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2001 DIGILAW 747 (CAL)

SUBHAS ROY v. STATE

2001-12-13

MALAY KUMAR BASU

body2001
M. K. BASU, J. ( 1 ) THE matter is taken up for passing order on the bail petition filed by the petitioner. It has been argued on his behalf that the offence under section 20 NDPS Act, 1985 should be treated as bailable in view of the recent amendment of the said Act (Act No. 9 of 2001) whereunder the expression 'small quantity' has been redefined. According to Mr. Mukherjee the quantity of ganja seized in this case being only one kilogram will fall within the category of 'small quantity' rendering the offence punishable with imprisonment for one year only. His further contention is that in view of the provisions of section 41 of the amended NDPS Act the lesser punishment which has been prescribed under the amended section 20 of the Act should be awardable in respect of all pending matters including bail-petitions and in that view of the matter under the provisions of the second schedule of the Criminal Procedure Code the offence should be treated as a bailable one, the maximum punishment that can be awarded for such an offence being only one year. Mr. Mukherjee further attracts our attention to the provisions of section 40 of the said Act also read with its section 2 and argues that the intention of the legislature has been made all the more clear by providing that every rule made under this Act by the Central Government and every Notification or Order issued under Clause (VIIa), Clause (XI), Clause (XXIIIa) of section 2, section 3, section 7-A, section 9a and Clause (a) of section 27 shall be laid, as soon as may be, after it is made or issued. According to him, the notification in question being in respect of section 2 (xxiiia) this provision of section 40 will be attracted and it is to be assumed that the intention of the legislature has been to expeditite the issuance of notification by the Government. So that the amended provisions may be given effect to as soon as possible after the enactment came into existence. ( 2 ) MR. So that the amended provisions may be given effect to as soon as possible after the enactment came into existence. ( 2 ) MR. Moitra learned Additional Public Prosecutor opposes this contention of the petitioner and submits that in such matters the date as announced by a notification from which the enactment is to take effect should be regarded as unchangeable and the Court has no other alternative but to give effect to the legislation on and from that date. He refers to the preamble of the Government Notification in question in support of this contention that the amended Act in question (Act No. 7 of 2001) is to take effect from the date announced, that is, 2nd day of October, 2001. ( 3 ) WE have carefully examined the rival contentions of the learned counsel for both the sides. We are of the opinion that in this case the above reasoning of Mr. Mukherjee will not be applicable in view of the fact that the seized ganja in dispute weighs full one kilogram and is not of a lesser quantity. Under the Government notification in question read with amended section 3 (XXIIIa) in order to come within the 'small quantity' the ganja recovered from an accused person should be less than 1000 grams or one kilogram. Therefore it is clear that the ganja which has been seized from the possession of the accused-petitioner being just one kilogram does not fall within the category of 'small quantity' and obviously it does not come within the purview of the salutary provisions of the amended Act. ( 4 ) IF it is not treated as 'small quantity', then the question is whether it will have to be governed by the first Clause of section 37 of the Act. In order to grant bail in such a case so long certain pre-conditions were to be fulfilled. But under the aforementioned latest amendment of the Act the offence under section 20 (b) (i) has been excepted and the rigours of section 37 in the matter of granting bail to such an accused will no longer come in the way. In order to grant bail in such a case so long certain pre-conditions were to be fulfilled. But under the aforementioned latest amendment of the Act the offence under section 20 (b) (i) has been excepted and the rigours of section 37 in the matter of granting bail to such an accused will no longer come in the way. Because, as per section 7 (ii) B of the said Amendment Act (Act No. 9 of 2001) the provisions of section 20 (b) (i) have undergone a change to the effect that where such contravention relates to sub-clause (b) and involves a quantity lesser than commercial quantity but greater than 'small quantity', the offence will be punishable with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. According to Mr. Mukherjee, in respect of such a punishment-clause the recent judgment of the apex Court will be attracted whereunder it has been held that with an offence which is punishable with imprisonment for a term of not less than ten years occurring in the proviso to section 167 (2) of the Cr. PC, the expression "imprisonment which may extend to ten years" occurring in section 386 of the IPC cannot be equated. The expression, "imprisonment which may extend to ten years" is to be distinguished from the expression, "imprisonment for a term not less than ten years" since in case of the latter the imprisonment may vary from minimum to maximum of ten years and it cannot be said that the imprisonment prescribed is not less than ten years and in that view of the matter in the latter case the period of custody, when charge-sheet is not filed, should be sixty days under section 167 (2) of the Code. We are inclined to accept this contention of Mr. Mukherjee in view of the fact that the amended section 37 no longer includes an offence under section 20 (b) (i) of the Act. Vide section 17 of the Amendment Act which substituted the words, "a term of imprisonment of five years or more under this Act" by the words, "offence under section 19 or section 24 or section 27a and also for offences involving commercial quantity". Vide section 17 of the Amendment Act which substituted the words, "a term of imprisonment of five years or more under this Act" by the words, "offence under section 19 or section 24 or section 27a and also for offences involving commercial quantity". The present offence in question is thus deliberately excluded from the arena of section 37 so that the question as to whether bail should be granted or not in respect of an accused in such an offence is left for being governed by the general provisions of the Cr. PC as contained under section 439 read with section 167 (2) thereof. Mr. Mukherjee rightly contends that if that be so, then the recent ruling of a Division Bench of the apex Court reported in 2001 C. Cr. LR (SC) 374 (Rajib Chudhari v. State of Delhi) discussed above will come to afford the principle for the purposed of considering the question of granting bail to the petitioner. ( 5 ) THE contention of Mr. Safiullah that the provisions of the new Act cannot the applied to the present case due to the fact that the Government Notification in question will pose a bar, cannot accepted by us for the reason that thereby the intention of the legislature as reflected in the provisions of section 41 will be given a complete burial. In this connection we rely upon an earlier unreported judgment of this Division Bench delivered on 29th November, 2001 in CRM 3914 of 2001 (Chandan Das v. The State) adjudicating upon identical questions. We have been of the opinion that the intention of the legislature cannot be overridden by an Act of the Government in the form of Notification and when there is a conflict between the clear mandate of the Parliament on the one hand and the provisions of Government Notification issued in compliance with the dictates thereof, the former shall prevail. In the present case as per the Government Notification in question the Amendment Act is to take effect on and from 2nd October, 2001 and it is the contention of Mr. Moitra that since the present case was already pending on that date, under no stretch of logic that case can be brought within the fold of the Amendment Act. But we are unable to agree with Mr. Moitra that since the present case was already pending on that date, under no stretch of logic that case can be brought within the fold of the Amendment Act. But we are unable to agree with Mr. Moitra for the reason that under section 41 of the Amendment Act it has been specifically provided that notwithstanding anything contained in sub-section 2 of section 1, that is to say, the provision as to the date and time from which the Act would come into force, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principle Act as amended by this Act and accordingly any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than punishment for which he is otherwise liable at the date of commission of such offence. This provisions are strengthened and are made more clear by virtue if the statement of the objects which prompted the introduction of this amendment one of which being liberalisation of the bail provisions. If the present case is kept outside the purview of the salutary provisions of the Amendment Act then the abovementioned provisions of the same would be rendered totally meaningless and without significance, because those provisions were enacted for no other purpose than to cover such pending matters. If the Government while framing the Notification fails to respect such intention of the legislature properly and introduces its own views in the Rules or the Notification in contravention of such mandates of the legislature, then a Court of law has every jurisdiction and competence to set the wrong it right in order to bring such Notifications into conformity to the purposes of the Act. A Government Body while framing rules or issuing Notifications include any particulars enactment cannot everstep its limits beyond carrying out the wishes of the law making body. Here the sole intention of the legislature was to see that the salutary provisions of the Amendment Act be given effect to with utmost expedition, but by virtue of the Notification issued by the Government amounting the abovementioned date on which the Act was to take effect that object does not appear to have been properly pursued. Here the sole intention of the legislature was to see that the salutary provisions of the Amendment Act be given effect to with utmost expedition, but by virtue of the Notification issued by the Government amounting the abovementioned date on which the Act was to take effect that object does not appear to have been properly pursued. In the result, therefore, we are inclined to apply the amended provisions of the NDPS Act (Act No. 9 of 2001), to the present case and to hold that in view of the aforementioned ruling of the apex Court the petitioner having already been detained in custody for more than sixty days should be found entitled to get bail at this stage. Accordingly we direct that the petitioner shall be released on his furnishing bail bond for Rs. 10,000/- with two sureties of Rs. 5,000/ -. each one of whom must be local to the satisfaction of the learned Additional Sessions Judge, 1st Court, Suri, Birbhum. D. P. Sengupta, J.- I agree. Petition allowed.