IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ROHIT ARYA &

HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE CRIMINAL REVISION NO. 1933 OF 2021 BETWEEN:-

1. KALLA MALLAH 2. MUNNA MALLAH

3. MUNSI MALLAH SONS OF HARI SINGH MALLAH R/O VILAGE CHOKHPURA, TAHSIL SABALGARH, DISTRICT MORENA .....PETITIONERS (BY SHRI SANKALP SHARMA- ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH POLICE STATION SABALGARH, DISTRICT MORENA

2. UNION OF INDIA THORUGH MINISTRY OF HOME AFFAIRS, NORTH BLOCK CABINET SECRETARIAT, RAISINA HILLS, NEW DELHI, DELHI 110020.

...RESPONDENTS (SHRI RAJESH SHUKLA – DEPUTY ADVOCATE GENERAL FOR RESPONDENT NO.1 AND SHRI PRAVEEN NEWASKAR – DEPUTY SOLICITOR GENERAL FOR RESPONDENT NO.2/UNION OF INDIA.

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Reserved on : 03/11/2022 Date of order : 14/11/2022 ---------------------------------------------------------------------------

This petition coming on for hearing this day, JUSTICE ROHIT ARYA passed the following:

ORDER

Under the order dated 17/8/2022 of Hon'ble the Chief Justice, the instant reference has been placed before this Court by the Registry.

2. The following two questions have been framed in the reference order dated 26/10/2021 passed by the learned Single Bench of Hon'ble Shri Justice Sheel Nagu :-

(1) Can 7000 kgs of opium plants be treated to be less than commercial and small quantity to fall u/S. 18(c) NDPS Act r/w Note-3 of Notification dated 19.10.2021, for availing benefit of default bail u/S.167 Cr.P.C. despite bar u/S.36-A(4) NDPS Act?

(2) Whether the Coordinate Bench in the case of Raja Bhaiya Singh Vs.State of M.P. (Criminal Revision No. 1813/2020, decided on 8.1.2021) has laid down the correct law or not?

3. Before adverting to factual matrix and contentions advanced by the learned counsel for the parties, it is expedient to reiterate relevant provisions of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the “NDPS Act”).

“2. Definitions – In this Act, unless the context otherwise requires -

(xv) “opium” means—

(a) the coagulated juice of the opium poppy;

and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent. of morphine;”

(xvii) “opium poppy” means—

(a) the plant of the species Papaver somniferum L; and (b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act;

(xviii) “poppy straw” means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom;

(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;

18. Punishment for contravention in relation to opium poppy and opium.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,—

(a) where the contravention 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) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, an