KAUSHIKKUMAR v. STATE — 1989 DIGILAW 73 (GUJ)

SONI, J. ( 1 ) THIS appeal is directed against the judgment and order dated 30-9-1988 of the Additional Sessions Judge, Nadiad, in Sessions Case No. 78 of 1988 holding the appellant guilty under Sec. 20 (b) (i) of the Narcotic drugs and Psychotropic Substances Act, 1985 (N. D. P. S. Act for short) and awarding to him a sentence of 5 years Rigorous Imprisonment and a fine of Rs. 50,000. 00 and in default 6 months further R. I. ( 2 ) THE appellant (original accused No. 1) and eight other accused were charged in the aforesaid Sessions Case with have committed offences under secs. 17, 18, 20 and 29 of the N. D. P. S. Act and the original accused No. 2 was further charged with having committed an offence under Sec. 25 of the said Act. *decided on 4-10-1990. Criminal Appeal No. 941 of 1988 against the order of conviction and sentence dated 30-9-1988 passed by the Addl. Sessions Judge, Nadiad in Sessions Case No. 78 of 1988. ( 3 ) BRIEFLY, the prosecution case was as follows. The Police Sub-Inspector of Dakor City Police Station, on receipt of information that the original accused no. 2-Rabiabibi was dealing in Opium, Ganja and Charas at her residence situated in the compound of Navalsha Pir Dargah at Dakor, raided the said house on 27-9-1987. The P. S. I. had taken with him two panch-witnesses at that time. When the Police party and the panchas reached the house of the accused No. 2, the said accused and the present appellant (accused No. 1) were found sitting on a cot outside the house. Two of the sons of the accused No. 2, who were in the house, ran away on seeing the arrival of the Police party. The appellant was found to have two plastic bags with him. On search of the said plastic bags, it was found that there were 38 packets containing 150 grams of Ganja in all in one of the bags, and there were 51 packets containing 100 grams of ganja in all in the other bag. The accused No. 2 had with her a exine bag and it was also found to contain small plastic packets containing in all 150 grams of Opium. On further search of the house of the accused No. 2, some more quantity of Ganja and Charas was found. The accused No. 2 had with her a exine bag and it was also found to contain small plastic packets containing in all 150 grams of Opium. On further search of the house of the accused No. 2, some more quantity of Ganja and Charas was found. In the course of the investigation, the house of the other accused were also taken search of , but nothing was found therefrom. So far as the accused Nos. 3 and 4 are concerned, it is stated that the Police had found out more contraband (secreted at certain places) pursuant to the statements made by the accused Nos. 3 and 4. ( 4 ) WE are concerned in this appeal with the original accused No. 1, i. e. , the present appellant, and it may be noted that the prosecution case is that it was confirmed by chemical analysis of the substance, found from him, that the same was Ganja. ( 5 ) THE appellant as well as the other eight accused in the case pleaded not guilty before the learned Addl. Sessions Judge. However, on the evidence before him, the learned Judge has concluded that the prosecution had brought home to the appellant the charge of being found in possession of Ganja and accordingly the learned Judge has convicted him of the offence under Sec. 20 (b) (i) of the n. D. P. S. Act. It may be noted that the original accused No. 3-Rabiabibi has also been convicted by the learned Judge of the offences under Secs. 17, 20 (b) (i) and 20 (b) (ii) of the N. D. P. S. Act and the original accused Nos. 3 and 4 have also been convicted of the offences under Secs. 17 and 20 (b) (i) and Sec. 17 of the N. D. P. S. Act respectively. It is further pertinent to note that the learned judge has acquitted all the accused of the offence under Sec. 29 of the N. D. P. S. Act. So far as the accused Nos. 5 to 9 are concerned, they have been acquitted of all the charges levelled against him. ( 6 ) IT is clear from the judgment of the learned Judge that the only finding recorded by him against the present appellant is that he was found in possession of 250 grams of Ganja in all. So far as the accused Nos. 5 to 9 are concerned, they have been acquitted of all the charges levelled against him. ( 6 ) IT is clear from the judgment of the learned Judge that the only finding recorded by him against the present appellant is that he was found in possession of 250 grams of Ganja in all. The learned Judge has accordingly convicted the appellant of the offence under Sec. 20 (b) (i) of the n. D. P. S. Act only for the said find of 250 grams of Ganja from his possession. The judgment of the learned Judge makes it clear that he has not held the appellant guilty of or, in any way responsible for, the contraband allegedly found from the bag, which the original accused No. 2 had with her, while she was sitting on the cot, and similarly the learned Judge has not held the appellant responsible even for the contraband allegedly found on the search of the house of Rabiabibi. It is also not the finding of the learned Judge that the present appellant was in any way connected with the alleged find of contraband from the possession of the original accused Nos. 3 and 4. That is why the appellant has not been held guilty of the offence under Sec. 29 (abetment and conspiracy ). ( 7 ) THE appellant-accused No. 1 has preferred this appeal against the judgment and order of conviction referred to hereinabove. Accused Nos. 2, 3 and 4 have respectively preferred Criminal Appeals Nos. 933 of 1988, 867 of 1988 and 847 of 1988 before this Court. All those appeals are admitted and ordered to be heard together. The learned Advocate for the appellant, filed an application for bail, being Misc. Criminal Application No. 2298 of 1990. When this application came up for hearing, he came out with a legal contention that even if it is assumed that the appellant was found in possession of Ganja on 27- 9-1987 as alleged by the prosecution and as mentioned in the charge framed against him, the said possession would not amount to an offence punishable under sec. 20 (b) (i) of the N. D. P. S. Act. As we have found some substance in this contention, we have decided, with the concurrence of the learned Advocate for the appellant and the learned A. P. P. Mr. 20 (b) (i) of the N. D. P. S. Act. As we have found some substance in this contention, we have decided, with the concurrence of the learned Advocate for the appellant and the learned A. P. P. Mr. Dave, to separate this appeal from the other appeals and take up final hearing of this appeal instead of hearing the bail application. ( 8 ) MR. Bhatt, learned Advocate for the appellant, contended that the appreciation of evidence by the learned Judge was not correct and that the learned judge should have found, as a matter of fact, that the prosecution had failed to prove that the appellant had in his possession Ganja. In this case, however, we do not consider it necessary to go into the factual aspect of the matter because, in our opinion, the legal contention raised by Mr. Bhatt against the validity of the conviction order deserves to be upheld without any hesitation. This contention raised by Mr. Bhatt was that even if it is assumed that the appellant was found in possession of Ganja on 27-9-1987 as alleged by the prosecution and as mentioned in the charge framed against the accused, the said act on the part of the appellant would not amount to the offence made punishable under sec. 20 (b) (i) of the N. D. P. S. Act. ( 9 ) IN order to appreciate this contention, it will be necessary first of all to refer to Sec. 20 of the N. D. P. S. Act. The material part thereof read as under:"20. Punishment for contravention in relation to cannabis plant and cannabis : whoever, in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder :- (a ). . . . . . . . . . . . (b ). . . possesses. . . cannabis shall be punishable - (i) where such contravention relates to Ganja. . . . . . with rigorous imprisonment for a term which extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii ). . . . . . . . . . . . "it is only too obvious even on a plain reading of the aforesaid provision of sec. . . . . . with rigorous imprisonment for a term which extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii ). . . . . . . . . . . . "it is only too obvious even on a plain reading of the aforesaid provision of sec. 20 that it makes possession of Ganja punishable thereunder, provided such possession is in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder. We are not shown any rule or order made under the Act, whereby possession of Ganja was prohibited at the relevant time, i. e. , on 27-9-1987. Since the possession of Ganja on 27-9- 1987 could have been held to be a punishable offence only if such possession was proved to be in contravention of any of the provisions of the Act, the question which the learned Judge was required to address himself to was whether, under any of the provisions of the Act, possession of Ganja was prohibited on the relevant day. We are sure that if the learned Judge had addressed himself to this question, he would have immediately referred to Sec. 8 of the Act. The material part of Sec. 8 provides :"no person shall - (a ). . . . . . (b ). . . . . . (c ). . . . . . possess. . . . . . any Narcotic Drug or Psychotropic Substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the Rules or orders made thereunder and the case where any provision imposes any requirement by way of licence, permit or authorisation, also in accordeance with the terms and conditions of such licence, permit or authorisation: provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of Ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of Ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government, may, by Notification in the Official Gazette, specify in this behalf". ( 10 ) READING Sec. 2 (iii) (b) together with Sec. 2 (xiv), it should be clear that cannabis (hemp) is defined as a narcotic Drug and Ganja is included in the term cannabis (hemp). ( 11 ) IT is indisputably clear even on a plain reading of the provisions of Sec. 8, and in particular the proviso thereto, that prohibition against the possession of Ganja is to take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in that behalf. Thus, the Act undisputedly contains a provision prohibiting possession of Ganja, but at the same time it provides that such prohibition is to take effect only from the date to be specified by the Central Government for that purpose by a notification in the official Gazette. The question, therefore, is whether on the relevant date, i. e. on 27-9-1987, there was any prohibitioin against possession of Ganja by virtue of any notification issued under N. D. P. S. Act by Central Government specifying the date which such prohibition against possession of Ganja was to take effect. The learned A. P. P. Mr. Dave has in this connection brought to our notice the notification No. 12 of 1989 OPIUM dated 30-5-1989 published in the Gazette of India, Extraordinary, of even date. The text of this notification is as follows :"in exercise of the powers conferred by the first proviso to Sec. 8 of the Narcotic drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby specifies the 13/12/1989 as the date from which the prohibition against the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of Ganja for any purpose other than medical and scientific purpose shall take effect. " ( 12 ) IT is clear from the above notification that it is issued in exercise of the powers conferred on the Central Government by the first proviso to Sec. 8 of the N. D. P. S. Act and thereby the Central Government has specified 1 3/12/1989 as the date from which prohibition against the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter- state and export inter-State of Ganja for any purpose other than medical and scientific purpose is to take effect. Obviously, therefore, there was no prohibition under the N. D. P. S. Act against possession of Ganja till 13/12/1989, therefore, it cannot be said that possession of Ganja on the part of the appellant on 27-9-1987, even if assumed to have been proved by the prosecution, was in contravention of the provisons of Sec. 8 of the N. D. P. S. Act and was, therefore, punishable under Sec. 20 (b) (i) of the N. D. P. S. Act. The learned A. P. P. could not bring to our notice any other provision of the Act or rule or order made thereunder, which would stand contravened by the possession of Ganja on 27-9-1987. ( 13 ) IN Criminal Appeal No. 13 of 1989 in the case of "sureshbhai khandabhai Solanki v. State of Gujarat", decided on 10/11-9-1990, one of us (N. B. Patel, J.) speaking for the Bench has also taken the view that in view of the provisions of Sec. 8 and its proviso, the prohibition against possession of Ganja is to take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in that behalf. ( 14 ) WE, therefore, find that the learned Judge has committed a clear error of law in holding the appellant guilty of the offence punishable under Sec. 20 (b) (i) of the N. D. P. S. Act. ( 15 ) WE may incidentally mention that the appellant could have been charged under Sec. 66 (1) (b) of the Bombay Prohibition Act, but he has not been so charged. This appeal is decided by us on the question of law raised by the learned Advocate for the appellant without entering into the question with having committed an offence under Sec. 66 (1) (b) of the bombay Prohibition Act for being found in possession of 250 grams of Ganja and further assuming that the said charge had been proved against the appellant, the appellant would have been, at the most, liable to be punished for imprisonment extending upto six months and with fine extend- ing upto Rs. 1000. 00 for the said offence. In the present case, we are informed by the learned A. P. P. that the appellant has already undergone imprisonment for a period of about three years by now. 1000. 00 for the said offence. In the present case, we are informed by the learned A. P. P. that the appellant has already undergone imprisonment for a period of about three years by now. This being the position, the learned a. P. P. fairly agreed that it may not now be just to remand the case back for the framing of a charge for the offence under Sec. 66 (1) (b) of the Bombay act against the appellant. ( 16 ) IN the result of the above discussion, we allow this appeal and set aside the order of conviction and sentence recorded against the appellant and acquit him of all the charges levelled against him and order that he be set at liberty forthwith, if he is not required in any other case. Fine, if paid, be refunded. .