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2000 DIGILAW 269 (HP)

RAM DASS v. STATE OF H. P.

2000-10-05

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—By this application the accused-petitioner (herein-after referred to as the accused) has prayed for his release on bail in case FIR No. 92/2000 dated 7.2.2000 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the Act), registered at Police Station, Una on the grounds that he has been falsely implicated in the commission of the offence, that the search conducted by the police was not in accordance with the law and that even if the case of the prosecution is believed he was found in possession of 20 gms only of charas, therefore, the quantity so recovered being small quantity the case will be covered under Section 27 of the Act. 2. Case of the prosecution is that on receipt of some secret information that one Rajesh Kumar (Co-accused in the case) owner of a Motor Cycle Repair Shop at Nangal Road Una and the accused who is his servant were carrying on the business of purchasing and selling charas, the police carried out the search and found Rajesh Kumar in possession of 80 gms. of charas whereas 20 gms charas was recovered from the possession of the present accused. 3. I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the respondent and have also gone through the police report. 4. It is contended by the learned Counsel for the accused that in view of S.O. 527(E) dated 16.7.1996 25 gms of charas will be "small quantity" for the purpose of Clause "b" of Section 27 of the Act which provides the maximum imprisonment of six months and/ or fine only which is less than the punishment contemplated by Section 37 wherein the bail cannot be granted unless certain conditions are fulfilled, therefore, the accused is entitled to be released on bail. 5. On the other hand the learned Assistant Advocate General has contended that this is not the case of the accused that the charas recovered from his possession was intended for his personal consumption and not for sale or distribution but on the contrary during investigation it has been found that it was meant for sale, therefore the provisions of Section 27 of the Act are not attracted in this case and for all intents and purposes the bail application will be governed by the provisions of Section 37 of the Act. 6. I have given due consideration to the rival contentions advanced for the parties. Section 27 of the Act reads as follows: "27. Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance.—Whoever, in contravention of any provision of this Act, or any rule or order made or permit issued thereunder, possesses in a small quantity, any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or pshychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable,— (a) where the narcotic drug or pshychotropic substance possessed or consumed is cocaine, morphine, diacetyl-mor-phine or any other narcotic drug or any psychotorpic substance as may be specified in this behalf by the Central Government, by notification in the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and (b) where the narcotic drug or pshychotropic substance possessed or consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months or with fine or with both. Explanation.—(1) Por the purposes of this Section "small quantity" means such quantity as may be specified by the Central Government by notification in the official Gazette. (2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person." 7. In view of S.O. 527 (E) dated 16.7.1996 charas weighing upto 25 grams will be covered by the expression "small quantity" as used in Section 27 supra. However, a bare reading of the aforesaid provisions reveal that these provisions will be attracted only in a case where the "small quantity" of the Narcotic Drugs or Psychotropic Substances recovered from the accused is proved to be intended for his personal consumption and not for sale or distribution. In the instant case, the case of the accused is that he is innocent and nothing has been recovered from him. In the instant case, the case of the accused is that he is innocent and nothing has been recovered from him. It is however neither pleaded nor argued that he was in possession of the charas which was intended for his personal consumption and not for sale or distribution. Unless the accused claims that the "small quantity" of the contraband recovered from his possession was for personal consumption and not for sale or distribution he cannot claim the benefit of the provisions of Section 27 of the Act. In the absence of such a claim the bail application will be governed by the provisions of Section 37 of the Act. 8. Section 37 of the Act reads as follows : "37. Offences to he 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 oppose 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." 9. It is evident from the framework of Section 37 supra that a person who is accused of an offence punishable for a term of imprisonment of five years or more under the Act shall not be released on bail unless; (i) the Public Prosecutor is given an opportunity to oppose the bail application, (ii) the Court is satisfied that there are reasonable grounds for believing that such .person is not guilty of such offence, and (iii) he is not likely to commit any offence if released on bail. 10. 10. In view of the material collected by the police it cannot be said at this stage that there are reasonable grounds for believing that the accused is not guilty of the offence complained against and that he is not likely to commit any offence while on bail. The accused, therefore, is not entitled to be released on bail. 11. As a result, this application merits dismissal and is accordingly dismissed. Application dismissed.