JUDGMENT

B.N. MAHAPATRA, J. : This petition has been filed under Section 439, Cr.P.C. in connection with C.T. Case No.64 of 2013 arising out of Gunupur P.S. Case No.72 of 2013 now pending in the file of learned Sessions Judge-cum-Special Judge, Rayagada.

2.The petitioner is alleged to have committed offence punishable under Section 20(b) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS’ Act’).

3.Prosecution story is that the petitioner was carrying 24.5 Kgs. of Ganja in a Motorcycle bearing Registration No. AP-30-E-1475. Relying on the seizure list, it was submitted that the Ganja in question had been seized from the possession of the petitioner in presence of the witnesses, namely; Sri Dibakar Barik and Sri Bhaskar Rout. The quantity of Ganja seized is 24.5 Kgs, which is greater than the commercial quantity, i.e., 20 Kgs. specified vide Notification No.1055 (E) Dated 19.10.2001 issued under Clauses (vii-a) and (xxiii-a) of Section 2 of the NDPS Act. Therefore, in view of Section 37 of the NDPS Act no bail may be granted to the petitioner.

4.Learned counsel for the petitioner submitted that the petitioner is no way connected with the materials seized. The Motorcycle from which the Ganja was seized did not belong to the petitioner. Since quantity of General seized is only 24.5 Kgs. mandate of Section 37 of the NDPS Act is not strictly applicable to petitioner’s case. Learned counsel for the petitioner placed reliance on the order dated 3.12.2013 passed by this Court in BLAPL No.8974 of 2013 in which the petitioner has been enlarged on bail where the quantity of Ganja involved is 2 quintals, 60 Kgs. and 400 grams. He further submitted that the petitioner is in custody for more than 6 months.

5.To consider the petitioner’s prayer for grant of bail, it is necessary to know what is contemplated in Section 20(b)(ii)(C) and Section 37 of the NDPS Act. Section 20(b)(ii)(C) reads as follows :-

“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)xxxx

xx

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

(i)xxxxxx

(ii)where such contravention relates to Sub-clause(b), —

(A)xxxxxx

(B)xxxxxx

(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 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.”

Undisputedly, the quantity of Ganja involved in the present case is 24.5 Kgs., which is commercial quantity. Once the quantity of Ganja involved is commercial quantity, the mandate of Section 37 of NDPS Act comes into operation which reads as follows :-

“37. Offences to be cognizable and non-bailable.– (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), —

(a)every offence punishable under this Act shall be cognizable;

(b)no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless–

(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii)where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on grantin