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2003 DIGILAW 237 (CAL)

SUBHASH BAPARI v. STATE OF WEST BENGAL

2003-05-13

P.K.BISWAS

body2003
P. K. BISWAS, J. ( 1 ) THIS is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure filed at the instance of the accused petitioner subhash Bapari seeking for a clarification whether in the instant case the statutory period of detention would be 60 days under Section 167 (2) of Cr. P. C. or it should be 180 days as has been held by the learned Special Judge in his order dated 17. 2. 2003. ( 2 ) THE short facts leading to the filing of this application are as under: the present prosecution has been started upon the allegation that on 18. 12. 2002 at 16. 05 hrs, the Officer-in-Charge of Ashokenagar Police station on receipt of a telephonic information had been in front of the ashokenagar Railway Station along with available force at the back side of Rickshaw stand near Bahi Bhai Club. The present petitioner was detained there while he was found to be selling heroin. ( 3 ) TO work out the aforesaid information, the person of the petitioner was searched in presence of the circle inspector of police of Habra Circle and other available witnesses and force and after observing all necessary formalities. Upon aforesaid search, one cellophane paper packet containing snuff coloured sticky substance was recovered which was said to be heroin and 8 small newspaper packets containing snuff coloured sticky substance said to be heroin were also recovered and after proper weighment those came to be 19. 950 gms. , in total and a cash of Rs. 607- inside a white colour polythene carry bag which was carried by the petitioner in his right hand, was also recovered. ( 4 ) THE aforesaid articles were therefore, seized under a proper seizure list duly signed by the witnesses and on such application Ashokenagar p. S. case No. 226 dated 18. 12. 2002 under Section 21/27 of the Narcotic drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the n. D. P. S. Act) was started. ( 4 ) THE aforesaid articles were therefore, seized under a proper seizure list duly signed by the witnesses and on such application Ashokenagar p. S. case No. 226 dated 18. 12. 2002 under Section 21/27 of the Narcotic drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the n. D. P. S. Act) was started. ( 5 ) IT has been alleged by the petitioner that the alleged contavention in the present case involves quantity lesser than the commercial quantity, but greater than the small quantity and, thus, this becomes punishable under section 21 (b) of the N. D. P. S. Act with rigorous imprisonment for a term which may extend to 10 years and a fine which may extend to one lakh rupees as amended by Act 9 of 2001 and Item No. 56 of the Table published in the notification No. S. O. 1055 (E) dated 19. 10. 2001 published in the Gazette of india, Extra. , Pt II, Section 3 (II) dated 19. 10. 2001. ( 6 ) IT has further been alleged that this being the position of this case, after the expiry of the statutory period as specified in Paragraph (a) of proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure which is 60 days, the petitioner filed one application praying for bail on the aforesaid ground on the expiry of the statutory period, but the learned Court has refused to entertain the bail application on the ground holding, inter alia, that the statutory period of detention would be 180 days which have not yet been elapsed. ( 7 ) BEING aggrieved by and dissatisfied with the aforesaid order, the petitioner has come up before this Court seeking for the clarification alleging that the learned Special Judge has passed the impugned order without due application of his judicial mind and alleging, inter alia, that the learned Special judge has failed to consider the provisions laid down under Section 36 (A) (4) of the N. D. P. S. (Amendment) Act, 2001 as the aforesaid provision has only been made applicable in respect of the persons accused of an offence punishable under Section 19 or 24 or 27a or for offences involved in the commercial quantity. Accordingly, he has prayed for the aforesaid clarification. Accordingly, he has prayed for the aforesaid clarification. ( 8 ) THE learned Counsel appearing for the petitioner drawing my attention to a decision reported in 2001 C Cr LR (SC) 374 in the case of rajeev Chaudhary v. State (N. C. T.) of Delhi and also placing his reliance on a decision of the Division Bench of this Court in the case of Jayanta Majhi and Ors. v. State has contended before me that since the provision of Section 167 (2) of the Code of Criminal Procedure are made applicable with the only exception in respect of the provisions as envisaged in Section 36 (A) (4) of the n. D. P. S. Act, 2001 in respect of the offences mentioned therein, the statutory period of detention in the instant case, wherein allegation has been levelled against the petitioner in respect of the offence involved under Section 21 (b) of the N. D. P. S. Act, should be only 60 days and in any event, it cannot be 180 days. ( 9 ) IN opposing the aforesaid contention of the petitioner, Mr. Kazi safiullah, learned P. P. , appearing for the State/o. P. and Mr. Malay Singh, appearing for the N. D. P. S. Deptt. , both have contended that since in the Act itself, it has been prescribed that the punishment should be with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh rupees, it should be ninety days since the imprisonment in this case can be for a clear period of 10 years or less and since it has touched the outer limit of 10 years, the statutory period should be regarded as 90 days and not as 60 days. ( 10 ) I have given my anxious consideration over the rival submissions made by the parties. Looking into the provisions of the N. D. P. S. (Amendment) act, 2001 specially the provisions of Section 21 (b) and the corresponding period as provided in Section 167 (2) of Cr. P. C. and viewing the same in the light of the ratio laid down by the Apex Court in the decision of Rajeev chaudhary v. State (N. C. T.) of Delhi (supra) and the ratio laid down by the division Bench of this Court in the case of Jayanta Majhi and Ors. P. C. and viewing the same in the light of the ratio laid down by the Apex Court in the decision of Rajeev chaudhary v. State (N. C. T.) of Delhi (supra) and the ratio laid down by the division Bench of this Court in the case of Jayanta Majhi and Ors. v. State, (supra) I hold clearly that in the instant case for the offence involved under section 21 (b) of the N. D. P. S. Act, the statutory period for the detention should be for a period of 60 days since under the aforesaid Section of N. D. P. S. Act, the imprisonment can vary from minimum to maximum of 10 years and as such it cannot be said that imprisonment prescribed for the aforesaid offence is not less than 10 years. ( 11 ) SO, the finding of the learned Special Judge, Barasat to the contrary as reflected in the Order No. 5 dated 17. 2. 2003 is unsustainable in law and, therefore, be set aside. ( 12 ) THUS, this revisional application stands disposed of.