The offense under Section 20(b)(ii)(A) of the NDPS Act is bailable as per the provisions of the Code of Criminal Procedure, which governs the classification of offenses.

ORDER

Is the offence punishable under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act a bailable or a non- bailable one ? This is the bone of contention in this application for bail.

2. The facts are simple. The first accused was allegedly involved in cultivation of ganja punishable under Section 20(1) of the Act. He was apprehended. His statement was recorded. It was revealed that some time earlier, the first accused had sold to the petitioner and the petitioner had purchased 500 grams of dried ganja. The petitioner was also proceeded against. He was arrested on 11.1.2008. He continues in custody from that date.

3. The learned counsel for the petitioner submits that the offence under Section 20(b)(ii)(A) is bailable and the detention of the petitioner, who is willing to offer bail, is unjustified.

4. The learned Prosecutor, on the contrary, contends that Section 37 of the N.D.P.S. Act declares all offences under the N.D.P.S. Act to be non-bailable and therefore notwithstanding the fact that Section 37(1)(b) is not applicable, the offence continues to be a non-bailable offence and the Prosecutor is justified in opposing the application. The learned Prosecutor submits that the declaration that the offence under Section 20(b)(ii)(A) is bailable would invite pernicious consequences substantially reducing the seriousness of the offence alleged. That would in turn lead to police releasing the accused on bail when they are found in possession of small quantities of ganja. This is not justified, it is contended.

5. A look at the law first. Section 20(b)(ii)(A) 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) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable, -

(i) where such contravention relates to clause (a) with rigorous 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 relates 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;

(emphasis supplied)

6. It is very evident from a reading of the said section that the offence is punishable with imprisonment for a term which may extend to six months or fine or both. If there is no special declaration to make the offence non-bailable, one has got to go to the schedule to the Cr.P.C. to ascertain whether the offence is bailable or non-bailable. This conclusion follows easily from section 2(a), which defines a “bailable offence” as also Sections 4 and 5 of the Cr.P.C. which stipulate that any offence under a special law must be investigated, enquired into, tried or otherwise dealt with in accordance with the Cr.P.C. if the special law does not make any special provision. There can also be no doubt that under the schedule to the Cr.P.C. (the last entry in Part II) that any offence punishable with imprisonment for less than three years or with fine only shall be non cognizabale and bailable.

7. There can hence be no doubt that in the absence of a special provision in Narcotic Drugs and Psychotropic Substances Act, the offence under Section 20(b)(ii)(A) must be held to be a bailable one.

8. The contention is that there is adequate provision in Section 37 of the Narcotic Drugs and Psychotropic Substances Act. It declares all offences under the Narcotic Drugs and Psychotropic Substances Act to be non bailable, contends the learned Public Prosecutor. I shall first look at Section 37. It reads as follows:

“37. Offences to be cognizable and non-

bailable--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 o