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2023 DIGILAW 1443 (AP)

M. Nagaraju v. State of Andhra Pradesh

2023-11-08

T.MALLIKARJUNA RAO

body2023
JUDGMENT 1. This Criminal Petition, under Ss. 437 and 439 of Cr.P.C., has been filed by the petitioner/accused, seeking regular bail, in Crime No.272 of 2023 of Kuppam Urban Police Station, Chittoor District. 2. A case has been registered against the petitioner for the offences punishable under Sec. 8(b) read with 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act"). 3. Case of the prosecution, in brief, is that, on 7/7/2023 at about 11.00 A.M. at Thangedikuppam Village, Kuppam Mandal, the accused, who was cultivating Cannabis plants in Survey No.115/8A3, was arrested under a cover of mahajarnama and 70 plants were destroyed by burning them. Then, the Investigation Officer seized 3 cannabis plants and sent the same for chemical examination after duly sealed and labeled. The said cannabis plants were weighing about 50 Kgs and thereafter the accused was sent for judicial custody. 4. Learned counsel for the petitioner submits that as per the Prosecution"s case, the cannabis plants were seized and 70 plaints were destroyed and it is not the case that material was found with flowering or fruiting tops along with seeds and the weighment of the plants is 50 kgs and as such, it cannot be treated as non-commercial quantity. 5. On the contrary, learned Assistant Public Prosecutor opposed the petition on the ground that the investigation is not completed. 6. Heard. Perused the record. 7. The expression "ganja" as defined in Sec. 2 (iii)(b) of the NDPS Act, does not include seeds and leaves when not accompanied by the tops. Sec. 2(iii)(b) defines 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. 8. The definition itself shows that when the leaves and twigs are accompanying the flowering or fruiting tops, the same are called "Ganja" and the leaves and twigs are not required to be separated therefrom. 9. As already noted, it is the prosecution"s case that from the fields of accused, three cannabis plants were seized and the remaining 70 plants were destroyed. Nowhere in the seizurenama, it has mentioned that the material found was with flowering or fruiting tops. In the definition, the legislature has specifically excluded seeds and leaves and specifically mentioned that cannabis means fruiting or flowering tops. 10. Nowhere in the seizurenama, it has mentioned that the material found was with flowering or fruiting tops. In the definition, the legislature has specifically excluded seeds and leaves and specifically mentioned that cannabis means fruiting or flowering tops. 10. According to the prosecution"s case, weight of 70 ganja plants is about 50 kgs. It is not the weight of the plants which is to be taken into consideration. It is not the case that the said plants contain flowering and fruiting tops. 11. Learned counsel for the petitioner contends that the crime is registered against the accused was under Sec. 8(b) r/w. 20(a)(i) of the NDPS Act. He further submits that if the accusations made against the accused in the Remand Report are taken to be true, Sec. 8(b) of the NDPS Act may be applicable to the accused. At this stage, it is pertinent to refer Sec. 8(b) and (c) of the NDPS Act, which reads as under: "(b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export interState, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf." 12. Learned counsel for the petitioner relied on Sec. 20 of the NDPS Act, which provides punishment for contravention in relation to Cannabis plants and Cannabis, which reads as under: 20. Learned counsel for the petitioner relied on Sec. 20 of the NDPS Act, which provides punishment for contravention in relation to Cannabis plants and Cannabis, which reads as under: 20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,- (a) cultivates any cannabis plant; (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,- 1 [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to 2 [one year], or with fine which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.] 13. Learned counsel for the Petitioner relied on Sec. 36A of NDPS Act. For better appreciation, it is extracted hereunder: 36A- Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; xxxxxxxx (4) In respect of persons accused of an offence punishable under Sec. 19 or Sec. 24 or Sec. 27A or for offences involving commercial quantity the references in sub-sec. (2) of Sec. 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days": 14. Learned counsel for the petitioner submits that, at best, if the prosecution is able to establish its case, the accused may be liable for punishment which may extend to ten years, at this stage, it is pertinent to refer Sec. 167(2) of Cr.P.C., which reads as under: "(2) The Magistrate to whom an accused person is forwarded under this Sec. may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- Sec. shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." 15. After considering the material on record, this Court finds that Sec. 36A of NDPS Act cannot be made applicable, as the record does not disclose the seizure of commercial quantity of ganja. The weight of the plants cannot be taken into consideration in light of the foregoing discussion. After considering the material on record, this Court finds that Sec. 36A of NDPS Act cannot be made applicable, as the record does not disclose the seizure of commercial quantity of ganja. The weight of the plants cannot be taken into consideration in light of the foregoing discussion. By referring to Sec. 167(2) Cr.P.C., learned counsel for the petitioner contends that the petitioner is entitled to bail under Sec. 167(2) of Cr.P.C., as he has been in judicial custody since more than 90 days and he has been in actual judicial remand for 120 days. Considering the above referred provisions, this Court finds force in the submission of the petitioner"s counsel in this regard. 16. After careful reading of the above provisions referred supra, and in view of the facts and circumstances of the case, this Court is inclined to grant bail to the petitioner/accused, on the following conditions: (i) The petitioner/accused shall be released on bail on executing a personal bond for Rs.25,000.00 (Rupees Twenty Five Thousand only) with two sureties each for the like sum to the satisfaction of the Additional Judicial Magistrate of First Class, Kuppam. (ii) On release, the petitioner shall appear before the Station House Officer concerned once in a fortnight in between 10.00 AM and 5.00 PM for a period of three (3) months or till filing of charge sheet, whichever is earlier. (iii) The petitioner shall not directly or indirectly contact or threaten the witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper evidence and shall co-operate with the investigation. (iv) It is made clear that the petitioner shall scrupulously comply with the above conditions and breach of any of the above conditions will be viewed seriously and prosecution is at liberty to move an application for cancellation of the bail. 17. Accordingly, the Criminal Petition is allowed.