IMPORTANT POINT
Under the amended provisions of NDPS Act where contraband found with which accused is alleged to have committed offence is less than commercial quantity then rigor of Section 37(1)(b) is not attracted and bail application is to be dealt with under Section 439 Cr.P.C.

JUDGMENT

Kuldip Chand Sood. J.- This order will dispose of these two petitions titled as Manoj Kumar v. State of H.P. (CLM.P.M. No. 146 of 2002) and Shashi Kumar v. State of H.P. (Cr.MP (M) No. 147 of 2002) for the grant of bail. Both the petitions raise common question of law and facts.

2. It appears a case for offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ("Drugs Act" for short) read with Section 34 of the Indian Penal Code was registered with Police Station. – Parwanoo, District Solan. an 4-5-2001 in terms of FIR No. 58 of 2001.

Prosecution case appears to be that on 4-5-2001 Bus No. PB-llN-3818 of Punjab Roadways Corporation was intercepted by ASI Jagdish Kumar at 11.30 a.m. in Sector VI at Parwanoo. The bus was bound to Bhatinda from Shimla. The bus was checked. There were 10-12 passengers. Accused Manoj Kumar-was sitting on seat No. 19. He had a pull over on his lap. When the said pull over was checked it was found that there was some bag in the arm of the pull over. The bag, wrapped in polythene, was searched, Charas in the shape of sticks was recovered from the bag. The Charas was weighed and found to be 850 grams. Samples were separately drawn and other formalities completed. The conductor of the bus informed the Investigating Officer that ticket for Manoj Kumar was purchased by other accused Shashi, Kumar and accordingly Shashi Kumar was roped in by resorting to Section 34 of the Indian Penal Code.

3. Case of the petitioners was that they were innocent. No Charas was recovered from Manoj Kumar. Accused Shashi had nothing to do with the Charas recovered. Bail is sought mainly on the ground that quantity of Charas recovered was less than 1000 grams and, therefore, in view of the amended provision of the Drugs Act, petitioners are entitled to bail.

4. The amendment of the Drugs Act by amended Act No.9 of 2001, amongst others, sought to rationalise the sentence structure to ensure that while drug P traffickers who traffic in large quantity of drugs are punished deterrent sentences the addicts and those who commit serious offences are sentenced to lesser punishments.

5. Section 20 of the Act provides for punishment for contravention in relation to cultivate production manufactures possession etc. of the cannabis plant and cannabis (Charas) respectively, records.

Section 20 reads:

"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 there-under:

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports interstate, exports inter-State or uses cannabis, shall be punishable,-

(i) where such contravention elates to clause (a) with igorous 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 elates to sub-clause (b),-

(A) and involves small quantity with Rigorous Imprisonment for a term which may extend to six months. 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 igorous Imprisonment for a term which shall not bi 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 and 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." (Emphasis supplied)

6. A perusal of clause (B) of Section 20 of the Act shows that a person who is in possession of quantity less than the commercial quantity but greater than small quantity, is liable to b