While Quantifying LSD, The Weight Of Paper Containing Dried LSD Drops Can't Be Counted: Bombay High Court

The Bench of Justice Sandeep K. Shinde further observed that the paper, which releases the drug on swallowing, only carries the drug and facilitates its consumption and thus, "the paper with LSD drops, as a whole, is neither 'preparation' nor a 'mixture' within the meaning of the NDPS Act."

The matter before the Court

The Bail Applicant Hitesh Malhotra was arrested by Vartaknagar police in Thane in June 2019, after he was allegedly found in possession of 10 square pieces of papers containing LSD drops of LSD solutions.

Subsequently, during the house search, 13 pieces of brown colour papers containing LSD drops of LSD solution were recovered.

[NOTE: In its pure state, LSD is a white, odourless substance. However, LSD is so potent that an effective small dose of pure drug, is virtually invisible. As a result, it is usually diluted in other materials. In this case, the drug was found in the form of drops, dried onto [10+13 = 23] pieces of papers.]

Additionally, 970 gms (570+400 gms) of charas, kept in the cupboard was recovered.

Arguments put forth

The Thane sessions court refused him bail on the ground that the quantity of the contraband material allegedly recovered from him was 'commercial' and so he moved the High Court.

The Applicant sought bail on the ground that the quantity of contraband i.e. LSD and charas allegedly found and recovered from him and his house was less than the, 'commercial quantity', and therefore rigours of Section 37 of the NDPS Act, are not applicable to the facts of this case.

It was contended before the Court that the total weight of the 10 pieces recovered from him was 140 milligram, but the weight of the other 13 papers (allegedly found during house search) was mentioned nowhere.

However, on the basis of chemical analyser's report, the Counsel for the Applicant claimed that the actual quantity of LSD allegedly recovered from him was 0.4128 milligram, much smaller than the commercial quantity (0.1 gm).

It was lastly argued that the weight of 'LSD drops' and 'charas' (970 gram), allegedly recovered was less than 'commercial quantity' and therefore there is no impediment in releasing the applicant on bail, in as much as, rigours of Section 37 are not applicable to the facts of this case.

[NOTE: As per the NDPS Act, small quantity in relation to LSD is 0.002, whereas, commercial quantity is 0.1 gms and sofar as charas is concerned, commercial quantity is 1 kg.]

On the other hand, it was argued by the State, that since dried LSD drops of LSD solution, cannot be segregated or separated from the papers, it amounts to a 'mixture' and therefore the weight of the paper is to be counted with 'LSD dots/drops' for determining the quantity of drug which was more than 0.1 gram.

Court's order

The Court was of the opinion that 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.

The Court ruled that the weight of the paper, used to carry LSD drops cannot be counted while determining the quantity of the contraband material, whether it is small, intermediate or commercial (under the NDPS Act).

The Court further noted,

"The Chemical Analyser's report shows the quantity of LSD drops solution was 0.4128 milligrams, which was below 0.1 gm of commercial quantity. Therefore, rigours of Section 37 of the NDPS Act, are not applicable to the facts of this case."

Case title - Hitesh Hemant Malhotra v. State of Maharashtra [Criminal Bail Application NO. 352 OF 2020]

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