Mohanbhai Bhavanbhai Bhadaliya vs State Of Gujarat

Gita Gopi, J

This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being C.R. No.11211059220040 of 2022 registered with Nani Moldi Police Station, Surendranagar for offences punishable under sections 8(B) and 18(c) of the Narcotic Drugs and Psychotropic Substances Act.

Mr. Pravin Gondaliya, learned advocate for the applicant submits that, the applicant has been chargesheeted under section 18(c) and the value of cultivation of the opium poppy is assessed as Rs.30,000/-. Mr. Gondaliya submits that punishment may extend to 10 years or with fine which may extend to Rs.1,00,000/-. Referring to section 18 of the NDPS Act, Mr. Gondaliya submits that the said section specifies the punishment for contravention, which involves small quantity and commercial quantity; while the present case has referred under section 18(c) without any specific clarification with regard to the quantity involved. Hence, Mr. Gondaliya submits that during the trial, the discretion will lie with Judge concerned to decide about the punishment which may run upto 10 years. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.

Countering the said argument, Mr. Pranav Trivedi, learned APP submitted that, so far opium poppy is concerned, small quantity and commercial quantity is not defined in the notification issued, still however, the consideration may fall under section 18(c) of the Act, so the punishment may be not less than 10 years and fine shall not be less than Rs.1,00,000/- which may extend to Rs.2,00,000, 2. Thus, Mr. Pranav Trivedi, learned APP submitted that, section 18(c) is required to be interpreted in connection with section 18(a) and 18(b) of the NDPS Act.

Heard learned advocates on both the sides and perused the material on record. Note (3) of the Notification reads thus:

“3. “Small Quantity” and “Commercial Quantity” with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.”

As per the prosecution case, accused had illegally cultivated opium plant, where the value is worth Rs.30,000/-. According to the Note (3) of the Notification, small quantity and commercial quantity with respect to the Notification of opium poppy is not specified separately; however, the table for the Notification specifying the small quantity and commercial quantity, and commercial quantity lays down in serial no.92, the maximum and minimum quantity of the small and commercial quantity of the opium, and the chemical name of opium would include, any preparation containing opium, this Court at present does not want to go into such specification while concentrating on the provisions, which has been invoked in the present matter as of 8(B) and 18(c), the punishment as prescribed is rigorous imprisonment which may extend to 10 years with fine, which may extend to Rs.1,00,000/-.

Considering the fact that rigors of section 37 of the NDPS Act is not made applicable and the punishment so prescribed since the provisions of section 18(a) and section 18(b) has not been invoked in the matter, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.11211059220040 of 2022 registered with Nani Moldi Police Station, Surendranagar on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned trial court;

[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case.

Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.