MUMBAI: Bombay high court on Wednesday asked Narcotics Control Bureau (NCB) to amend its petition on LSD drug weight issue after its counsel ASG Anil Singh said it was challenging the validity of an earlier HC order which held the blotting paper, to only be a carrier material and not part of mixture, as not being good law. Lysergic Acid Diethylamide (LSD), a hallucinogenic narcotic drug is placed as small dots on the paper, for consumption.
The NCB also placed reliance on a United States Supreme Court majority 7 is to 2 judgement in Chapman Vs United State which held that the blotter paper, though a carrier material, was part of the LSD mixture. It had held that “it is the weight of the blotter paper containing LSD, and not the weight of the pure LSD, which determines eligibility of minimum sentence.”
The ASG said since the paper is consumed too, it forms a part of the mixture and when seized its weight has to be factored in too. But Rizwan Merchant, counsel for an alleged peddler Anuj Keshwani, 30, said the paper can be separated from the drug and hence it cannot be considered part of the drug or its mixture and its weight has to be discarded, under the law.
The battle over weight of the drug and the legal point on whether the paper weight matters, assumes importance as offences under the Narcotic Drug and Psychotropic Substances Act (NDPS) depend on the drug weight for punishments. If amount is ‘small’ punishment is less, for ‘commercial’value, the sentence is severe.
The commercial value of LSD is 0.1 gram due to its potency. Keshwani was found in possession of 0.62 gm, said NCB, last September when 31 blotter papers with LSD were recovered during a search, apart from other drugs. He has been in Taloja Central prison since his arrest last year.
The NCB is relying on a recent Supreme Court ruling in Hira Singh’s case which said the weight of mixtures of drugs sold on street ought to be considered including a neutral substance, not just its pure form.
Singh said the HC order of December 2020 holding the paper to be a mere carrier and not neutral part of a mixture in a Pune case for bail, were per-incuriam (through lack of regard to the law) with a finding in the SC April 2020 Judgment, which dealt with the intention of the legislature behind NDPS Act,and hence not good law.
Justice Ajay Gadkari was hearing the NCB petition against an April 30 order of a Special NDPS court Judge which had directed the sample seized from Keshwani to be sent for fresh FSL report to Gandhinagar. The HC gave NCB a week to amend its petition since it would have to weigh in on an important legal issue.
Keshwani, through Merchant and advocate Taraq Sayed had said the first FSL report which said 0.62 gms was silent on whether paper was weighed.