Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 884 - HC - Indian LawsRecovery of contraband - Smuggling - 600 grams of Ganja - commercial quantity or not - whether any offence under Section 20(b)(ii)(C) of the NDPS Act relating to illegal possession or transportation of commercial quantity of Ganja for which the F.I.R. was registered is made out or not? - HELD THAT:- The facts of the case clearly show that the total quantity of Ganja involved in this case is only 600 grams. Learned Additional Public Prosecutor also did not dispute the said fact. He fairly concedes that the total quantity of Ganja involved in this case is only 600 grams. Therefore, the facts of the case attract only an offence punishable under Section 20(b)(ii)(A) of the NDPS Act, as the said total quantity of Ganja is only a small quantity. Notification specifying small quantity and commercial quantity was issued by the Central Government in exercise of the powers conferred on it by clause (viia) and (xxiiia) of Section 2 of the NDPS Act. The said notification contains a table specifying the small quantity of Ganja and commercial quantity of Ganja. The quantity of Ganja shown in Column No.5 of the said table is specified as small quantity. Serial No.55 in the said table relates to Ganja. At Column No.5 of it, it is shown that 1000 grams of Ganja is a small quantity and in Column No.6 it is shown that 20 K.Gs. of Ganja is a commercial quantity. It is now evident from the aforesaid notification that Ganja upto 1000 grams is considered to be a small quantity. Only Ganja of 20 Kgs. and above is considered to be a commercial quantity. When small quantity of Ganja is involved in commission of the offence, the imprisonment prescribed is for a term which may extend to one year or with fine, which may extend to ten thousand rupees, or with both. In the instant case, the Ganja involved in commission of the offence is only 600 grams, which is below the 1000 grams. Therefore, as per the aforesaid notification, it is to be held that the Ganja involved in this case is only a small quantity and an offence under Section 20(b)(ii)(A) of the NDPS Act is only made out. So, the very registration of F.I.R. for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act, which is relating to commercial quantity, is obviously erroneous - when it is found from the facts of the case that only an offence under Section 20(b)(ii)(A) of the NDPS Act is made out and as the said offence is punishable with less than seven years period of imprisonment, the case is clearly amenable to Section 41A Cr.P.C. Whether the procedure contemplated under Section 41-A of Cr.P.C. is applicable to the offences punishable under special enactment i.e. NDPS Act or not? - HELD THAT:- The Apex Court in the case of STATE OF PUNJAB VERSUS BALBIR SINGH [1994 (3) TMI 173 - SUPREME COURT] held that search, seizure or arrest carried out by them in an offence under the NDPS Act were obviously under the provisions of Cr.P.C. So, the provisions of arrest, warrant, search and seizure incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165 Cr.P.C are applicable to the said arrest, search and seizure, warrant etc., made under the NDPS Act. The aforesaid group of provisions includes Section 41-A of Cr.P.C. - the Apex Court also held that the provisions of Section 165 Cr.P.C, which are not inconsistent with provisions of NDPS Act, are applicable for effecting search, seizure, arrest under the NDPS Act. Further, it is significant to note that the Apex Court held that Section 4(2) Cr.P.C provides that all the offences under any other laws shall be investigated and inquired as mentioned therein. The application of provisions of Cr.P.C insofar as they are not inconsistent with provisions of the NDPS Act are not expressly or impliedly excluded to the offence under the NDPS Act. Therefore, there is absolutely no legal bar to apply the procedure contemplated under Section 41A Cr.P.C. to the offences under the NDPS Act. So, there is no substance in the contention of the learned Additional Public Prosecutor that the benefit of the procedure contemplated under Section 41A Cr.P.C cannot be extended to the offences under the NDPS Act, which are punishable with less than seven years period of imprisonment. Petition closed.
|