Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Ori) 675

IN THE HIGH COURT OF ORISSA
S.K. Sahoo, J.
ANIL KUMAR DASH - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
BLAPL No. 1947 of 2015
Decided On : 22-09-2015

Advocates Appeared:
Arun Kumar Das, for the Appellant; Sangram Keshari Nayak, Addl. Govt. Advocate and Jyoti Prakash Patra, Addl. SC, Advocates for the Respondent

The central legal point established is the interpretation of 'commercial quantity' and 'small quantity' under the NDPS Act, and its impact on the eligibility for bail under section 20 of the Act.

Headnote:
NDPS Act - Bail Application - Section 2(viia), Section 20, Section 37
Fact of the Case:

The petitioner was charged under section 20(b)(ii)(C) of NDPS Act for transporting 20 kg. of ganja. The lower court denied bail citing the quantity of ganja as commercial, invoking section 37 of the NDPS Act.
Finding of the Court:

The court found that the quantity of ganja seized was lesser than 'commercial quantity' but greater than 'small quantity', making the petitioner eligible for bail under section 20(b)(ii)(B) of NDPS Act.
Issues: The main issue was whether the quantity of ganja seized falls within the definition of 'commercial quantity' under the NDPS Act, impacting the eligibility for bail.
Ratio Decidendi: The court interpreted the definitions of 'commercial quantity' and 'small quantity' under the NDPS Act and concluded that the petitioner's offense fell under section 20(b)(ii)(B) rather than section 20(b)(ii)(C), making him eligible for bail.
Final Decision: The court allowed the bail application and directed the petitioner to be released on bail with specific terms and conditions.

Judgement Key Points

Key Points: - 20 kg. of ganja does not constitute "commercial quantity" as it is not greater than the quantity specified in the Central Government notification (!) . - Quantity lesser than commercial quantity but greater than small quantity attracts punishment under Section 20(b)(ii)(B), not Section 20(b)(ii)(C) (!) . - Bail is not barred under Section 37 for quantities lower than commercial quantity (!) . - The court interpreted definitions of "commercial quantity" and "small quantity" to decide the applicable bail provisions (!) . - The petitioner was charged under Section 20(b)(ii)(C) but the actual offence fell under Section 20(b)(ii)(B) based on quantity (!) . - Bail was granted with specific conditions including bond amount and weekly police station attendance (!) .

How to determine whether a quantity of ganja falls under "commercial quantity" or "small quantity" under the NDPS Act?

What is the punishment prescribed for possessing quantity lesser than commercial quantity but greater than small quantity under Section 20 of the NDPS Act?

What are the bail eligibility criteria under Section 37 of the NDPS Act for offences involving different quantities of narcotics?

ORDER

S.K. Sahoo, J - The question that crops up for consideration in this bail application under section 439 Cr.P.C. is whether 20 kg. of ganja comes within "commercial quantity" as prescribed under section 2(viia) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter for short 'NDPS Act')?

2. In the present case, the petitioner Anil Kumar Dash who is an accused in Naktiduel P.S. Case No. 15 of 2012 corresponding to T.R. Case No. 25 of 2012 pending in the Court of learned Sessions Judge -cum- Judge (Special Court), Sambalpur has been chargesheeted under section 20(b)(ii)(C) of NDPS Act for transporting 20 kg. of ganja on 29.03.2012 at about 4 a.m. in his motorcycle bearing Regd. No. OR 19E 1589 near Ambajhari temple under Naktideul police station in the district of Sambalpur.

3. The petitioner is in custody since 14.02.2015 and his prayer for bail has been turned down by the learned Sessions Judge -cum- Judge (Special Court), Sambalpur vide order dated 25.02.2015 on the ground that the recovered and seized ganja being 20 kg. comes within the purview of commercial quantity and therefore section 37 of the NDPS Act is a legal impediment for grant of bail.

4. Heard Mr. Arun Kumar Das, learned counsel appearing for petitioner Anil Kumar Dash and Mr. Sangram Keshari Nayak, learned Additional Government Advocate.

It is the contention of Mr. Das that the quantity of ganja seized does not come within "commercial quantity" and as such the bar under section 37 of the NDPS Act for grant of bail is not applicable. On the other hand Mr. Nayak contended that the notification published by the Central Government vide S.O. 1055 (E), dated 19.10.2001 specifies in column No. 6 that 20 kg. of ganja is commercial quantity and therefore the limitations specified in sub-clause (b) of sub-section (1) of section 37 of the NDPS Act on granting of bail applies to the case.

5. Section 20 of the N.D.P.S. Act prescribes punishment for contravention in relation to cannabis plant and cannabis. The relevant provision of section 20 is quoted herein below:--

"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:--

x x x x x

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

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

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to 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 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."

In view of the definition under sub-clause (b) of clause (iii) section 2 of NDPS Act, "cannabis (hemp)" means 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.

"Commercial quantity" has been defined in clause (viia) of section 2 of the NDPS Act which reads as follows:--

"2.(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;"

Similarly "small quantity" has been defined under clause (xxiiia) section 2 of N.D.P.S. Act which reads as follows:--

"2.

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