Orissa High Court
Suratha Pani vs State Of Orissa; 2015 (I) Ilr on 13 August, 2020
Author: Savitri Ratho
Bench: Savitri Ratho
BLAPL No.3923 of 2020
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Suratha Pani .... Petitioner
-Vrs.-
State of Odisha .... Opp. party
For petitioner: Mr.Basudev Pujari
For State : Mr.S.K.Zafrulla
Addl. Standing Counsel
04. 13.08.2020
I have heard Mr. B. Pujari, learned counsel for the
petitioner and Mr. Zafurulla, learned Additional Standing
Counsel for the State through Video Conferencing mode.
This is an application under section 439 of Cr.P.C.
for grant of bail to the petitioner-Suratha Pani in
connection with R. Udayagiri P.S.Case No.23 of 2020
corresponding to G.R. Case No.21 of 2020 pending in the
Court of learned Special Judge, Gajapati at Parlakhemundi.
The case has been registered against the petitioner and
four others for commission of offences punishable under
Sections 20(b)(ii)(C)/25/29 of N.D.P.S. Act.
The petitioner had moved an application for bail
before the Court of learned Special Judge, Gajapati,
Parlakhemundi which was rejected on 05.06.2020 interalia
holding that the participation of the petitioner cannot be
prima facie overruled and the alleged quantity is
commercial quantity.
The prosecution case in brief as per the FIR is that
on 15.03.2020 at 12.15 am, S.I Biswajit Jena the informant
was performing night patrol duty alongwith other staff .
While returning at about 7.00 am, he received reliable
information that one auto-rickshaw bearing registration
number OD-07N-2070 was carrying two men and a lady
and was loaded with ganja bags. They found the auto-
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rickshaw and detained it. One person escaped from the
auto-rickshaw and ran towards the jungle on seeing the
police . The driver alongwith one man and one woman
were found in the auto-rickshaw.They disclosed their
names to be Ajay @ Somanath Raita ( driver cum owner of
the auto-rickshaw) , Bijay Pani and Sandhyarani Patra .
Two jerry bags were found in the auto-rickshaw smelling of
ganja. On being asked , Bijay Pani stated that the previous
night he had collected the ganja from jungle area of nearby
villages alongwith one Suratha Pani and one Daniel Mali
.They were transporting the same to Berhampur by
engaging the auto-rickshaw of Ajay @ Somnath Rait and
the lady had been engaged to sell the ganja and that
Suratha Pani had fled from the auto-rickshaw on seeing
the police team . The mandatory provisions relating to
search and seizure were followed and after arrival of the
Executive Magistrate and weighman , search and seizure
was conducted search was conducted and 10kgs of ganja
was detected in each of the two jerry bags (total quantity of
ganja - 20 Kgs ). Samples were drawn and seizure effected
and the three accused persons were arrested . P.S Case No
23 was registered under S-20(b) (ii) (C) / 25 /29 of the
NDPS Act against the petitioner and four others.
Learned counsel for the petitioner has submitted
that the petitioner is in judicial custody since 23.05.2020
and it is the prosecution case that 20 kgs. of ganja was
seized from the possession of the co accused persons and
nothing incriminating has been seized from the possession
of the petitioner who has been arrested subsequently on
the basis of statements of the co-accused before the police.
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The mobile phone seized at the spot does not belong to the
petitioner . He further submitted that in the meantime, the
investigation has made substantial progress and since the
quantity of ganja alleged to have been seized from the
possession of the co-accused persons is lesser than
commercial quantity, the bar under section 37 of the
N.D.P.S. Act is not applicable and therefore, taking into
account the period of detention of the petitioner in
custody, the prayer for bail of the petitioner may be
allowed.
Learned counsel for the State opposed the prayer
for bail stating that the petitioner was involved in transport
of commercial quantity of ganja but was able to escape
from the spot on seeing the police . His mobile phone has
been seized from the spot. Investigation is not complete as
one co- accused Daniel Mali is yet to be arrested. In view
of the fact that commercial quantity of ganja was seized ,
the restrictions contained in Section- 37 of the NDPS Act
will be attracted, for which the application for bail deserves
to be rejected .
Perused the F.I.R., copies of the statements
recorded under 161 Cr.P.C., the seizure list dated
15.03.2020 pertaining to seizure of the ganja. It is
forthcoming that 20 Kgs of ganja packed in 2 no. of jari
bags (10 kgs in each bag) has been seized from the
possession of co-accused Bijay Pani , Sandhyarani Patra
and Ajay @ Somanath Raita vide seizure list dated
15.03.2020 and the petitioner has been arrested
subsequently. The petitioner has been named in the FIR
and statements recorded under Section - 161 Crl.P.C as
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his name was disclosed by the co accused. There is no
allegation that the petitioner has antecedents of similar
nature or that any ganja has been seized from his
possession .
It is the settled position of law that when the
bail application of a person accused of commission of an
offence/ offences under the N.D.P.S. Act arises for
consideration on merit, the Court has to comply with the
mandate of Section 37(1) and 37 ( 2) of the N.D.P.S. Act , if
the quantity of the narcotic drug or psychotropic
substance involved, appears to be of commercial quantity.
The Amending Act of 2001 (The Narcotic Drugs
and Psychotropic Substances (Amendment) Act, 2001 (Act
9 of 2001)) introduced the concept of "small quantity" and
"commercial quantity" for the purpose of imposing
punishment. The punishment is graded as per the
quantity involved - "small quantity", "commercial quantity"
or an intermediate quantity .
Section-20 of the N.D.P.S. Act prescribes the
punishment for contravention in relation to cannabis plant
and cannabis. Section . Sec- 20 (b) of the Act deals with
cannabis commonly referred to as ganja . Section 2 (iii) of
the NDPS Act defines cannabis. Section 2(iii) and the
relevant portion of Section 20(b) are quoted below:-
Section - 2 (iii) "cannabis (hemp)" means 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.
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"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:-
xxx x xx x xx
(b) produces, manufactures, possesses, sells,
purchases, transports, imports inter- State, exports
inter-State or uses cannabis, shall be punishable-
xxx x xx x xx
(ii) where such contravention relates to sub-clause (b),-
(A) and involves small quantity, with rigorous
imprisonment for a term which may extend to one
year, 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 and 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."
"Commercial quantity" and "small quantity" have
been defined in Section - 2(viia) and Section -2(xxiiia) of
the NDPS Act respectively, and are quoted below:
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2.(viia). "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
Gazette;"
"2.(xxiiia). "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;"
The Central Government by way of a notification-
S.O. 1055 (E) dated 19.10.2001 issued in exercise of the
powers conferred by clauses (viia) and (xxiiia) of section 2 of
the NDPS Act, has specified what would constitute
"commercial quantity" and " small quantity" respectively,
for different substances. The quantity mentioned in
columns 5 and 6 of the table, in relation to the narcotic
drug or psychotropic substance mentioned in the
corresponding entry in the columns 2 to 4 of the said table
are the "small quantity" and "commercial quantity"
respectively for the purposes of the said clauses of that
section. Serial No. 55 relates to ganja. In respect of ganja,
the quantities prescribed as "commercial quantity" and
"small quantity" are 1000Kg and 20 Kg respectively .
In view of the language of clause (viia) of section
2 of the NDPS Act, 20 kg. of ganja will not come within the
definition of "commercial quantity". Commercial quantity in
respect of ganja is greater than the quantity specified in
the aforesaid notification which would mean any quantity
more or greater than 20 kg.
Thus, from a conjoint reading of Section- 2 (viia)
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and the notification, it is forthcoming that the quantity of
20 Kgs will not constitute "commercial quantity" .
In the present case, as the quantity of ganja
involved in the case is 20 Kgs which is lesser than
"commercial quantity" and greater than "small quantity" ,
the restrictions/ limitations under section 37 of the
N.D.P.S. Act will not be attracted .
That , 20 Kgs is a quantity which is lesser than
"commercial quantity" and greater than "small quantity" ,
and will not constitute an offence under Section 20(b) (ii)
(C) but will constitute an offence under Section 20 (b)(ii)(B)
, has been decided in at least two cases by this Court
namely - Shaji Thomas vs State of Orissa; 2015 (I) ILR
CUT 193: (2015) 60 OCR 471 and Anil Kumar Dash vs
State of Orissa : 2015 SCC Online Ori 361 :2015 (II) ILR
CUT 1233: (2015) 62 OCR 45 .
It would be useful to quote the relevant portions of
the decisions in the two cases .
In the case of Shaji Thomas (supra) this Court
has held :-
...."But , the limitation of Section 37 of the N.D.P.S.
Act applies in a case where the quantity of Narcotic
Drugs and Psychotropic substance involved is of
commercial quantity. The materials available on record
must prima-facie disclose the indictment of the
petitioners in an offence involving commercial quantity
of Narcotic Drugs and Psychotropic substance in order
to attract the limitations of Section 37 of the N.D.P.S.
Act. Mere registration of a case for commission of
offence involving commercial quantity does not attract
per se the limitation of Section 37 of the N.D.P.S.
Act".....................
....."In such view of the matter, it can very well be
said that quantity of 'Ganja' seized in this case being
20 Kgs., the same is not greater than the quantity
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specified in the aforesaid Notification. Therefore, in this
case, there is no material to show that the petitioners
are prima-facie indicted in an offence involving
commercial quantity, but they are involved in an
offence less than commercial quantity and more than
small quantity. Hence, the limitation as provided in
Section 37(1) of the N.D.P.S. Act for grant of bail has no
application to this case."
Similarly in the case of Anil Kumar Dash (supra),
this Court has held : -
........"In view of Section 37 of the NDPS Act, the
limitations on granting of bail specified in clause (b) of
sub-section (1) of that section will not be applicable to
the quantity of 20 kg. of ganja as the said quantity is
lesser than "commercial quantity" but greater than
"small quantity" and accordingly punishable under
section 20(b)(ii)(B) of NDPS Act. The limitations shall
apply, inter alia, for the offence under section-
20(b)(ii)(C) of NDPS Act."
Similar view has been taken by the High Court of
Delhi on 17.05.2012 while deciding Criminal Appeal No
89 of 2011 ( Ranjeet Singh vs State ): 212 SCC Online
Del 2863: (2012) 4 DLT(Crl) 945, where 20 kgs of ganja
had been recovered from the appellant -accused and he
had been convicted and sentenced by the trial Court for
commission of the offence under Section - 20 (b) ( ii) (C) of
the NDPS Act. After referring to the notification dated 9th
October, 2001, specifying what would be "small quantity"
and " commercial quantity in respect of 239 Narcotic Drugs
and Psychotropic Substances, conviction and sentence of
the appellant therein under section 20 (b) (ii) (C) was set
aside and he was convicted and sentenced for the offence
under Section 20(b) (ii) (B) of the NDPS Act.
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Considering the facts of the cases and the
submissions of the learned counsel for the parties,
especially the fact that ganja has not been seized from the
possession of the petitioner and that the limitations
contained in Sec- 37 of the NDPS Act in respect of
commercial quantity will not be attracted , I am inclined to
allow this application for bail.
Let the petitioner-Suratha Pani be released on bail
on such terms and conditions as may be fixed by the
learned Court below in seisin over the matter, including the
condition that he will appear before the R. Udayagiri Police
Station once a week on each Sunday between 3.00 pm and
5.00 pm and will not indulge in any criminal activity while
on bail .
The BLAPL is accordingly allowed.
Sukanta
..........................
Savitri Ratho, J.
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