Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 2028

IN THE HIGH COURT OF BOMBAY
M.S. Karnik, J.
Vikas Babbarsingh Itkan - Appellant
Versus
State of Maharashtra - Respondent
Bail Application No. 125 of 2023
Decided On : 16-10-2023

Advocates appeared:
Pranav Pokale, Advocate, Tanmay Karwa, Advocate, Aditya Bagal, Advocate, Veera Shinde, Advocate, Laxman Baliram Dhengle, Advocate

IMPORTANT POINT
The definition of 'commercial quantity' under the NDPS Act must be strictly interpreted according to the quantities specified by the Central Government, and possession of a quantity less than this threshold does not invoke the stringent bail conditions of Section 37.

Headnote:
BAIL - Narcotic Drugs and Psychotropic Substances Act - Sections 8(c), 20(b)(ii), 29, 37 - The court analyzed the definitions of 'commercial quantity' and 'small quantity' under the NDPS Act, concluding that 1000 gms of 'charas' is an intermediate quantity, not a commercial quantity. The court emphasized that the interpretation of the NDPS Act must align with the definitions provided in the Act and the notifications issued by the Central Government. This interpretation influenced the decision to grant bail, as the stringent conditions of Section 37 did not apply.
Fact of the Case:
The applicant, accused No.1, was arrested for possessing 1000 gms of 'charas' on 17/08/2021. The applicant argued that this quantity was less than the commercial quantity defined under the NDPS Act, thus the stringent conditions for bail under Section 37 should not apply. The applicant had been in custody for over 2 years without trial.
Finding of the Court:
The court found that the quantity of 1000 gms of 'charas' was indeed less than the commercial quantity as defined by the NDPS Act and the relevant notification. The court agreed with previous judgments that established the threshold for commercial quantity and determined that the applicant was eligible for bail under the circumstances.
Issues: Whether the quantity of 1000 gms of 'charas' qualifies as a commercial quantity under the NDPS Act, and whether the applicant is entitled to bail given the circumstances of the case.
Ratio Decidendi: The court held that for a quantity to be classified as commercial under the NDPS Act, it must exceed the quantity specified by the Central Government. Since 1000 gms is not greater than the specified threshold of 1 Kg, it is classified as an intermediate quantity, thus the stringent conditions of Section 37 do not apply.
Final Decision: The application for bail was allowed, with the applicant required to fulfill certain conditions to ensure compliance with the trial process.

JUDGMENT/ORDER

1. This is an application for bail in respect of the offence punishable under Ss. 8(c), 20(b)(ii) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereafter 'NDPS Act' for short) registered on 17/08/2021 vide C.R. No.249 of 2021 with Khadaki Police Station, Pune.

2. The applicant is accused No.1. There are in all 3 accused. The applicant was arrested on 17/08/2021. The applicant was noticed by the patrolling party carrying a sack. His movements were found to be suspicious. After necessary procedural formalities, the sack of the applicant was searched. The applicant was found in possession of the contraband 'charas' weighing about 1000 gms. Learned counsel for the applicant submitted that the applicant was in possession of contraband which quantity was less than the commercial quantity prescribed by the notification under the NDPS Act. According to him, therefore, the rigours of Sec. 37 of the NDPS Act for satisfying the twin conditions will not arise in the present case. It is further submitted that the applicant is in custody for more than 2 years and 2 months without any possibility of trial concluding any time soon. According to the learned counsel for the applicant, there are no prior offences under the NDPS Act registered against him. Learned counsel for the applicant relied upon the decision dtd. 13/06/2003 of the High Court of Himachal Pradesh in Ratto Vs. The State of Himachal Pradesh, Cr.M.P. (M) No. 1101 of 2002. and the decision dtd. 01/09/2015 in Vakil Vs. State of Haryana, 2015(3) PLJ (Criminal) 677. of Punjab and Haryana High Court in support of his submissions.

3. On the other hand, learned APP vehemently opposed the application. It is submitted that the quantity found in possession of the applicant i.e. 1000 gms of contraband charas will have to be regarded as commercial quantity in view of sub-clause (viia) of Sec. 2 of the NDPS Act read with the notification S.O. 1055(E) dtd. 19/10/2001, issued by the Central Government. Learned APP further submits that the procedure of search and seizure is fully followed. Learned APP submitted that if clause (viia) of Sec. 2 and the provisions of the notification are properly construed, then it follows that 1 Kg and above of the contraband 'charas' has to be regarded as commercial quantity.

4. Heard learned counsel.

5. I will have to first examine whether the quantity of 1000 gms of contraband 'charas' qualifies as a commercial quantity or whether it will have to be regarded as an intermediate quantity. While dealing with this contention, it would be material to refer to the definition of 'commercial quantity' in sub-clause (viia) of Sec. 2 and 'small quantity' in sub-clause (xxiiia) of Sec. 2 of the NDPS Act:-

<WXY>"(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;"

"(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;"</WXY>

6. So far as the notification dtd. 19/10/2001 relied upon by learned APP is concerned, the relevant portion in the context of the present controversy reads thus:

<WXY>"In exercise of the powers conferred by clauses (viia) and (xxiiia) of Sec. 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supersession of Ministry of Finance, Department of Revenue Notification S.O. 527(E) dtd. 16/7/1996, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies the quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said Table, as the small quantity and commercial quantity respectively for the purposes of the said