Cites combined weight to be considered while determining quantity of drug under NDPS Act
PANAJI
The Bombay High Court at Goa has ruled that the blotting paper on which the psychotropic drug LSD was infused was an “integral part” of the drug and that “the weight of the blotter paper containing LSD will have to be considered for determining a small or commercial quantity of the offending drug under the NDPS Act, 1985.”
Disposing a “reference” a division bench of Justices M S Sonak and Bharat Deshpande said that the “weight of the blotter paper containing LSD will have to be considered for determining a small or commercial quantity of the offending drug under the NDPS Act, 1985” and 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.”
The matter was referred to the Bombay High Court at Goa by the Chief Justice of the Bombay High Court to determine “whether the combined weight of the 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 the NDPS Act, 1985.”
A reference was made to the Chief Justice after there were two contrary opinions expressed by single judge benches of the Bombay High Court -- in Hitesh Hemant Malhotra vs State of Maharashtra delivered by Justice S K Shinde, the High Court held that only the weight of the pure LSD matters whereas in Narcotics Control Bureau vs Anuj Keshwani and anr, Justice Revati Mohite Dere, held that the combined weight of the blotter impregnated with LSD is determinative in such matters.
“On a plain reading of the… definitions (definitions in the NDPS Act), it is apparent that the term "preparation", in relation to a narcotic drug or psychotropic substance, means not only any one or more such drugs or substances in dosage form or any solution but also a mixture, in whatever physical state, containing one or more such drugs or substances. Therefore, the contention that a preparation or mixture must contain two or more narcotic drugs or two or more psychotropic substances or a combination of a narcotic drug and psychotropic substance is untenable on a plain reading of the definition,” the High Court ruled.
“In the context of the definition of "preparation", the expression "mixture, in whatever physical state" cannot be ignored. This expression would include a mixture of LSD and blotter. Ultimately, there is no dispute that the LSD dissolved in a solution like alcohol is dropped on the blotter. The mixture of LSD on the blotter is then ingested. Therefore, the expression “in whatever physical state” cannot be ignored or rendered meaningless or redundant. The fact that the Legislature chose to use this expression expressly will have to be respected and given some meaning,” the High Court said in the judgement authored by Justice M S Sonak.
The weights of substances seized matters because the NDPS Act provides graded sentences for possession of small, intermediate and commercial quantities of narcotic drugs or psychotropic substances. Therefore, the penalties or the sentencing has a direct nexus with the amount of the contraband psychotropic substance.
Besides, Section 37 of the NDPS Act imposes certain limitations when granting bail for offences involving a commercial quantity of narcotic drugs or psychotropic substances. These limitations are in addition to those under the CrPC or any other law for the time being in force.
The judgement also referred to rulings from courts in the USA and other countries to observe that “practically, all the United States Circuit Courts of Appeals addressing this issue have dealt with the LSD on blotters and held that the weight of the entire substance or the combined weight should be used to determine the appropriate sentence and not just the weight of the pure LSD on the blotter.”
The most common method of storing, transporting, concealing, selling, purchasing, consuming or otherwise dealing with LSD is 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. Such a blotter impregnated with LSD is placed on or below the tongue, licked, and mostly swallowed or otherwise ingested. This is because a pure dose of LSD is exceptionally potent. Therefore, even a typical dosage is minuscule, i.e. in the range of 30 to 150 milligrams.
