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Madhya Pradesh High Court · body

2012 DIGILAW 779 (MP)

Jardar alias Jordar v. State of M. P.

2012-08-06

S.R.WAGHMARE

body2012
ORDER 1. By this application filed under section 439 of the CrPC the applicant Jardar @ Jordar has moved the application for grant of bail being implicated in Crime No.128/2012 registered by Police Station Bhagwanpura, District Khargone for offence under section 8/20 of the NDPS Act. 2. Counsel for the applicant has vehemently urged the fact that it was a case of false implication. Even if the prosecution allegations are considered, counsel submitted that the applicant was found in possession of 8 kgs. of ganja (narcotic contraband). He, however, submitted that the ganja was not recovered from the conscious possession of the applicant. He had full chance of success in the trial and if at all this was first attempt by the applicant and the trial is likely to take long time. Counsel prayed for grant of bail since the applicant has been arrested on 27.4.2012. 3. Counsel for the respondent State, on the other hand, has opposed the submissions of the counsel for the applicant and has stated that the quantity of ganja was 8 kgs., whereas the commercial quantity according to the Schedule along with the Act at Sl.No.55 indicates that 20 kgs. and above of ganja is said to be commercial quantity. He candidly admitted that there are no criminal cases recorded against the applicant. He, however, prayed for dismissal of the application. 4. On considering the above submissions, I find that there is confusion created due to entry No.23 under Schedule under the NDPS Act which states that for cannabis and cannabis resin, charas and hashish the commercial quantity as prescribed would be 1 kg. and above. Ganja is cannabis when translated in English and therefore the confusion. 5. Counsel for the Central Bureau of Narcotics Department Shri Manoj Soni has therefore been called in as Amicus Curiae to clear the confusion regarding the entries in the Schedule. and above. Ganja is cannabis when translated in English and therefore the confusion. 5. Counsel for the Central Bureau of Narcotics Department Shri Manoj Soni has therefore been called in as Amicus Curiae to clear the confusion regarding the entries in the Schedule. He submitted that cannabis has been defined under section 2(iii) of the NDPS Act as follows : (iii) “cannabis (hemp)” means -- (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom. 6. And hence under these circumstances Entry No.23 under the Schedule pertains to 2(iii)(a) ‘charas’ and whereas ganja is flowering or fruiting of the cannabis plants has been prescribed under Serial No.55 of the Schedule and hence he says that ‘ganja’ is not to be confused with ‘charas’ and that separate provision has been made for both under the Schedule. I am, therefore, grateful to the counsel for the Central Bureau of Narcotics who has come to our assistance. 7. Considering the above submissions and in this light I find that the non-commercial quantity has been recovered from the possession of the present applicant and if at all this was first attempt and looking to his young age, the application needs to be allowed since he has been arrested on 27.4.2012. The application is, therefore, allowed. 8. However, stringent measures need to be imposed, therefore, it is ordered that the applicant be released on bail on his furnishing a bail bond for a sum of Rs.1,00,000/- (Rupees One lac only) with one surety of like amount to the satisfaction of the trial Court for his appearance before the concerned trial Court on all dates of hearing as may be fixed by the trial Court in this behalf during the pendency of trial. 9. 9. By way of abundant caution, it is further directed that he shall also mark his presence in the concerned police station on the first Sunday of every month between 10:00 a.m. to 12:00 noon during pendency of the trial. Any default in attendance in Court and marking presence in the concerned police station, would result in cancellation of bail granted by this Court thereby entitling the police to take the applicant in custody immediately. 10. It is also directed that the applicant shall abide by all the conditions enumerated under section 437(3) of the CrPC.