Rajasthan High Court - Jaipur
Gena Ram vs State Of Rajasthan on 4 August, 1993
Equivalent citations: 1994CRILJ671, 1993(2)WLC636
ORDER Rajendra Saxena, J.
1. Heard. Perused the case diary.
2. It is alleged that on 16-6-1993, one k.g. of Ganja on the carrier of Moped, which was being driven by the petitioner, was recovered by the S.H.O. Police Station Kotwali, Pali for which the petitioner had no licence/permit. A case under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act., 1985 (in short 'the Act') has been registered and the investigation is in progress.
3. The only contention of Mr. Mohanani, learned Counsel appearing for the petitioner is that since the offence Under Section. 20 of the Act in respect of the contravention relating to the Ganja carries a punishment, which may extend to five years and fine, provisions of Section 37(1)(b) do not apply in such a case. According to him, keeping in view the small quantity of Ganja weighin one Kg., petitioner should be enlarged on bail.
4. For this) Mr. Mohanani has placed reliance on the cases of Shankar Krishnasa Habib v. State of Karnataka, 1992 Cri LJ 205 and A.V. Dharmasingh v. State of Karnataka, 1993 Cri LJ 94, wherein it has been held that Section 37 of the Act, dealing with non-bailable offences will be applicable to the offences under the Act only if they are punishable with the imprisonment of five years or more and that if an offence is punishable with imprisonment which can extend up to five years only, the provisions of Section 37 shall not apply.
5. Mr. Thakur, learned Public Prosecutor appearing for the State of Rajasthan has vehemently opposed this bail application and submitted that interpretation taken by the learned single Judge of the Karnataka High Court in respect of the provisions of Section 37 of the Act is not reasonable and that the same defeats the object and purpose of the Act.
6. I have given my most anxious and earnest consideration to the rival contentions raised before me and carefully perused the provisions of the Act and the reasons given by the learned single Judge in the aforementioned cases. Interpreting the expression "punishable for a term of imprisonment for five years or more" appearing in Section 37 of the Act, the Karnataka High Court has held that the said expression means that the offence should be punishable with minimum of five years or more because the words "or more" are added only to emphasize that the offence is punishable with minimum five years or more and are to be read with reference for which the provisions of Section 37 of the Act are made applicable. I am in respectful disagreement with the above interpretation given by the Karnataka High Court for the reasons mentioned hereinafter :
7. Section 37 of the Act reads 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 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 (2 of 1974) or any other law for the time being in force on granting of bail.
8. The non obstante clause stating that "notwithstanding anything contained in the Cr. P. C. 1973" makes it abundantly clear that the provisions of Section 37 of the Act, which is a Special Act, shall override the provisions of the Criminal Procedure Code. The N.D.P.S. Act, 1985 has been enacted with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. That being the underlying object and particularly when the provisions of Section 37 of the Act are in a negative terms limiting the scope of the applicability of the provisions of the Cr. P. C. regarding bail, the High Court's power to grant bail under Section 439, Cr. P. C. is positively subject to the limitation mentioned in Section 37 of the Act. Section 37(1)(b) specifically lays down that 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 unless the P. P. has been given an opportunity to oppose the application for such release and 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. The provisions of this Sub-section are unambiguous, explicit and clear and admit of no exception. A plain reading of Section 37 makes it abundantly clear that a person even if accused of an offence punishable for a term of five years or more under the Act may be released on bail, if the Public Prosecutor has been given opportunity to oppose such bail application and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of an offence punishable for term of imprisonment of five years or more and that he is not likely to commit any offence while on bail. This section does not speak that the offence levelled against such accused must be punishable for a minimum term of five years. Thus, there is not at all any occasion or necessity to imply that this section applies for an offence punishable for a minimum term of imprisonment of five years.
9. Section 20 deals with punishment for contravention in relation to cannabis plant. It says that whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates any cannabis plant or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,-- (i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; and (ii) where such contravention relates to cannabis other than ganja, 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. Thus, for any such contravention relating to ganja, the term of rigorous imprisonment may extend to five years and shall also be liable to fine. Therefore, for such contravention relating to ganja, punishment of R.I. for a term of five years may also be awarded keeping in view the aggravating circumstances, quantity of the ganja seized and all other relevant factors. Hence, it cannot be said that no person accused of an offence under Section 20(b)(i) of the Act can be awarded a term of imprisonment of five years.
10. Chapter IV of the Act deals with the offences and penalties. Offences punishable Under Sections. 15 to 19, 20(ii), 21 to 25 and 27 of the Act prescribe a minimum of ten years rigorous imprisonment and a fine of Rs. one lakh and a maximum of twenty years rigorous imprisonment and Rs. two lakhs' fine under each count. On the other hand, for the offence for contravention relating to ganja punishable under Section 20(i) of the Act, no minimum rigorous imprisonment has been prescribed but in such a case, the punishment of rigorous imprisonment may extend to five years. Similarly, for the offence punishable under Section 26 of the Act, no minimum punishment of rigorous imprisonment has been prescribed but it may extend to three years R.I. For the offence punishable under Section 27(a) and (b) of the Act, no minimum punishment of rigorous imprisonment has been prescribed but such R.I. may extend up to one year and six months respectively for the offence under Section 27(a) and (b) of the Act. Thus, the offences under Sections. 26, 27(a) and (b) and 32 are not punishable for a term of imprisonment of five years or more. On the other hand, offence under Section 20(b)(i) for contravention relating to ganja is punishable for a term of imprisonment which may extend to five years and, therefore, such offence is subjected to rigor of Section 37(l)(b) of the Act.
11. Moreover there is no offence under this Act which fetches or carries punishment for a minimum term of imprisonment of five years. Therefore, the expression "five years or more" under this Act appearing in Section 37(1)(b) of the Act cannot be interpreted to mean that the offence should be punishable with minimum of five years or more. The learned single Bench of the Karnataka High Court did not take into consideration this material fact that none of the offences punishable under the Act carries a minimum punishment of five years imprisonment. The learned single Bench also overlooked the contingencies that for the provisions of the contravention of this Act relating to ganja in appropriate cases, an accused can be punished with rigorous imprisonment for five years also. In such circumstances, the interpretation drawn by the learned single Judge of the Karnataka High Court in the aforementioned cases appears to me neither reasonable nor just nor in consonance with the object and purpose of this Act. In my considered opinion, the limitations specifed in Section 37(1)(b) of the Act are fully applicable for an offence relating to ganja which is punishable under Section 20(b)(i) of the Act.
12. In view of this, the cases of Shankar Krishnasa Habib and A.V. Dharmasingh (supra) cannot come to the rescue of the petitioner and the contention of Mr. Mohanani on this count is not tenable. Since, there do not exist reasonable grounds for believing that petitioner is not guilty of the offence punishable under Section 20(b)(i) of the Act, he is not entitled to be released on bail.
13. I accordingly dismiss this bail petition. Petitioner shall, however, be at liberty to file fresh bail petition after the statements of Motbirs pertaining to the recovery memo of the 'ganja are recorded by the learned trial Judge.