Chandan Sharma vs State of Chhattisgarh

Hon''ble Mr. Prashant Kumar Mishra, J.—This order shall govern the disposal of M.Cr.C. Nos. 3562/2011. 3560/201 land 3684/2011. M.Cr.C. No. 3560/2011 relates to Crime No. 488/2011. registered in Police Station. Pulgaon. District Durg for offence punishable under Sections 21 and 27 of the Narcotic Drugs and Psychotropic Substances Act. 1985. In this case, the applicant was found to be in possession of 40 packets of brown sugar weighing 15.650 mili gram. i.e., less than 1 gram.

M.Cr.C. No. 3562/2011 relates to Crime No. 484/2011 registered in Police Station, Mohan Nagar, District Durg for offence punishable under Sections 21 and 27 of the Narcotic Drugs and Psychotropic Substances Act. 1985. In this case, the applicant was found to be in possession of 1.750 mili gram of brown sugar which is less than 5 grams which is notified as small quantity.

M.Cr.C. No. 3684/2011 relates to Crime No. 768/2011, registered in Police Station, Durg, District Durg for offence punishable under Sections 21 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act''). In this case, the applicant was found to be in possession of 16 packets of brown sugar weighing 0.004 grams which is less than 5 grams notified as small quantity.

Learned Counsel appearing on behalf of the respective applicants would argue that maximum sentence for being found In possession of psychotropic substance up to small quantity is 6 months and they are in jail since last about 3 months or more, therefore, they deserves to be released on bail. It is submitted by them that the offence is triable by the Judicial Magistrate 1st Class. They have relied on judgment of the Allahabad High Court in the matter of Abdul Aziz Vs. State of U.P., 2002 (1) EFR 598, in support of the said contention.

On the other hand, learned Counsel for the State opposed the bail applications.

I have heard learned Counsel for the parties.

Admittedly, in all the three cases, the accused persons have been found to be in possession of psychotropic substance, brown sugar, weighing less than 5 grams. Such offence is punishable u/s 21 of the Act and the maximum sentence is imprisonment up to 6 months. Section 26 (b) (ii) of the Cr.PC, deals with the provision as to "Courts by which offences are triable", it has been been provided therein that any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by the High Court, or any other Court by which such offence is shown in the First Schedule to be triable. Section 36A of the Act makes a provision regarding trial of offences under the Act by Special Court. However. clause (a) of sub-section (1) thereof provides that ''all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government". On reading of this provision, it appears that the Special Court shall be constituted u/s 36 of the Act only for trial of offences carrying imprisonment for a term of more than three years. For rest of the offences which are punishable with imprisonment up to three years, no Court has been specified for holding trial. There are offences under the Act like Sections 20 (b) (ii) (A), 21 (a), 22 (a), 23 (a), 26, 27(a), (b) which provide for punishment with imprisonment up to three years or less and these offences cannot be tried by the Special Courts by virtue of the specific provision contained u/s 36A of the Act.

In the above circumstances, the issue for consideration is whether such offences under the Act carrying punishment up to three years would still he cognizable by the Special Court or by any other Court. Section 36A (1) starts with a non obstante clause meaning thereby that for the provision made under clause (a) to clause (d) of sub-section (1) shall be operative even if a contrary provision is made in the Cr.PC. However, when no provision is made for trial of offences carrying punishment of less than three years, a resort has to be taken to the provision contained in Section 26 (b) (ii) of the Cr.PC read with First Schedule of the Cr.PC. As earlier discussed, Section 26 (b) (ii) of the Cr.PC deals with cases where any other law does not mention the Court, in which the trial under the said law is to be conducted. In the second part of the First Schedule of the Cr.PC, classification of offences against other laws has been made, which is in 3 parts. In the first part, when the offence under the other laws is punishable with death, imprisonment for life or imprisonment for more than 7 years and it is cognizable as well as non-bailable, it shall be tried by the Court of Sessions. In the second part, if the offence is punishable with imprisonment for 3 years and upwards but not more than 7 years and is cognizable and non-bailable, it shall be tried by the Magistrate First Class and under the third part, if the offence is punishable with imprisonment for less than 3 years or with fine and is non-cognizable and bailable, it shall be tried by any Magistrate.

Since offence under the NDPS Act is cognizable and non-bailable u/s 37 of the Act, third part of classification dealing with offence under the other laws carrying punishment with imprisonment for less than 3 years and where offence is non-cognizable and bailable, is not attracted. Likewise, first part deals with the offences punishable with death, life imprisonment or imprisonment for more than 7 years is also not attracted. Now, therefore, only second part of the classification remains wherein a provision has been made for offences under other laws punishable with imprisonment for 3 years and upwards but not more than 7 years and is also cognizable and non-bailable and such offences are to be tried by the Magistrate first Class. Though offence u/s 21 of the Act with which this Court is dealing at present carries punishment up to 6 months but would not be covered under the third part. Therefore, only second part remains to be applied because no provision is made under the NDPS Act specifying the Court in which such offences shall be tried.

In Reference u/s 395 (2) of the Cr.PC made by the Special Judge (NDPS), Mandla, reported in 2007(1) M.P.H.T. 477, it has been held in Paragraphs 18 and 19 thus :--

The Special Judge has referred five cases in which the charge u/s 8 read with Section 20 (b) (ii) (A) of the Act has been framed against the accused of respective cases. This offence is punishable 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. Considering the term of imprisonment provided under this Section, certainly the Court of Magistrate First Class is competent to lake cognizance and to try these cases as provided u/s 26 (b) of the Code and as shown in the First Schedule.

In view of the provisions contained in Section 26 (b) and First Schedule of the Code, it is apparent that the cognizance has been taken erroneously by the Special Judge in all the five cases referred in the reference. The Court of Magistrate First Class is competent to try these cases and not the Special Court constituted u/s 36 of the Act. Apart from that, there are no justifiable circumstances in all these five cases to come to this conclusion that it was desirable for the Special Judge to take cognizance in these cases. The distribution memos issued for the years 2004 and 2005 do not come under justifiable circumstances because these were not prepared in accordance with the law as far as the jurisdiction of Special Judge is concerned. Since, all the five cases are still pending, therefore, it would be proper for this Court to correct the error rather than allow it to remain as it is."

In view of the above, the offence u/s 21 of the Act alleged against the applicants for being found in possession of small quantity of psychotropic substance, brown sugar, is triable by the Judicial Magistrate First Class.

The applicants are in jail since last 3 months or more and the maximum sentence provided u/s 21 of the Act is 6 months, therefore, considering the totality of the circumstances, this Court is inclined to release the applicants on hail. In the result, the applications are allowed and the applicants are directed to be released on bail on each of them executing a personal bond for a sum of Rs. 25.000/- with one surety for the like amount to the satisfaction of the Trial Court. They are directed to appear before the Trial Court on each and every date given by the said Court.