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2001 DIGILAW 743 (KAR)

K. P. SADATH v. STATE OF KARNATAKA

2001-09-26

MOHAMED ANWAR

body2001
MOHAMED ANWAR, J. ( 1 ) HEARD both sides. ( 2 ) BOTH these petitioners, who are arraigned as A-2 and A-1 respectively, in Crime No. 109/2001 of the respondent Police Station for the offence under S. 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('n. D. P. S. Act'), have approached this Court with their petition under S. 439 Cr. P. C. when their similar application for bail was rejected by the learned Sessions Judge by his order dated 9-7-2001. ( 3 ) THE prosecution case is that, on 22-6-2001, at about 10. 30 a. m. , at Meenupete of Virajapet City in Kodagu District, both the petitioners were found present when the Deputy Superintendent of Police of Virajapet appeared there with his party on receiving credible information that petitioners were in possession of Ganja. Then the person of A-1, who is petitioner No. 2 herein, was searched. He was found in possession of 12 packets of Ganja weighing 5 grams each, totalling 60 grames, while A-2, petitioner No. 1 herein, was found in possession of 11 packets of Ganja weighing 50 grams each totalling 550 grams. Then this contraband came to be duly seized by the Deputy Superintendent of Police under a panchanama in the presence of panchas and the said case was booked against them. ( 4 ) LEARNED counsel for petitioners initially contended that the maximum punishment prescribed for the alleged offence under S. 20 (b) of the N. D. P. S. Act being the imprisonment extending upto 5 years, the rigours of the provisions of S. 37 (1) (b) in the matter of bail will not be attracted and, therefore, the petitioners are entitled to be released on bail. In support of this contention, a Single Bench decision of this Court in Dharmasingh v. State of Karnataka ILR 1992 Kant 3137 was cited by him. The Court finds that in view of the law laid down by Supreme Court in its recent decisionin the case of Intelligence Officer, Narcotics Control Bereau v. Sambhu Sonkar (2001)2 LRI 223 : (2001 Cri lj 1082), the proposition enunciated by this Court in the case of Dharmasingh v. State of Karnataka, supra, is not a good law. The Court finds that in view of the law laid down by Supreme Court in its recent decisionin the case of Intelligence Officer, Narcotics Control Bereau v. Sambhu Sonkar (2001)2 LRI 223 : (2001 Cri lj 1082), the proposition enunciated by this Court in the case of Dharmasingh v. State of Karnataka, supra, is not a good law. ( 5 ) SECTION 37 of the N. D. P. S. Act envisages certain restrictions in the matter of grant of bail to an accused who is allegedly involved in commission of any offence under the Act. Its material portion is extracted below :"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a ). . . . . . . . . . . . . . . . . . (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. ( 6 ) AS indicated, the offence under S. 20 (b) alleged against petitioners is made punishable under sub-clause (i) of S. 20 (b) with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to Rs. 50,000/ -. ( 6 ) AS indicated, the offence under S. 20 (b) alleged against petitioners is made punishable under sub-clause (i) of S. 20 (b) with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to Rs. 50,000/ -. Interpreting the words "punishable for a term of imprisonment of five years or more under this Act" occurring in sub-clause (ii) of S. 37 (1) of the Act as excluding the offences which are made punishable under the Act with imprisonment extending upto five years, the accused in the case of Sambhu Sonkar ( AIR 2001 SC 830 ), supra, who were challaned for the offence under S. 20 (b) of the Act, had been granted bail by the High Court of Calcutta. That order was challenged before the Hon'ble Supreme Court on the ground that the aforestated provisions of the Act are attracted to the offence punishable under S. 20 (b) and, therefore, the view taken by Calcutta High Court was not legally correct. Thus, the question which arose for consideration of the Supreme Court in that case was : "the limited question involved in this appeal is whether the restrictions imposed under S. 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 ('the Act') would be applicable in a case where offence is punishable under S. 20 (b) (i) for possessing Ganja". Referring to its earlier decision in Maktool Singh v. State of Punjab (1999)3 SCC 321 : (1993 Cri LJ 1825), the said question was answered in the affirmative by the Supreme Court. Therefore, the decision of this Court in Dharmasingh, supra, is no longer a good law. ( 7 ) NEXTLY it was contended by Mr. Chandrashekar, learned counsel for petitioners, that as the total quantity of Ganja that was found in possession of A-1 being 60 grams only, it constituted "small quantity" within the meaning of S. 27 of the N. D. P. S. Act, for which it provides punishment of imprisonment for a term which may extend to one year or with fine or with both. But then, it is not in dispute, as has been observed by the learned Sessions Judge in his said order that this accused is involved in another offence under the Act which is registered against him by the concerned authority in Special Case (NDPS) No. 3/1998. But then, it is not in dispute, as has been observed by the learned Sessions Judge in his said order that this accused is involved in another offence under the Act which is registered against him by the concerned authority in Special Case (NDPS) No. 3/1998. Therefore, he is disentitled to the remedy of bail. ( 8 ) MR. Chandrashekar further pressed a point for my consideration that, as indicated in the seizure panchanama, the said Dy. S. P. who conducted search of both petitioners did not inform either of them that, in law, they had the right to get their persons searched by a Magistrate also, which was an imperative requirement of law under S. 42 of the Act. On this count, Mr. Chandrashekar maintained that the petitioners are entitled to be released on bail. He proposed to rely on a decision of Delhi High Court in (1994)3 Crime 99 (Vidyawati v. State ). What would be the effect of such an illegality is a matter, in my humble opinion, to be considered at the trial on the merits of the prosecution case against the accused and that the same be urged as a good ground for bail to the accused involved in commission of the alleged offence under the Act. Therefore, this point, I find is of little avail to them. ( 9 ) FOR the reasons aforesaid, the petition is dismissed. Petition dismissed. --- *** --- .