Calcutta High Court
Md. Mujibar Molla @ Khokan And Anr. vs State on 24 August, 2005
Equivalent citations: 2005(3)CHN639
JUDGMENT Amit Talukdar, J.
1. Since a Division Bench while dealing with an application under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the said Code) in respect of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the said Act) felt:--
"Whether the restrictions/limitations imposed by or under Section 37 of the NDPS Act upon the power of the Court to grant bail are also applicable to an offence in relation to ganja etc. made punishable 20(i) under Section thereof?"
2. Their Lordships of the said Division Bench directed the matter be placed before the learned Chief Justice for constitution of a larger Bench. Pursuant thereof we have been asked to answer the said reference after formation of this Special Bench by the Hon'ble the Chief Justice.
3. The factual matrix germane for answering the reference in our view requires to be set out for profitable discussion.
4. Consequent to submission of the chargesheet in respect of the offence of Section 21 of the said Act against the petitioners cognizance was taken by the learned Special Court (under the said Act), Barasat and prayer for bail was refused. The same prompted the petitioners to file the application under Section 439 of the said Code before this Court. The Division Bench heard the matter and was of the view:
"It appears to us that there is a divergence of opinion amongst different High Courts on the question whether restrictions/limitations imposed upon the power of the Court to grant bail by or under Section 37 of the Act are applicable to an offence in relation to ganja etc. in respect of which punishment prescribed is imprisonment for a term which may extend upto 5 years."
5. We have heard the submissions made at the Bar and had the very able assistance of the learned Amicus Curiae, appointed by us earlier.
6. To appreciate the agony, which haunted the mind of the Division Bench we have to rewind to the time when the Division Bench made the reference. Their Lordships made the reference on 27.2.2001. What was the law prevalent in those times has to be adverted to. Section 37 of the said Act stood as on the time of the reference as read hereunder :--
"37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless --
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail."
7. Obviously the said reference had great impact on the question, which has fallen for discussion as to whether even if the articles being ganja weighing respectively 500 grams and 450 grams seized from the two petitioners on 16.1.2000 and in view of Section 20(i) of the said Act the maximum term of imprisonment could extend upto five years whether the rigours of Section 37(1) would apply. It would have been a serious food for though and intense deliberation by us before we would have come to our opinion on the basis of the said position.
8. When the Division Bench made the reference the question was very much pertinent in view of the rigid grip of Section 37 of the said Act. This agony of the Division Bench was totally justified. More illustratively this point was considered by the Supreme Court in Intelligence Officer, Narcotic Control Bureau v. Sambu Sankar and Anr., 2001 C Cr. LR (SC) 139, wherein the Supreme Court has held that even in connection with possession of ganja the bar of Section 37 would apply.
9. Had we been asked to answer the reference anterior to the Amendment of 2001 we in all probability would have answered in the affirmative.
10. The reference, which was very pertinent and posed for an answer on an important question of law, however, has waned in view of the posterior position occasioned in the interregnum between the time of the reference made by the Division Bench and the time we are answering the reference by virtue of the Amendment Act No. 9 of 2001 which came to form a part of the Statute Book on and from 02.10.2001.
11. In the light of the amendment of the said Act the position has undergone a substantial change and has to be understood in the impact of the said amendment. Section 37 of the said Act after amendment stands as follows:
"37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
12. In this context the provisions of Section 21 of the said Act after the amendment is also required to be looked into:
"21. Punishment for contravention in relation to manufactured drugs and preparations.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufacturers possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention 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) where the contravention 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) where the contravention 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.
13. The definition of small quantity has been put into play by virtue of the amendment in the said Act and Section 2(xxiiia) of the said Act defines small quantity and in the said table item No. 55 described the quantity upto 1000 gms as a small quantity in respect of ganja. By that reckoning it would be covered by the definition of small quantity.
14. Section 41 of the Amendment Act of 2001 (Act 9 of 2001) of the said Act reads as follows:
"41. Application of this Act to pending cases.--(1) Notwithstanding anything contained in Sub-section (2) of section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of commission of such offence:
Provided that nothing in this section shall, apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force."
15. As section 41 of the said Amendment Act, which shows that all cases pending before the Court or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of an offence punishable under the principal Act as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of commission of such offence. The proviso thereof reads that the said provision will not be applicable to any pending appeal.
16. When the application under Section 439 of the said Code was placed before the Division Bench as on 28.3.2000 we find that chargesheet was submitted and the investigation of the case was complete as on 15.3.2000. The Division Bench while making the reference on the basis of the application under Section 439 of the said Code observed:
"We make it further clear that pendency of this reference will not be a bar to proceed with the trial and to conclude the same with utmost expedition."
17. In view of such direction passed by the Division Bench it would be deemed that the proceeding of Case No. N-3 of 2000 pending before the learned Judge, Second Court, Barasat has forged ahead to its conclusion. ,
18. Now, we have to refer to the provisions of Sub-section (a) of section 21 of the said Act of 2001 which reads as follows:
"21. Punishment for contravention in relation to manufactured drugs and preparations.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufacturers possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable, --
(a) where the contravention 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;"
19. As such, in the case of small quantity possessed by an accused, as the case herein is, it would be punishable maximum to a period of six months or with fine, which may extend to ten thousand rupees or with both.
20. Section 37 of the said Act as it stands now by virtue of clause (b) thereof makes the position very clear. The embargo in respect of the granting bail in the said Act, as amended, has been limited to Sections 19,24 and 27(a) and also for offence involving commercial quantity whereas we find that neither the quantity here is commercial quantity (it is small quantity) nor it falls under Sections 19, 24 or 27(a) of the said Act and the act of the accused only attracts the provisions of Section 21(a) of the said Act as amended.
21. In the light of the aforesaid discussion we feel that the Amendment Act. , (No. 9 of 2001) has taken the thunder out of the storm raised at the time of reference and as we read Section 41 of the said Act we find that the question raised in the reference also stands covered (Ref. Basheer v. State of Kerala, 2004 Cr. LJ 1418)[also 2004 SCC (Cri) 1107].
22. In the light of the discussion in the foregoing paragraphs we return the reference with the following answer:
"No, the restrictions/limitations imposed by or under Section 37 of the N.D.P.S. Act upon the power of the Court to grant bail are not applicable to an offence in relation to ganja etc. made punishable under Section 20(i) of the said Act"
in view of the amendment of Section 37(1) of the said Act since 01.10.01 although it was definitely a bar at the relevant time when such reference was made.
23. Answer having been given accordingly the reference stands disposed of.
24. Registry is now directed to place the matter before the concerned Division Bench.
25. Reference answered in NEGATIVE.
26. Before parting we record our deep appreciation of the valuable assistance rendered by Shri Ashim Kumar Roy, learned Arnicas Curiae.
Debiprasad Sengupta and P. N. Sinha, JJ.
We agree.