Kishan Kumar vs State of U.P.

Bala Krishna Narayana, J.—Heard Sri Daya Shankar Mishra, learned Counsel for the appellant and Sri Narendra Dev Rai, learned A.G.A.

The present criminal appeal has been filed against the Judgment and order dated 10.2.2010 passed by learned Additional Sessions Judge, Court No. 2, District Ghaziabad in Sessions Trial No. 63 of 2005 (State v. Kishan Kumar and Ors.) u/s 8/20 of N.D.P.S. Act, convicting and sentencing him to undergo rigorous imprisonment of 15 years and a fine of Rs. 1,50,000/- and in default in payment of fine to undergo further rigorous imprisonment of 3 years is seeking enlargement of bail during the pendency of the appeal referred by him against the judgment of conviction.

It is contended by learned Counsel for the appellant that 1 kg of Charas is alleged to have been recovered from the possession of the appellant which cannot be treated to be commercial quantity and thus the rigours of Section 37(1)(b) of the N.D.P.S. Act are not attracted to the present case.

In support of his contention, learned Counsel for the applicant has drawn attention of this Court to Section 2(vii)(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which defines commercial quantity as quantity greater than the quantity specified by the Central Government by the notification in the official gazette. Admittedly, in the official gazette, 1 kg. has been specified and, therefore, upto 1 kg, narcotic or psychotropic substances i.e., Charas in the present case, cannot be treated as commercial quantity.

He further contended that the applicant has no criminal history in his credit that he was on bail during the pendency of the trial and he has not misused the liberty of bail during trial.

Per contra learned A.G.A. opposed the bail prayer.

However, he had not dispute the fact that the quantity of Charas recovered from his possession is below the commercial quantity has defined u/s 2(vii)(a) of the N.D.P.S. Act and the fact that the appellant who was on bail during the pendency of the bail did not misuse the liberty of the bail.

Considering the facts and circumstances of the case, without expressing any opinion on merits of the case, let the appellant Pankaj Shukla, be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the Court concerned in Sessions Trial No. 63 of 2005 (State v. Kishan Kumar and Ors.) u/s 8/20 of N.D.P.S. Act, Police Station Kotwali District Ghaziabad. As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial Judge concerned to be kept on record of this Appeal.

Realization of fine to the extent of 75% shall remain stayed during the pendency of the present appeal and the remaining amount of 25% shall be deposited by the appellant within two months from today, before the Court below. In case, the amount of 25% is not deposited within the aforesaid period, then the bail order granting bail to the appellant shall automatically deemed cancelled.