Prem Kumar Prasad vs The State of Bihar

Mandhata Singh, J.—Prosecution case initiated on written application of Muniram Singh, in brief, is that he along with a Home-Guard constable was returning O.P. after purchasing vegetable from Sonbarsa market. Jairam Bus was standing in front of Sonbarsa O.P., passengers were boarding on the Bus. One of the persons passed from the side of the informant was noticed with the smell of Ganja from his bag (Jhola). He was followed and asked to wait. He tried to board the Bus hurriedly but was apprehended by them. His bag was checked in presence of Ramashrya Yadav agent of the Bus and Sidhnath Singh owner of betel Gumti and others. Apprehended person disclosed his name as Prem Kumar Prasad son of Satyanarain Prasad of village Isarpur, P.S. Sahpur, District Bhojpur. From possession of apprehended Prem Kumar Prasad Ganja wrapped in Polythene in a gunny bag was recovered which was 1 kg 250 gms. Prem Kumar Prasad and seized article were handed over to Incharge O.P. Sonbarsa. Trial is ended in conviction and sentence to accused appellant for the offence u/s 47 (a) of the Bihar Excise Act.

It is pertinent to mention here that charge was framed in the case for the offence u/s 20(b)(i) of N.D.P.S. Act and in alternative for the offence u/s 47(a) of the Bihar Excise Act. Appellant has been convicted for the offence u/s 47(a) of Bihar Excise Act but not for the offence u/s 20(b)(i) of N.D.P.S. Act, validity of conviction and sentence awarded for the offence u/s 47(a) of Bihar Excise Act is challenged by filing this appeal.

Grounds in appeal are legal only. For the offence u/s 20(b)(i) of N.D.P.S. Act accused appellant is acquitted in the case. Submission on behalf of accused appellant is that after coming into existence of N.D.P.S. Act, Bihar Excise Act is not applicable for recovery or possession of Ganja. Before entering this aspect, it is pertinent to mention here that acquittal under N.D.P.S. Act is recorded on the ground that informant was not empowered to search and seizure as provided u/s 42 of N.D.P.S. Act. Further there is no compliance of section 50 of N.D.P.S. Act also.

Now it is for the Court to discuss if Bihar Excise Act is applicable in the case and conviction u/s 47(a) is legal or liable to sustain because of remaining no jurisdiction of Bihar Excise Act for seizure or possession of Ganja.

Section 81 of the N.D.P.S. Act provides for saving provision if leaves scope for application of Bihar Excise Act which runs as follows:

Saving of State and special laws.-Nothing in this Act or in the rules made there under shall affect the validity of any Provincial Act or an Act of any State Legislature for the time being in force, or of any rule made there under which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within India.

The above section is clear that this Act or Rules made there under shall not affect the validity of Bihar Excise Act or any other parallel State Legislation if imposes any restriction or provides punishment not imposed by this Act or imposes a restriction or provides for a punishment greater in degree.

Ganja is one of the items of Excise Act as well as of Narcotic Drugs and Psychotropic Substances Act and punishment for possession or traffic in or cultivation is greater in degree in this Act. So, there can be no punishment under the Bihar Excise Act.

Thus the conviction and sentence recorded by the trial court u/s 47(a) of the Bihar Excise Act is not liable to sustain.

On the observations made above and circumstance of the case, the appeal is allowed, judgment and order dated 17.12.1998 passed in N.D.P.S. Act Case No. 24/94 is set aside. In result accused appellant is acquitted of the charges leveled against him, set at liberty and discharged from the liabilities of bail bonds. Let a copy of this judgment along with lower court records be sent back to the court below forthwith.