Karnataka High Court
Tippeshappa vs The State Of Karnataka, By Channagiri ... on 14 March, 2005
Equivalent citations: 2005CRILJ2354, 2005(100)ECC548, ILR2005KAR1653
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
ORDER N.S. Veerabhadraiah, J.
1. This is an application under Section 389 Cr.P.C by the appellant-accused for suspension of sentence and for bail in SPL.NDPS.No. 4 /2002 dated 6.1.2005 passed by the learned District and Sessions Judge, Davanagere convicting the accused for the offence under Section 20(b)(1) of the N.D.P.S Act, 1985 and sentencing him to undergo R.I for one years and to pay a fine of Rs. 5,000/- in default to undergo S.I for 3 months.
2. The brief facts of the case are as follows:
The Police, Channagiri have charged sheeted the accused for the offence under Section 20(b)(1) of the N.D.P.S Act 1985 on the allegation that the accused had raised 40 ganja plants in the backward of his house situated at Malligere village and that the same were seized under the mahazar Ext. P2 in the presence of panch witnesses on 28.8.2002. After the trail was concluded, the learned Sessions Judge, Davanagere, for the reasons recorded in his judgment convicted the accused and sentenced him as above. The accused has come up in this appeal with the present application for suspension of sentence and for bail.
3. The learned High Court Government Pleader filed a detailed statement of objections praying to dismiss the application.
4. Learned Counsel for the appellant contended that the evidence on record does not disclose as to from which place the material object was seized and that there is also no evidence to show that this appellant-accused was the owner of the said plants. He has further contended that absolutely there are no materials to attract the provisions of Section 20(b)(1) of the N.D.P.S Act. In support of his contentions, the learned Counsel has relied on the decision in the case of Dadu alias Tulsidas v. State of Maharashtra, reported in 2000 Crl.L.J. 4619 and submitted that Section 32-A of the N.D.P.S. Act does not take away the right of the appellate Court to suspend the sentence of the convict under the Act. Therefore, as a matter of right the appellant is entitled for suspension of sentence. Accordingly, prayed to allow the application for suspension of sentence and to grant bail.
5. Sri Bhavani Singh, learned Addl.State Public Prosecutor contended that the learned Sessions Judge has recorded a definite finding that the accused had raised ganja plants in the backyard of his house and that it was seized. In all there were 40 ganja plants weighing 23 K.Gs. Therefore, submitted that the appellant-accused is not entitled for seeking suspension of sentence and bail in view of Section 37 of the N.D.P.S Act. He has also submitted that Section 20 of the N.D.P.S Act, 1985 makes it clear if the accused were to be found with more than the commercial quantity, the punishment is with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years. Therefore submits that in the present case, the accused having been found with more than the commercial quantity, that as a matter of right not entitled for suspension of sentence and prayed to reject the application.
6. In the light of the submissions, the point for consideration that arises is:
Whether the accused is entitled for suspension of sentence and for bail?
7. Before dealing with the provisions of the N.D.P.S Act, 1985 the Court should bear in mind the law laid down by the Apex Court. In the case of Dadu alias Tulsidas v. State of Maharashtra, reported in 2000 Crl.L.J.4619, while considering Section 32-A of the N.D.P.S Act, at paras 25, 26 and 29, the Apex Court observed as follows:
25. Judged from any angle the Section insofar as it completely debars the appellate Courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are therefore of the opinion that Allahabad High Court in Ram Charan's Case (supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajput's case cannot be held to be good law.
26. Despite holding that Section 32-A is unconstitutional to the extent it affects the functioning of the Criminal Courts in the Country, we are not declaring the whole of the section as unconstitutional in view of our finding that the section insofar as it makes away the right of the Executive to suspend, remit and commute the sentence is valid and intra vires of the constitution. The declaration of Section 32-A to be unconstitutional insofar as it affects the functioning of the Courts in the Country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable.
29. Under the circumstances, the Writ Petitions are disposed of by holding that (1) Section 31-A does not in any way affect the powers of the authorities to grant parole (2) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment."
8. On a reading of the entire judgment and also the observations of the Apex Court, it is manifest that in so far as the suspension of sentence and granting of bail, the powers of the Court are not taken away and to a limited extent it is held that Section 32-A is unconstitutional i.e., in so far as the suspension of sentence and granting of bail. It is with this background, it has to be examined whether the accused who has been charged for the offence under Section 20(b)(1) of the N.D.P.S Act, 1985 is entitled for the relief sought for.
9. Section 20 of N.D.P.S Act 1985 reads thus:
"20. Punishment for contravention in relation to cannabis plant and cannabis,-whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,
a) Cultivates any cannabis plant, or
b) Produces, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-state, or uses cannabis, shall be punishable
i) Where such contravention relates to Clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees, and
ii) Where such contravention relates to Clause (b),-
iii)And involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, B And involves quantity lesser than commercial quantity, but greater than small quantity with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
C. and involves commercial quantity with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.
Provided that the Court may for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
10. The punishment prescribed is of 3 categories. The first category involving small quantity where the punishment is with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. The second category involving quantity lesser than commercial quantity but greater than small quantity where the punishment prescribed is with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to One lakh rupees and the third category involving commercial quantity where the punishment prescribed is with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees, provided the Court may for reasons to be recorded in the judgment, impose lesser sentence.
11. Now it has to be examined as to under which of the categories the accused comes so as to hold whether he is entitled for suspension of sentence.
12. Section 2(b) of the N.D.P.S Act, 1985 defines "ganja" as under:
"2 (b) "ganja" that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated."
13. Section 2(vii-a) of the N.D.P.S Act, 1985 reads thus:
"Commercial quantity' in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazetter."
14. Section 2(xxiii-a) of the N.D.P.S Act, 1985 reads thus:
"small quantity' in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
15. This has to be looked into the notification issued by the Central Government from time to time. The notification published by the Central Government dated 19.10.2001 specifies "small quantity' and "commercial quantity' for the purpose of Section 2(vii-a) and Section 2(xxiii-a). Item No. 55 deals with 'ganja'. There "small quantity' prescribed is 1000 grams and "commercial quantity' prescribed is 20 K.Gs. According to the learned Addl. State Public Prosecutor, it exceeds more than the commercial quantity as it was found by the Investigating Officer that at the time of the seizure, there were about 40 plants weighing 23 K.Gs. Therefore submits that the appellant-accused is not entitled for suspension of sentence.
16. It is no doubt true there is some justification in his contention provided it exceeds more than the commercial quantity weighing 20 K.Gs. On a perusal of Ext.P 2, the seizure mahazar, it clearly establishes the fact that what was seized is green and fresh ganja plants numbering 40 weighing 23 K.Gs. Under the mahazar Ext. P 2 itself, it is recited that the material objects will be again seized under the fresh mahazar after it is dried. But on going through the entire trial Court records, it is nowhere found nor explained as to what was the weight of the ganja plants after it was dried. There is no evidence to show whether the ganja plants were weighed after it was dried. Therefore, at any cost, it cannot be held that after the plants were dried, it weighs more than 20 K.Gs. For all purposes, it can be easily taken to be less than the commercial quantity. That apart, in the present case, the learned Sessions Judge having taken note of the fact has sentenced the accused to undergo R.I for a period of one year and to pay a fine of Rs. 5,000/-, in default to undergo S.I for 3 months.
17. When the prosecution has not made out the exact quantity of the ganja plants after it was weighed that itself is sufficient to hold that the accused as a matter of right, is entitled for suspension of sentence in the light of the verdict of the Apex Court.
18. For the foregoing reasons, the application for suspension of sentence is allowed subject to the condition the appellant depositing the fine amount within 4 weeks, if not deposited. The trial Court is directed to enlarge the accused on bail on his executing a self bond for Rs. 25,000/- with two sureties for the likesum to the satisfaction of the trial Court.