Fahad vs State Of Karnataka 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.12162/2022
BETWEEN:
SYED FAHAD @ FAHAD
S/O SYED IMTIYAZ
AGED ABOUT 24 YEARS
R/AT NO. 06
BORDI LAWN ROAD
FRAZER TOWN
BANGALORE - 560 005
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE)
... PETITIONER
(BY SRI: HASHMATH PASHA, SENIOR COUNSEL FOR
SRI: KARIAPPA .N.A. BY H.P. UNIQUE & CO. )
AND:
STATE OF KARNATAKA
BY BANASAWADI POLICE STATION
BANGALORE - 560 043
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
HIGH COURT OF KARNATAKA - 01.
... RESPONDENT
(BY SRI: H.S. SHANKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.468/2022 OF BANASWADI P.S., BENGALURU CITY FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 8(C), 22(B) AND (C) OF
NDPS ACT, WHICH IS PENDING ON THE FILE OF THE HONBLE
XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR NDPS CASES, BENGALURU CITY.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.01.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The petitioner-accused No.3 is before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.468 of 2022 of Banaswadi Police Station, Bengaluru City, pending 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(b) and (c) of Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), on the basis of the first information lodged by the informant R Deepak.
2. Heard Sri Hashmath Pasha, learned senior advocate for Sri N A Kariappa, learned counsel for the petitioner and Sri H S Shankar, learned High Court Government Pleader for the respondent -State. Perused the materials on record.
3. Learned senior advocate for the petitioner submitted that the petitioner is arrayed as accused No.3. He is innocent and law abiding citizen. He has not committed any 3 offences as alleged. He has been falsely implicated in the matter without any basis. He was apprehended on 19.10.2022 and since then he is in judicial custody.
4. Learned senior advocate submitted that CCB said to have held the raid and recovered contraband from accused Nos.1 to 3. It is stated that 20 grams of MDMA along with other drugs said to have been seized from their possession. But the requirement under Section 50 of NDPS Act was never complied with. This is the mandatory provision of law and non-compliance of the same would vitiate the entire seizure. The petitioner was never taken to the nearest Gazetted Officer as required under Section 50 of the NDPS Act. But on the other hand, the Assistant Commissioner of Police (for short 'ACP'), who was one of the person in the raiding party has acted as a Gazetted Officer and it is stated that in his presence the contraband was seized. The petitioner was said to have been given an option to be searched by CCB Inspector or by the Magistrate or Gazetted Officer. The ACP again gave similar option, but finally stated that he is also a Gazetted Officer and proceeded to search the accused. The whole 4 procedure adopted by the Investigating Officer has vitiated the search and seizure said to have been carried on.
5. Learned senior advocate placed reliance on the decisions in State of Rajasthan Vs Parmanand and another 1 and Vijaysinh Chandubha Jadeja Vs State of Gujarat 2 to contend that Sections 42 and 50 of NDPS Act are mandatory to be complied by the Investigating Officer. The failure to comply would negate the entire seizure of the narcotic drugs and to contend that the Police Officer who is a party to the raid cannot act as a Gazetted Officer, who is required to be an independent person. He also placed reliance on the decision of this Court in Thimmaiah A M Vs State of Karnataka 3 in support of his contention.
6. Learned senior advocate further submitted that the MDMA referred to by the Investigating Officer is said to have been recovered from the pant pocket of the petitioner. Even after lapse of more than 100 days, the FSL report is not produced. There is absolutely no material to contend that the substance seized was in fact MDMA. Methamphetamine and 1 (2014) 5 SCC 345 2 (2014) 5 SCC 345 3 Crl.P.275/2023 DD 24.01.2023 5 Amphetamine are the synthesis and MDMA will be its pure form. As per the seizure mahazar, the colour of contraband was crystal but when heated, it turned into brown colour. As per the United Nations Recommended Methods for identification and analysis of Amphetamine and Methamphetamine refers to the colour test. When the substance will have originally crystal colour and turns into brown when heated cannot be termed as MDMA. As per the recommendation, Amphetamine will be of orange colour and Methamphetamine will be slightly blue, whereas MDMA will have dark blue or black colour, which will turn into deep blue. Therefore, prima facie, the contraband seized was not MDMA.
7. Learned senior advocate further contended that the contraband that was seized from the possession of accused Nos.1 and 2 cannot be taken into consideration as the contraband seized from the possession of the present petitioner, since it was seized individually. The petitioner cannot be made liable for the substance said to have been in possession of the other accused.
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8. Learned senior advocate further contended that the accused is in judicial custody for morethan 105 days. Even the FSL report is not received to confirm the identification of the contraband said to have been seized. Speedy trial is the right of the accused. When there is failure to provide the test report as required under Standing Order No.1/88, the accused is entitled to be enlarged on bail. The delay in furnishing the FSL report will infringe the right of the accused to his life and liberty under Article 21 of the Constitution of India. He placed reliance on the decision of the Co-ordinate Bench of this Court in Naveen Kumar Vs State of Karnataka and another 4.
9. Learned senior advocate further contended that even if the LSD strips said to have been recovered is to be taken into consideration, the weight of such LSD strips was only 0.70. As per United Nations Recommended Method for testing Lysergide (LSD), each strip will contain a typical dose of only 30 to 50 micrograms of LSD and generally it could be taken as each strip will have maximum 50 micrograms of LSD. If such guidelines are taken into consideration, the LSD 4 Crl.P.2731/2022 DD 22.04.2022 7 strips said to have been seized is of small quantity. He placed reliance on the decision of Co-ordinate Bench of this Court in Keerthan Shetty Vs State of Karnataka 5 and Amartiya Rishi Vs State of Karnataka 6, to contend that this Court has consistently held that when the quantity of LSD is taken as per the recommendations of United Nations, it constitutes small quantity.
10. Relying on all these materials and decisions, learned senior advocate contended that even though the petitioner was apprehended and detained in custody, till today there is no material to constitute the offence under any of the provisions of the special enactment. There are absolutely no material to contend that the petitioner was in possession of the commercial quantity of the contraband. Till today, the FSL report is not produced and the charge sheet is also not filed. Under such circumstances, detention of the petitioner in custody would amount to pre-trial punishment. 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 5 Crl.P.1104/2021 DD 19.03.2021 6 Crl.P.2044/2020 DD 21.04.2020 8 any of the conditions that would be imposed by this Court. Hence, he prays to allow the petition.
11. Per contra, learned High Court Government Pleader opposing the petition submitted that serious allegations are made against the petitioner for having committed the offences. He submitted that accused Nos.1 to 3 were caught red handed and 0.70 grams of LSD strips, 3.45 grams of MDMA ecstasy pills and 20 grams of MDMA crystals were jointly recovered from the possession of accused Nos.1 to 3. The seized contraband are of commercial quantity. There is a clear bar under Section 37(1)(b)(ii) of NDPS Act for grant of bail to the petitioner.
12. He further submitted that the procedure as contemplated under Section 50 of NDPS Act is followed in letter and spirit. The ACP who was the Gazetted Officer was not part of the raiding team. Under such circumstances, it cannot be contended that there is non-compliance of requirement of Section 50 of NDPS Act.
13. Learned High Court Government Pleader relied on the decision in Supdt., Narcotics Control Bureau, Chennai 9 Vs R Paulswamy 7, to contend that it would be too early to take into account and judge the matter regarding non compliance with the formalities during the bail stage and to contend that a finding regarding satisfaction of twin conditions under Section 37(1)(b)(ii) of NDPS Act was a sine-qua-non for granting bail.
14. Learned High Court Government Pleader further submits that MDMA crystals found in the possession of the petitioner which was weighing 20 grams is clearly of commercial quantity. The contraband was subjected to ground test by using the drug detection kit. Therefore, prima facie it is shown that the substance seized from the custody of the petitioner was MDMA. Hence, he prays for dismissal of the petition.
15. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
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(2000) 9 SCC 549 10 "Whether the petitioner is entitled for grant of bail under Section 439 of Cr.P.C.?"
My answer to the above point is in 'Negative' for the following:
REASONS
16. It is the specific contention of the prosecution that, on receiving credible information about sale of drug, the Police Inspector held a raid and accused Nos.1 to 3 were caught red handed. On enquiry, they said to have admitted that they were in possession of the contraband and the Investigating Officer appraised them of their right to be searched in the presence of Magistrate or Gazetted Officer. The accused preferred to be searched in the presence of a Gazetted Officer. It is thereafter, the ACP was called to the spot and again he appears to have appraised the accused regarding their right and also introduced himself as Gazetted Officer. Thereafter, the person of the accused was searched.
17. It is stated that accused No.1 was in physical possession of 25 LSD strips weighing 0.29 grams, accused No.2 was in possession of 25 LSD strips weighing 0.41 grams 11 and 7 MDMA ecstasy pills weighing 3.45 grams and accused No.3 was found in possession of MDMA crystals weighing 20 grams. The seizure mahazar specifically refers to the sample testing by using narcotic drugs detection kit and finding of positive test result for the contraband covered under the Act. Therefore, it is the contention of the prosecution that accused Nos.1 to 3 were in possession of commercial quantity of contraband for the purpose of selling and they have committed the offences as stated above.
18. Taking into consideration these facts and circumstances of the case, the contention raised by the learned senior advocate with regard to non-compliance of the requirements under Section 50 of NDPS Act by the Investigating Officer is to be considered. As per Section 50 of the NDPS Act, the authorized officer under Section 42 of the NDPS Act should take the accused to the nearest Gazetted Officer or to the nearest Magistrate, if the accused opt to be searched in their presence.
19. In the present case, the seizure mahazar discloses that such an option was given to the accused by the 12 authorised Officer and the accused have opted to be searched in the presence of the Gazetted Officer. The ACP was called to the spot, instead of taking accused Nos.1 to 3 along with the contraband to the Gazetted Officer. Even though it is contended that calling the Gazetted Officer to the spot was not the requirement of Section 50 of NDPS Act and the accused should have been taken to the Gazetted Officer, the same cannot be accepted at this stage. Calling the Gazetted Officer to the spot to enable the accused to be searched cannot be termed as non-compliance of Section 50 of NDPS Act. On the other hand, it could be accepted that there is substantial compliance of Section 50 of NDPS Act. The intention with which Section 50 of NDPS Act is enacted is to have credibility about the search and seizure that was held by the Gazetted Officer in the light of the fact that being in possession of contraband of the particular quantity would attract different punishment.
20. The next contention raised by the learned senior advocate is that, the ACP who acted as Gazetted Officer was from the raiding team and he is not an independent Gazetted Officer. The seizure mahazar discloses that the ACP was 13 never the part of the raiding team, but he was called to the spot only when the accused opted to be searched in the presence of the Gazetted Officer. The ACP has again given the option to the accused either to be searched in the presence of Magistrate or before the Gazetted Officer and he introduced himself as Gazetted Officer, for which it is stated that the accused have opted to be searched in his presence.
21. Learned senior advocate contended that when once the authorised officer has given the option to the accused to be searched in the presence of Gazetted Officer or before Magistrate, the ACP being the Gazetted Officer could not have given similar option once again. The Gazetted Officer may be in his anxiety to apprise the accused about their rights, might have explained that they are entitled to be searched in the presence of Gazetted Officer or Magistrate, but that will not take away the effect of compliance of the procedure as contemplated under Section 50 of NDPS Act. I do not find any merits in the contention taken by the learned senior advocate that any of these procedures followed either by Investigating Officer or by Gazetted Officer would vitiate the procedure under Section 50 of NDPS Act.
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22. This Court is still at the stage of considering the bail application filed by the petitioner. The prosecution has to prove the compliance of mandatory procedure as contemplated under the Act in letter and spirit during trial. The accused can cross examine the witnesses to get answers for all the questions as to why both the authorized officer and the Gazetted Officer have given such option to the accused. I am of the opinion that the procedure adopted in the present case is in substantial compliance of the legal procedure as contemplated under law.
23. The next contention raised by the learned senior advocate is that the ACP even though was not a party to the raiding team was from the Department and therefore, he is not an independent officer. The ACP was a Senior Police Officer and a public servant. Under Section 114(e) of the Indian Evidence Act, the official acts are presumed to be performed regularly, unless it is proved otherwise. This is premature to jump to a conclusion that the Police Officer was not either impartial or was partisan or to hold that the authorized officer and the gazetted officer have not followed 15 the procedure as contemplated under Section 50 of NDPS Act, when there is nothing on record to contend that there is blatant non-compliance of the procedure contemplated under law and when prima facie there is substantial compliance of such procedure. In this regard, it is relevant to refer to the decision of the Hon'ble Apex Court in Paulswamy (supra), wherein, the Hon'ble Apex Court categorically held that the presumption of law that the official acts have been performed regularly, could be rebutted only during trial.
24. Learned senior advocate placed reliance on the decisions of Parmanand (supra) and Vijaysinh Chandubha Jadeja (supra), to contend that there is non-compliance of Section 50 of NDPS Act. In both these cases, the Hon'ble Apex Court has considered the conviction of the accused after full fledged trial. In Parmanand (supra), it has considered the evidence of PW10 who was the Investigating Officer who produced the accused before PW5, the Gazetted Officer who was part of the raiding team. Under such circumstances, it was held that PW5 cannot be called as an independent officer, as he was part of the raiding team.
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25. Similarly, in Vijaysinh Chandubha Jadeja (supra), the five Judges Bench of Hon'ble Apex Court considered the reference as to whether Section 50 of NDPS Act cast a duty on the empowered officer to inform the suspect of his right to be searched in the presence of the Gazetted Officer or Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect is likely to be searched in the presence of Magistrate or Gazetted Officer are said to be due compliance with the mandate of the said section in the light of various decisions rendered by it earlier and held in paras 29 and 31 as under:
"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the 17 obligation of the authorised officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."
26. From the above, it is clear that the procedure contemplated under Section 50 of NDPS Act is mandatory in 18 nature. But the question as to whether or not the procedure contemplated has been followed and the requirement of Section 50 of NDPS Act had been met is the matter of trial. At this stage, when there are prima facie materials for having complied with the requirement of law, it cannot be concluded that there is non compliance of such requirement of law.
27. In Thimmaiah A M (supra), the co-ordinate Bench of this Court considered the contentions of the parties with regard to compliance and non-compliance of the procedures under Sections 42 and 50 of NDPS Act and categorically held that it is a matter which requires to be considered after full fledged trial. Therefore, this decision is of no help to the petitioner.
28. From the materials that are placed before the Court, 20 grams of MDMA crystals were seized from the possession of the petitioner. It is contended by the learned senior advocate that there are no materials placed to contend that the substance that was seized was MDMA. He referred to the recommended methods for identification and analysis of Methamphetamine and Amphetamine issued by the United 19 Nations, Office of Drugs and Crime. This is the manual issued for the use of National Drug Testing laboratories. One of the test to identify a particular substance by specific name is holding colour test. The technique and methods for such colour test are also recommended. The colour test results for most commonly encountered drugs to identify the substance with its colour are also given. The general note appended to the colour test results makes it clear that such colours described in the table are only subjective judgments and it is necessary for each analyst to test appropriate reference standards in order to ensure that he can recognize each colour test result. An advise is also given to carry out blank tests without any target substance to ensure familiarity with the colour of the reagent. In spite of that, it is stated that the positive results are only presumptive indication of the possible presence of a compound and therefore, it is mandatory for the analyst to confirm positive colour test for any legally controlled compound by the use of additional laboratory test. Therefore, the colour test referred to by the authorised officer referring to the original colour and the test result by using the drug detection kit at the spot, will only a primary evaluation 20 of the substance which is to be confirmed by the forensic science test in the laboratory. But the result of the test detection kit cannot be out rightly rejected at this stage.
29. If that procedure is adopted, none of the acts of the authorized officer could be accepted. If one start doubting each and every procedure adopted during search and seizure, it will be quite against the legal presumption under Section 114(e) of the Indian Evidence Act. Similarly, if at the time of considering the bail application of an accused, the substantial compliance of the procedure is to be ignored, that would be against the object with which the Act was enacted and definitely it would be against the spirit of law to curb the drug menace in the society. Of course, if the authorized officer has ignored the procedure contemplated under law and there is blatant violation of such procedural law while searching and seizing, definitely that is to be taken into consideration by the Courts as the right of an accused to his life and liberty as enshrined under Article 21 of the Constitution of India is paramount, but at the same time, when the procedure is substantially complied, the societal interest to be protected from such dangerous drug menace 21 will be paramount when the same is balanced with the individual right of an accused.
30. Learned senior advocate also placed reliance on the very same recommended methods for testing issued by the United Nations relating to LSD to contend that only 30 to 50 micrograms per strip is to be taken into consideration while determining the exact quantity of the LSD for the purpose of Section 21 of NDPS Act. He has also placed reliance on the decisions of the co-ordinate Benches of this Court in Keerthan Shetty (supra) and Amartiya Rishi (supra) to contend that what was seized was not commercial quantity, but much below the intermediary quantity or in other words it constitutes small quantity.
31. 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
(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 22 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?"
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 23 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;
(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.
24Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification stand dismissed."
32. 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.
33. 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 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 25 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.
34. 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 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 26 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.
35. 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.
36. 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 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 27 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.
37. 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 28 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.
38. 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 29 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 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 30 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', 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 31 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)
39. It also referred to the decision of this Court in Rijesh Ravindran Vs Union of India8, 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 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.
40. Therefore, the contention taken by the learned senior advocate that only 30 to 50 mm per strip is to be taken 8 MANU/KA/4227/2020 32 into consideration to determine the quantity of the drug for the purpose of Section 21 of the NDPS act, cannot be accepted.
41. 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 Goa9 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 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 9 2022 Live Law (Bom) 432 33 substance within the meaning of Narcotic Drugs and Psychotropic Substances Act, 1985?
42. 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 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.34
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."
43. 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.
44. The recommendation of United Nations refers to the LSD that is being circulated in the form of paper strips which states as follows:
"In the 1980's, paper dosage forms became much more common. However, unlike earlier paper forms, where the LSD was dropped onto the paper and which are still frequently encountered in several countries, the new paper dosage forms are produced by soaking preprinted paper in a solution of LSD, thereby ensuring a 35 more uniform product. Typically, these sheets are perforated into squares of approximately 5mm² in size each containing a typical dose of 30-50 micrograms of LSD. A variety of designs have been encountered on these sheets, ranging from abstract art to cartoon figures. Papers onto which LSD has been spotted are still frequently encountered in several countries.
At the present time, the great majority of the types of LSD dosage forms found in the illicit market are either paper dosage units, small tablets similar to the "microdots" and gelatin forms. The content of these forms is generally about 50 micrograms of LSD. Nevertheless, due to the ease with which LSD solutions can be applied to a variety of subtrates, other forms should not be discounted."
45. The reading of these paragraphs disclose that the United Nations is referring to LSD strips in which the LSD was dropped to make it easy for circulation and use, and it is also stated that the contents of pure LSD would be generally 50 microgram per LSD strip. This does not mean to say that only 50 microgram per strip is to be taken into consideration while determining the quantity of contraband under the Act. 36
46. The next contention raised by the learned senior advocate that the FSL report is not yet received and it was not produced along with the charge sheet. Therefore, the contention of the prosecution that the substance said to have seized from the possession of the petitioner may not be MDMS as claimed. In this regard, he places reliance on the decision of co-ordinate Bench of this Court in Naveen Kumar (supra). This Court considering the petition under Section 482 of Cr.P.C. filed by the accused seeking to quash the criminal proceedings on account of delay in receipt of DNA test report or to defer the trial till receipt of DNA test report. After considering various data collected regarding pendancy in various FSL and RFSLs in the State, some recommendations and directions were issued, wherein, it is observed that an accused has a right to an expeditious trial and the custody of accused cannot be extended merely on the ground that the FSL is unable to furnish the reports in time. It has also observed that the delay infringes the right to life of an accused under Article 21 of the Constitution of India and that the delay in providing FSL report cannot be countenanced. 37
47. In the present case, the date of offence is 19.10.2022 and on the same day the petitioner was apprehended. It is pertinent to note that it is not a case where there are absolutely no material to identify the substance as the drug or the contraband under the Act. Drug detection kit was used and the ground test was conducted at the time of drawing the panchanama. After investigation, the charge sheet is filed. There are prima facie materials to form an opinion that the substance seized from the physical possession of the petitioner was MDMA crystals. There are no reasons to form an opinion that the substance is either Methamphetamine and Amphetamine, as tried to be projected by the petitioner. The right of the accused for speedy trial is recognized in our system. But at the same time, what is the speed with which the trial should be held is also a matter to be considered. When we harp upon the forensic science laboratories in not furnishing the reports within the reasonable time, we ignore the practical difficulties that are being faced by the laboratories, such as, lack of sufficient number of forensic science laboratories and lack of sufficient number of scientific experts and other staff members to carry 38 out the required test and to submit the report. The same cannot definitely be a justification to drag on the trial indefinitely while the accused is languishing in prison. Even before or immediately after lapse of time prescribed for filing of the charge sheet for a given offence. The FSL report is to be received and the trial in the matter has to begin and to be concluded within the short period of time, is an ideal situation which is expected in a civilized society. But we cannot shut our eyes to the hard realities as stated above. If the delay caused is deliberate that has to be taken note of very seriously. If there are no other materials to identify the substance as narcotic drugs of any kind, except FSL report, then also there may not be any justification to detain the accused in custody.
48. When sufficient materials are placed before the Court which prima facie substantiate the contention of the prosecution at the initial stage of considering the bail application, I do not find any reason to accept the contention of the petitioner, that the FSL report is not filed by the Investigating Officer while filing the charge sheet and it is a ground for the accused to be enlarged on bail. If this 39 yardstick is adopted by the Courts, by and large no person accused of committing the offence under the special enactment could be detained in prison after expiry of certain specified dates, ignoring other prima facie materials that are relied on by the prosecution. Definitely it is not in the best interest of the society. One should keep in mind the object with which the NDPS Act was enacted. Each one of us know the menace that is being caused by Narcotics Drugs and Psychotropic Substances. This menace of drug may enter our house unknowingly, but its effect will be unimaginable. When the Court recognizes and respects the individual right to life and liberty as guaranteed under Constitution of India, it is the duty of the Court to recognize and respect the societal interest as well. The societal interest will always be paramount when compared to the individual right of a person.
49. Reliance was placed by the learned senior advocate for the petitioner on the Standing Instructions No.1/88 issued by NCB, New Delhi to contend that the said Instructions are not complied with and therefore, the petitioner is entitled to be enlarged on bail. The Standing 40 Instructions No.1/88 issued by NCB, New Delhi is basically the Instructions/Guidelines for the officers of NCB while investigating into the matter to bring about the uniformity in the procedure that are to be followed. It is only directory and not mandatory in nature. The provisions under NDPS Act do not require such compliance by the investigating authority. The Standing Order/Instructions/Guidelines cannot override the effect of the statute or it cannot impose some more conditions or requirements which are not there in the statute. NCB as guidelines to the Investigating Officer suggested to secure the FSL report within a maximum period of 30 days, only on the ground that the Courts may reject the prayer of the investigating authority to extend custody of the accused on the sole ground that the FSL report is not made available. It is under such circumstances, the Instruction in question was issued. The same cannot be relied on by the Court to enlarge the accused on bail, when the prosecution is relying on other materials to substantiate its contentions that the seized substance is in fact narcotic drugs or psychotropic substances.
41
50. In view of the discussions held above, I am of the prima facie opinion that the substance that was seized from the physical possession of the petitioner, in the presence of Gazetted Officer was MDMA crystals, which was weighing 20 grams and constitute commercial quantity under Section 21 of NDPS Act. Section 37(1)(b)(ii) of NDPS Act bars releasing the accused on bail when the offence in question is punishable under Section 21(c) of NDPS Act, unless twin conditions mentioned therein are satisfied i.e., firstly, the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and secondly, he is not likely to commit any offence while on bail.
51. On considering the materials referred to above, I do not find any reason to form an opinion that the accused is not guilty of an offence or to hold that he is not likely to commit any offence while on bail. On the contrary, there are prima facie materials to constitute the offences punishable under Sections 8(c), 22(b) and (c) of NDPS Act. Under such circumstances, the petitioner is not entitled for grant of bail. 42
52. In view of the above, I answer the above point in Negative and proceed to pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE *bgn/-