Case Note & Summary
The Narcotics Control Bureau (NCB) seized various contraband from respondent No.1 Anuj Keshwani's residence, including 31 blotter papers containing Lysergic Acid Diethylamide (LSD), weighing 0.62 grams together. After the FSL report confirmed the substance as LSD, the NCB filed a complaint in the Special NDPS Court. The respondent, seeking to ascertain the exact weight of the pure LSD drug, applied for retesting of the sample, arguing that the blotter paper's weight should be excluded from the total weight. The Special Judge, relying on a previous High Court order in Hitesh Hemant Malhotra, directed the NCB to send the sample for retesting to determine the weight of LSD sans the blotter papers. The NCB, aggrieved by this order, filed the present writ petition before the Bombay High Court. During investigation of CR No.16/2020, a voluntary statement led to the respondent, and a house search yielded 585 gms of hashish, 270.12 gms of ganja, 3.6 gms of THC, and 0.62 gms of LSD on 31 blotter papers. The seizure panchnama was drawn on 6 September 2020. The FSL report did not specify the separate weight of the LSD drops; it only gave the combined weight of the blotter papers with the LSD. The respondent contended that the weight of the blotter paper, a carrier material, should not be considered for determining whether the quantity is 'small', 'intermediate', or 'commercial' under the NDPS Act's notification. The central question of law was whether blotter paper impregnated with LSD forms an integral part of the LSD drug for the purpose of quantifying the substance under the NDPS Act. This determination is crucial because the quantum of punishment depends on whether the drug falls under small quantity or commercial quantity, and the weight of the carrier material could significantly increase the total weight, potentially altering the offence category. The learned ASG for NCB submitted that LSD is typically consumed by swallowing the blotter paper, making the paper part of a ‘preparation’ as defined under Section 2(xx) of the NDPS Act. He relied on the Supreme Court’s decision in Hira Singh & Anr. v. Union of India & Anr., which discussed drug consumption and mixtures, and on foreign precedents such as the US Supreme Court in Chapman v. United States (1991) and the Australian case Finch v. The Queen, both holding that blotter paper is part of the LSD mixture. He argued that the previous High Court order in Hitesh Malhotra, which had directed similar retesting, was per incuriam as it failed to consider the relevant provisions. He also cited orders of the Karnataka and Goa High Courts rejecting bail in similar LSD blotter cases following Hira Singh. The respondent’s counsel, however, contended that the US sentencing scheme is not comparable to the NDPS Act, which specifically defines ‘manufacture’ and ‘preparation’. He pointed out that Chapman’s ruling contained internal contradictions about whether LSD mixes with the paper or retains separate identity, and that LSD is often consumed by licking the paper and discarding the blotter, meaning the paper is not ingested and its weight should not count. He relied on the Standing Order No. 2941(E) dated 18 November 2009, which amended the quantity table, arguing it clarifies that the weight refers to the entire mixture or dosage form, but where the carrier is not consumed, its weight should be excluded. He urged that the domestic law’s definitional clarity should prevail over foreign judgments. Thus, the High Court was tasked with resolving the conflict between the ‘preparation’ definition and the practical mode of consumption, and the applicability of standing orders. The matter was reserved for judgment on 3 September 2021 and pronounced on 29 November 2021 (Paras 1–9).
Headnote
A) Narcotic Drugs - Weight Determination - Inclusion of Carrier Weight - NDPS Act, 1985, Ss. 2(x), 2(xx) - The primary issue was whether blotter paper used to carry LSD is integral to the drug's weight. NCB argued that blotter paper is consumed, making it part of the preparation/mixture as per Hira Singh and US Supreme Court in Chapman. Respondent argued that LSD on blotter paper can be consumed by licking, after which paper is discarded, so its weight should not be counted, and that domestic law definitions should prevail over US guidelines (Paras 5-9). B) Statutory Interpretation - Standing Orders and Per Incuriam - NDPS Act, 1985; Standing Order No. 2941(E) dated 18.11.2009 - Respondent relied on the 2009 amendment to the quantity table, arguing it clarifies that weight refers to the drug in dosage form or mixture but carrier weight may be excluded. NCB argued that the earlier High Court order in Hitesh Malhotra was per incuriam for not considering the Act's definitions. The Court considered the interplay between statutory definitions, standing orders, and precedent (Paras 5-9).
Issue of Consideration
Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption and consequently whether its weight should be included in determining the quantity of the drug under the Narcotic Drugs and Psychotropic Substances Act, 1985; and whether the Special Court's order directing retesting of LSD sample to ascertain weight sans blotter paper was legal.
