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2006 DIGILAW 988 (MP)

Anil Kumar v. State of M. P.

2006-08-18

S.C.VYAS

body2006
ORDER 1. Both parties heard. Case diary perused. This is first application filed u/s. 439 read with section 167 (2) of CrPC for grant of bail in connection with Crime No. 84/06 registered u/s. 8 read with S. 15 of NDPS Act at Police Station Sitamou, Mandsaur. 2. It is alleged that both the applicants were having in their possession 25 Kgms. of poppy husk each without any valid authority or licence on 25.3.2006. They were apprehended by the police on that date and the alleged contraband was seized from their possession. Later on, charge sheet was filed against them in the concerning Court. 3. Learned counsel for the applicants submitted that applicants were arrested on 25.3.2006 and first remand was granted on 26.3.2006 by the concerning Court and the applicants filed the application u/s. 439 read with section 167 (2) of the Code of Criminal Procedure for grant of bail before the trial Court on 26.5.2006 and the same was dismissed by that Court and thereafter charge sheet was filed on 29.5.2006 which was 63rd day from the date of first remand. 4. Learned counsel for the applicants submitted that the quantity of the alleged poppy husk which was found in possession of the present applicants was below that the commercial quantity and therefore charge sheet was required to be filed within 60 days from the date of remand as per the provisions of S. 167 (2) of CrPC. Therefore, learned counsel for the applicants submitted that they are entitled to release on bail on this ground alone. Learned counsel for the applicants further submitted that the quantity of the alleged contraband is below than the commercial quantity prescribed in NDPS Act and therefore, S. 37 of the NDPS Act does not create any bar on their enlargement on bail and therefore on this ground the applicants are entitled to be released on bail. 5. Learned counsel for the applicants placed heavy reliance on the judgment of full bench Himachal Pradesh High Court in the case of Ratto v. State of Himachal Pradesh reported in [IV (2003) CCR 142 (FB)] wherein, the word "commercial quantity" has been interpreted by the full bench of Himachal Pradesh and it has been held that under the provisions of S. 2 (vii) (a), the. meaning of the word commercial quantity means greater than the quantity specified by Central Government by notification. meaning of the word commercial quantity means greater than the quantity specified by Central Government by notification. It has also been held that as per the notification issued by Central Government on 19.10.2001, the quantity specified by Central Government for poppy husk is 50 Kgms. And therefore, learned counsel for the applicants submitted that, in view of the decision of the full bench of the Himachal Pradesh High Court, the commercial quantity of poppy husk is quantity more than 50 Kgms and not 50 Kg. itself. 6. Learned counsel for the applicants placed heavy reliance on unreported judgment of this High Court in the case of Shehjad Khan v. State of Madhya Pradesh, certified copy of which has been produced for perusal of this Court. In that case also this Court relying on the full bench judgment of the Himachal Pradesh High Court held in para 10 as under: " 10. In view of the law laid down by Himachal Pradesh High Court, on perusal of the facts of the present case, the total quantity which has been seized from the possession of the appellant is 250 Gms. which is provided in the Schedule of the NDPS Act, therefore, this cannot be presumed to be the commercial quantity unless it is found to be more than 250 Gms. In these circumstances, the case of the present appellant will come within the purview of section 21 sub-section (b) of the NDPS Act and this quantity should be presumed to be the quantity lesser than the commercial quantity, but greater than the small quantity wherein the sentence provided under the NDPS Act is the sentence which may extend to ten years and with fine which may extend to Rs. 1.00 lac. 7. Learned Dy. Advocate General also concedes that the commercial quantity of any contraband as per the provisions given in the NDPS Act u/S. 2 (vii) (a) is quantity greater than the quantity specified by Central Government in the notification and therefore in the present case the commercial quantity of poppy husk was more than 50 Kgms. and not 50 Kg. itself. Dy. Advocate General concedes that the poppy husk which was recovered from the possession of present applicants was just below than the commercial quantity and therefore the charge sheet should have been filed within 60 days in compliance of provisions of S. 167 of Code of Criminal Procedure. 8. and not 50 Kg. itself. Dy. Advocate General concedes that the poppy husk which was recovered from the possession of present applicants was just below than the commercial quantity and therefore the charge sheet should have been filed within 60 days in compliance of provisions of S. 167 of Code of Criminal Procedure. 8. This Court sees no reason to differ with the opinion of another bench of this High Court as expressed in Shehjad v. State of Madhya Pradesh following full bench judgment of Himachal Pradesh High Court and therefore it appears that the quantity of the alleged contraband which was found in possession of the present applicants was below than the commercial quantity and as the charge sheet was filed on 63rd day from the date of first remand therefore it is held that charge sheet has not peen filed within 60 days and on this ground alone applicants arc entitled to be released on bail. 9. Therefore, the application filed by the applicants is hereby allowed and it is ordered that applicants be released on bail on their furnishing a personal bond in the sum of Rs.50,000/- each with separate surety of like amount each to the satisfaction of the trial Court for their appearance before that Court/trial Court on all dates as may be fixed in this behalf during the pendency of trial. The applicants are also directed to abide the conditions enumerated under section 437 (3) of CrPC. 10. Further, it is made clear that in the event of violation of any condition, the trial Court will be free to take the applicants in custody and to send them to jail for the remaining period of trial.