Full Judgment Text
2020:BHC-AS:7724
Rane 1/12 BA-352-2020
Monday, 7.12.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 352 OF 2020
Hitesh Hemant Malhotra
Age : 39 years, R/a : Room
th
No.1703, 27 Floor, Dosti
Vihar, Vartaknagar, Thane.
(Thane Central Jail, Thane) ...Applicant
(Orig. Accused)
V/s.
State of Maharashtra
Through Vartak Nagar
Police Station, Thane … .Respondent
Mr. Suhas Oak i/by. Mr. Vinod Utekar,
Advocate for the applicant.
Ms. Prajakta P. Shinde, APP for State.
CORAM :- SANDEEP K. SHINDE, J.
RESERVED ON : 1ST DECEMBER, 2020.
th
PRONOUNCED ON : 7 DECEMBER, 2020.
JUDGMENT :
1. Heard.
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2. On 8.6.2019 on personal search of the
applicant, 10 square pieces of papers
containing LSD drops of LSD solutions were
found and recovered. Subsequently, on the
same day, in house search, 13 pieces of brown
colour papers each admeasuring 1/1 cm in size
containing LSD drops of LSD solution were
recovered. Additionally, 970 gms (570+400
gms) of charas, kept in the cupboard was
recovered. Applicant was apprehended on
8.6.2019 for the offences punishable under
Sections 8(c), 20(b), 22(c) and 29 of the
Narcotics Drugs and Psychotropic Substances
Act ( NDPS Act for short) in connection with “ ”
Crime No.153/2019 is registered with Vartak
Nagar Police Station, Thane.
3. Applicant is seeking bail on the
ground that quantity of contraband i.e. LSD
and charas allegedly found and recovered from
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the person of applicant and his house was less
than the, ‘ commercial quantity , ’ and
therefore rigors of Section 37 of the NDPS
Act, are not applicable to the facts of this
case. Besides, it is contended that,
applicant has no criminal antecedents. Also
submitted that, the investigation is over and
applicant s presence for the trial can be ’
secured by imposing appropriate conditions.
4. Before appreciating the submissions
advanced by the Counsel for the applicant, it
may be stated that;
. LSD is sold on the street in small
tablets (micro dots), capsules or gelatin
squares. In its pure state, LSD is 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.
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. In this case, drug was found in the
form of drops, dried onto 23 pieces of papers.
5. It may be stated that, at serial
no.133 of Table appended to the 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.
6. Learned Counsel for the applicant
would submit that, total weight of 10 pieces
of paper containing LSD drops, found on the
person of the applicant was 140 milligrams.
However, 13 pieces of papers containing drops
of LSD solution allegedly found and
recovered, from applicant s house, it s ’ ’
weight has not been stated either in
panchanama, nor it could be found in the
chargesheet. Relying on the CA report, it is
contended that, net weight of the drops of ‘ ’
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LSD solution on the 23 papers (Exhibit
No.1/1, ½ , 1/3 and Exhibit No.(2)), as found
was 0.4128 milligram which is less than
commercial quantity i.e. 0.1 gm. Counsel
would therefore argue that, 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, rigors of Section 37 are not applicable to
the facts of this case.
7. On the other hand, learned APP has
supported the order passed by the learned
Sessions Court and also relied on the
judgment of the Apex Court in the case of Hira
Singh & Anr. V/s. Union of India (Criminal
Appeal No. 722/2017).
8. I have perused the First Information
Report, Recovery Panchanamas and Chemical
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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
swalloed/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
‘ mixture 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)
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appended thereto of the NDPS Act. Entry
No.239 and Footnote-(4) reads as under :
239. Any mixture or preparation that of
with or without a neutral
material, of any of the above drugs.
Lesser of the Small quantity between the
quantities given against the respective
narcotic drugs or psychotropic substances
mentioned above forming part of the mixture.
Lesser of the Commercial quantity between the
quantities given against the respective
narcotic drugs or psychotropic substances
mentioned above forming part of the mixture.”
“ 4. The quantities shown in column 5 and column
6 of the Table relating to the respective drugs
shown in column 2 shall apply to the entire
mixture or any solution or any one or more
narcotic drugs or psychotropic substances of
that particular drug in dosage form or isomers,
esters, ethers and salts of these drugs,
including salts of esters, ethers and isomers,
wherever existence of such substance is
possible and not just its pure drug content.”
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 ”
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2(xx), nor a mixture within the meaning of “ ”
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 LSD as a “ commercial
quantity . ” In addition, while holding
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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.
11. Herein, the applicant has no criminal
antecedents. He is in custody since June,
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2019. Therefore, in the facts of the case, the
applicant is admitted to bail on following
terms and conditions :
O R D E R
(i)The applicant arrested in Crime
No.153/2019 registered with
Vartaknagar Police Station, Thane,
shall be released on bail on executing
PR bond for the sum of Rs.1,00,000/-
(Rs. One Lakhs only) with one or more
sureties in the like sum.
Rane 1/12 BA-352-2020
Monday, 7.12.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 352 OF 2020
Hitesh Hemant Malhotra
Age : 39 years, R/a : Room
th
No.1703, 27 Floor, Dosti
Vihar, Vartaknagar, Thane.
(Thane Central Jail, Thane) ...Applicant
(Orig. Accused)
V/s.
State of Maharashtra
Through Vartak Nagar
Police Station, Thane … .Respondent
Mr. Suhas Oak i/by. Mr. Vinod Utekar,
Advocate for the applicant.
Ms. Prajakta P. Shinde, APP for State.
CORAM :- SANDEEP K. SHINDE, J.
RESERVED ON : 1ST DECEMBER, 2020.
th
PRONOUNCED ON : 7 DECEMBER, 2020.
JUDGMENT :
1. Heard.
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Rane 2/12 BA-352-2020
Monday, 7.12.2020
2. On 8.6.2019 on personal search of the
applicant, 10 square pieces of papers
containing LSD drops of LSD solutions were
found and recovered. Subsequently, on the
same day, in house search, 13 pieces of brown
colour papers each admeasuring 1/1 cm in size
containing LSD drops of LSD solution were
recovered. Additionally, 970 gms (570+400
gms) of charas, kept in the cupboard was
recovered. Applicant was apprehended on
8.6.2019 for the offences punishable under
Sections 8(c), 20(b), 22(c) and 29 of the
Narcotics Drugs and Psychotropic Substances
Act ( NDPS Act for short) in connection with “ ”
Crime No.153/2019 is registered with Vartak
Nagar Police Station, Thane.
3. Applicant is seeking bail on the
ground that quantity of contraband i.e. LSD
and charas allegedly found and recovered from
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Rane 3/12 BA-352-2020
Monday, 7.12.2020
the person of applicant and his house was less
than the, ‘ commercial quantity , ’ and
therefore rigors of Section 37 of the NDPS
Act, are not applicable to the facts of this
case. Besides, it is contended that,
applicant has no criminal antecedents. Also
submitted that, the investigation is over and
applicant s presence for the trial can be ’
secured by imposing appropriate conditions.
4. Before appreciating the submissions
advanced by the Counsel for the applicant, it
may be stated that;
. LSD is sold on the street in small
tablets (micro dots), capsules or gelatin
squares. In its pure state, LSD is 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.
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Rane 4/12 BA-352-2020
Monday, 7.12.2020
. In this case, drug was found in the
form of drops, dried onto 23 pieces of papers.
5. It may be stated that, at serial
no.133 of Table appended to the 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.
6. Learned Counsel for the applicant
would submit that, total weight of 10 pieces
of paper containing LSD drops, found on the
person of the applicant was 140 milligrams.
However, 13 pieces of papers containing drops
of LSD solution allegedly found and
recovered, from applicant s house, it s ’ ’
weight has not been stated either in
panchanama, nor it could be found in the
chargesheet. Relying on the CA report, it is
contended that, net weight of the drops of ‘ ’
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Rane 5/12 BA-352-2020
Monday, 7.12.2020
LSD solution on the 23 papers (Exhibit
No.1/1, ½ , 1/3 and Exhibit No.(2)), as found
was 0.4128 milligram which is less than
commercial quantity i.e. 0.1 gm. Counsel
would therefore argue that, 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, rigors of Section 37 are not applicable to
the facts of this case.
7. On the other hand, learned APP has
supported the order passed by the learned
Sessions Court and also relied on the
judgment of the Apex Court in the case of Hira
Singh & Anr. V/s. Union of India (Criminal
Appeal No. 722/2017).
8. I have perused the First Information
Report, Recovery Panchanamas and Chemical
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Rane 6/12 BA-352-2020
Monday, 7.12.2020
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
swalloed/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
‘ mixture 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)
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Monday, 7.12.2020
appended thereto of the NDPS Act. Entry
No.239 and Footnote-(4) reads as under :
239. Any mixture or preparation that of
with or without a neutral
material, of any of the above drugs.
Lesser of the Small quantity between the
quantities given against the respective
narcotic drugs or psychotropic substances
mentioned above forming part of the mixture.
Lesser of the Commercial quantity between the
quantities given against the respective
narcotic drugs or psychotropic substances
mentioned above forming part of the mixture.”
“ 4. The quantities shown in column 5 and column
6 of the Table relating to the respective drugs
shown in column 2 shall apply to the entire
mixture or any solution or any one or more
narcotic drugs or psychotropic substances of
that particular drug in dosage form or isomers,
esters, ethers and salts of these drugs,
including salts of esters, ethers and isomers,
wherever existence of such substance is
possible and not just its pure drug content.”
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 ”
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Rane 8/12 BA-352-2020
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2(xx), nor a mixture within the meaning of “ ”
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 LSD as a “ commercial
quantity . ” In addition, while holding
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Rane 9/12 BA-352-2020
Monday, 7.12.2020
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.
11. Herein, the applicant has no criminal
antecedents. He is in custody since June,
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Rane 10/12 BA-352-2020
Monday, 7.12.2020
2019. Therefore, in the facts of the case, the
applicant is admitted to bail on following
terms and conditions :
O R D E R
(i)The applicant arrested in Crime
No.153/2019 registered with
Vartaknagar Police Station, Thane,
shall be released on bail on executing
PR bond for the sum of Rs.1,00,000/-
(Rs. One Lakhs only) with one or more
sureties in the like sum.
| (ii) | The applicant shall report |
|---|
the Investigating Officer between
11:00 to 1:00 p.m. on second and fourth
Monday of each month, commencing from
December, 2020 till the charge is
framed.
| (iii) | The applicant shall deposit his |
|---|
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passport with the Investigating
Officer within two weeks from his
release from jail.
| (iv) | The applicant shall furnish |
|---|
particulars of his permanent
residential address and contact
details to the Investigating Officer.
| (v) | The applicant shall not tamper wit |
|---|
the evidence or attempt to influence or
contact the complainant, witnesses or
any person concerned with the case.
| 7. | The application is accordingly |
|---|
allowed and disposed of.
| 8. | It is made clear that observati |
|---|
made hereinabove be construed as expression
of opinion only for the purpose of granting
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bail and the same shall not in any way
influence the trial in other proceedings.
(SANDEEP K. SHINDE, J.)
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