Rajasthan High Court - Jaipur
Kallu Nath S/O Vishnu Nath vs State Of Rajasthan on 27 June, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous IV Bail Application No. 2676/2022
Kallu Nath S/o Vishnu Nath, Aged About 88 Years, R/o Jatlao,
P.s. Bonli, Sawai Madhopur
(At Present Confined In District Jail Sawai Madhopur)
----Accused-Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner(s) : Mr. Rajeev Kumar Sogarwal For Respondent(s) : Mr. Mangal Singh Saini, PP HON'BLE MR. JUSTICE FARJAND ALI Order 27/06/2022
1. The instant bail application has been filed under Section 439 Cr.P.C. on behalf of accused-petitioner Kallu Nath S/o Vishnu Nath. The petitioner has been arrested in connection with FIR No. 72/2017 registered at Police Station Bowli, District Sawai Madhopur for the offence(s) under Sections 8, 15 and 18 of the NDPS Act.
2. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offence(s) and no useful purpose would be served by keeping him behind the bars. The petitioner is a nonagenarian. The recovered contraband consists of 460 gms of opium which is well below the commercial quantity and 4756.03 kgs of opium poppy plants, for which embargo contained under Section 37 (Downloaded on 25/12/2022 at 12:02:49 AM) (2 of 3) [CRLMB-2676/2022] would not be attracted as commercial quantity for opium poppy plants is not specified under the statute.
3. Per contra, learned Public Prosecutor opposed the bail application.
4. Heard learned counsel for the parties. Perused the material available on record. The case of the prosecution is that the recovered contraband, i.e. opium poppy plants that were being cultivated, qualify as contraband of commercial quantity. Sub- clause (viia) of Section 2 of the NDPS Act defines "commercial quantity" as any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette, in relation to narcotic drugs and psychotropic substances. The notification in effect that specifies small and commercial quantity for narcotic drugs and psychotropic substances is S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt. II Sec. 3(ii) dated 19th October, 2001 and Note no. 3 appended to the notification reads as under:
"Note 3.- "small quantity" and "Commercial Quantity"
with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985". As per the Notification, there is no defined amount for cultivation of opium poppy that can be treated as either small or commercial quantity. Section 18 of the NDPS Act, which discusses the punishment for contravention in relation to opium poppy and opium, prescribes punishment for small quantity in sub-clause (a), for commercial quantity in sub-clause (b) and all other cases are covered under sub-clause (c). The offence of cultivation of opium poppy is prohibited under sub-clause (b) of Section 8. Thus, the (Downloaded on 25/12/2022 at 12:02:49 AM) (3 of 3) [CRLMB-2676/2022] corresponding punishment-prescribing provision for offence under Section 8(b) would be Section 18(c).
Grant of bail for offences stipulated in the NDPS Act is interdicted by the provisions of Section 37. Section 37 states that any person who is accused of an offence under Sections 19, 24 or 27A and of an offence involving commercial quantity cannot be granted bail. The offence in the present case is not covered by Sections 19, 24 or 27A and the commercial quantity for cultivation of opium poppy is not defined. Therefore, it can be safely inferred from the above observations that the restriction contained under Section 37 on provision of bail will not operate in the present case.
5. Considering the observations made herein above and looking to the possibility that the trial may take long time to conclude, this court deems it just and proper to enlarge the petitioner on bail. It is to be clear that the observations made in the present order shall not influence the trial judge in any manner and are limited to the justifiable disposal of this bail application only.
6. Accordingly, the fourth bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner, named above, shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI),J RAJAT KUMAR /11 (Downloaded on 25/12/2022 at 12:02:49 AM) Powered by TCPDF (www.tcpdf.org)