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(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 BAIL APPL. NO. 2530 OF 2022 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 BAIL APPL. NO. 2530 OF 2022 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, Section 50 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 Section 50 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 Section 50 of the NDPS Act.

8. As to the question whether the quantity involved is a commercial quantity or not, the Mahazar would show BAIL APPL. NO. 2530 OF 2022 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 petitioner, it was observed as follows:

"8. I have perused the First Information Report, Recovery Panchanamas and Chemical Analyser's report. At the outset, it may be stated that the most common form of LSD is drop of LSD solution dried onto piece of paper or gelatin sheet, pieces of blotting papers which releases the drop when swallowed/consumed. In this case, drug was found in the form of drops dried onto 23 pieces of papers. Thus, process of drying LSD solution on a piece of paper, merely facilitates consumption of drug. This process neither changes the substance of the drug or its chemical composition. It is argued by the State, that since dried LSD drops of LSD solution, cannot be segregated or separated from the papers, it amounts to a 'mixutre' and therefore the weight of the paper is to be counted with 'LSD dots' for determining the quantity of drug which was more than 0.1 gram, The learned APP relies on Entry-239 of the Table and Footnote- (4) appended thereto of the NDPS Act. Entry No.239 and Footnote-(4) reads as under:

9. In my view, though after swallowing piece of paper, which causes release of drug but since that paper only carries drug and facilitates its consumption, the paper with LSD drops, as a whole, is neither "preparation", within the meaning of Section 2(xx), nor a "mixture" within the meaning of the NDPS Act. So far as the judgment of the Hon'ble Apex Court in the case of Hira Singh (supra) is concerned, issue therein was, whether mixture of narcotic drug or psychotropic substances with one or more neutral substances, quantity of neutral substances can be excluded while determining the small or commercial quantity of narcotic drug and psychotropic substances. However herein, the papers containing dried LSD drops of LSD solution, not being a mixture, and the paper being not a neutral substance, judgment of the Apex Court, has no application to the facts of this case.

9. The learned Judge, as it appears from the impugned order, has accounted weight of papers "while calculating and determining quantity of the BAIL APPL. NO. 2530 OF 2022 LSD as a "commercial quantity". In addition, while holding quantity of charas recovered from the applicant was 'commercial quantity', is equally incorrect because charas allegedly recovered from the applicant was 970 gms i.e.less than 1 kg.

10. Thus in consideration of the facts of the case, the findings of the learned Judge that weight of the paper containing dried LSD drops of LSD solution is required to be accounted while determining its quantity; whether small or otherwise is incorrect. In this case, the Chemical Analyser's report, shows quantity of LSD drops solution was 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Therefore, rigors of Section 37 of the NDPS Act, are not applicable to the facts of this case.