Non-compliance of Sections 42 and 50 of the NDPS Act would lead to vitiation of trial under certain circumstances. An illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused.

JUDGMENT

S.K. Panigrahi, J. - The petitioner has filed the instant application under Section 439 of CrPC seeking bail in connection with P.R. No.129/2018-19 dated 27.01.2019 corresponding to 2 (a) CC No.04 of 2019(N) pending before the Court of the learned Sessions Judgecum-Special Judge, Ganjam, Berhampur. The petitioner herein is the accused in connection with alleged commission of offences punishable under Section 20 (b) (ii) (C) of the N.D.P.S. Act.

2. The case of the prosecution is that Ganja weighing 94 kgs kept in four jerry bastas were recovered and seized from the possession of the present petitioners (Narayan Jena and Sanjeet Jena) while they along with two others were transporting the same AFR in one sleek silver coloured Hyundai Xcent VTVT car bearing registration No.OD-02AX-0206. The petitioners are in jail custody since 27.01.2019 (i.e., the date of their arrest).

3. Heard Mr. Akshaya Kumar Nayak, learned Counsel for the petitioners and Mr. Karunakar Nayak, learned Additional Standing Counsel for the State-opposite party and perused the case records.

4. Learned counsel for the petitioners Mr. Akshaya Kumar Nayak has contended that the court below has not properly examined the question of exclusive conscious possession, transportation, search, recovery, test, measure, seizure, drawing samples and production of sample before the chemical examiner without following due procedure and hence the order is dubious. He has further contended that the case of prosecution regarding the test and measurement of the seized 'ganja' is completely doubtful as no proper procedure was followed as the Inspector of Excise seems to have identified the substance by smelling and without any weighing machine. Moreover, no local witnesses were present during the search and seizure. It has further been submitted that the failure of the Inspector to produce the accused persons before the Gazetted Officer or any Magistrate during the seizure of the alleged 'Ganja' is a violation of Section 50 of the NDPS Act which is a mandatory provision of the said Act. Hence, the petitioners may be granted bail.

5. Learned counsel for the State submitted that the contraband articles were seized by the raiding officer. It was not possible to arrange the presence of a Magistrate at that point in time. On search of dickey of the Car, the raiding officer recovered four white coloured jari basta containing 'ganja' weighing about 94 Kgs. Seizure lists have been prepared in the presence of the witnesses and the seized vehicle was also kept in the office of the EDC (SD), Berhampur.

6. It is a settled position of law that Section 37(1) and 37(2) of the NDPS Act shall be applicable in regard to a bail application only when the seized contraband (Narcotic Drug or Psychotropic Substance) is of commercial quantity. Several High Courts have iterated the same in cases of Rajvir Singh @ Raju vs State of Punjab, CRM-M-35080 of 2018 and Ranjeet Singh vs State, CRL.A. No. 89/2011 The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 introduced the concept of "small quantity" and "commercial quantity" for the purpose of imposing punishment. The punishment is graded as per the quantity involved "small quantity", "commercial quantity" or an intermediate quantity.

7. The Central Government in the Ministry of Finance (Department of Revenue) by way of a Notification-S.O. 1055 (E) dated 19.10.2001 issued in exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, has specified what would constitute "commercial quantity" and "small quantity" respectively, for different substances. The quantity mentioned in columns 5 and 6 of the table, in relation to the Narcotic Drug or Psychotropic Substance mentioned in the corresponding entry in the columns 2 to 4 of the said table are the "small quantity" and "commercial quantity" respectively for the purposes of the said clauses of that Section. Serial No.55 relates to 'Ganja'. In respect of 'Ganja'