[NDPS Act] Combined Weight Of LSD & Blotter Relevant To Determine Small Or Commercial Quantity Contraband: Bombay High Court

The court passed the order on a reference by a single judge on whether LSD alone or the combined weight of LSD and blotting paper would be used to determine the weight the seized drug.

A division bench of Justices MS Sonak and Bharat Deshpande has held that the blotter paper facilitates LSD's consumption as a whole. Therefore, it is as a preparation, mixture, or neutral substance within the meaning of the NDPS Act. The weight of any drug includes the weight of the mixture or neutral substance, several judgements held.

LSD is a psychotropic substance as defined under Section 2(xxiii) read with Entry 4 in the Schedule to the NDPS Act. And according to a notification dated October 19, 2001, 0.002 gms of LSD is considered small quantity and 0.1gm is considered commercial quantity.

A single judge bench of Justice SK Shinde referred the matter after he held in Hitesh Hemant Malhotra vs. State of Maharashtra that only the weight of the pure LSD matters and the coordinate bench of Justice Revati Mohite Dere in Anuj Keshwani held that combined weight of the blotter impregnated with L.S.D. is determinative in such matters.

Advocate Rizwan Merchant submitted that Anuj Keshwani's judgement was premised on an incorrect assumption that consumers invariably swallow blotting paper and it was impossible to separate the drug from its carrier. However, he argued that once the consumer licks the LSD from the blotter, the paper becomes benign. Since there was a method to determine the exact contents of LSD from the blotter there was no need to consider the blotter's weight to decide it the drug quantity is small, intermediate or commercial.

ASG Anil Singh for the prosecution on the other hand relied on the Statement of Objects and reasons for the amendment Act 2016. Moreover the principles laid down in American and Australian judgements of Chapman or Finch would apply to the issue at hand and must be considered, given their persuasive value.

At the outset the court noted that the most common method of storing, transporting, concealing, selling, purchasing, consuming or otherwise dealing with LSD was impregnating it in a blotter. Such a blotter is not the usual ink blotter but an ultra-thin, ultra-absorbent blotter mostly made of rice, cotton, or flax seeds. This blotter is then placed below the tongue and mostly swallowed since LSD is extremely potent.

The court noted that in Hira Singh's judgement the court observed that illicit drugs are seldom sold in its pure form. It found that Merchant's contentions of the blotter being benign was without any evidence. Moreover, statements and objects of the NDPS Act amendment of 2014 clearly indicates that "preparation" defined under the Act includes a mixture.

The court agreed with the reasoning by Justice Dere in Anuj Keshwani's case. It said that the note below a 2001 Notification shows that quantities for a particular drug relate to the entire mixture.

"For all the above reasons, we hold that a blotter paper forms an integral part of the L.S.D. (drug) when put on it for consumption and, as such, the weight of the blotter paper containing L.S.D. will have to be considered for determining a 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 (L.S.D. drops), which facilitates its consumption as a whole, is a preparation, mixture, or neutral substance within the meaning of the NDPS Act 1985," the court held.

Case Title: H. S. ARUN KUMAR Versus THE STATE OF GOA

Citation: 2022 LiveLaw (Bom) 432 

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