Sandhya Rani Patra vs State Of Odisha

S.k. Panigrahi, J

The petitioner has filed the instant application under Section 439 of CrPC seeking bail in connection with R. Udaygiri P.S. Case No.23 of 2020 corresponding to G.R. Case No.21 of 2020 pending before the Court of the learned Special Judge, Gajapati, Paralakhemundi. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 20(b)(ii)(C), 25 and 29 of the N.D.P.S. Act.

The case of the prosecution is that on 15.03.2020, S.I. of Police R. Udaygiri P.S. along with other police personnel detained one auto- rickshaw bearing registration No.OD-07N-2070, during which one person fled away and the petitioner and other co-accused person were apprehended. During search, the police found two packets of contraband ganja weighing a total of 20 Kg. and were seized from his possession. The petitioner has been in custody from 15.03.2020.

Heard Sri B. R. Tripathy, Ld. Counsel appearing for petitioner and Sri Manoj Kumar Mohanty, learned Additional Standing Counsel for opposite party and perused the case records.

Learned counsel for the petitioner Sri B.R. Tripathy, has contended that Section 37 of the NDPS Act shall not be applicable since the quantity of contraband ganja involved is 20 Kg. which can be said to be lesser than commercial quantity but greater than small quantity. Further, he has contended that Section 37 of the NDPS Act is not applicable when the quantity of contraband is below commercial quantity and therefore should not pose a legal impediment for granting bail. He further contended that the petitioner was arrested on 15.03.2020 and since then she is in jail. Hence, she may be granted bail.

It is a settled position of law that Section 37(1) and 37(2) of the NDPS Act shall be applicable in regard to a bail application only when the seized contraband (Narcotic Drugs and Psychotropic Substances) is of commercial quantity. Several High Courts have iterated the same and interpreted the said issue like in cases of Rajvir Singh @ Raju vs State Of Punjab CRM-M-35080 of 2018 and Ranjeet Singh vs State CRL.A. No. 89/2011. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 introduced the concept of "small quantity" and "commercial quantity" for the purpose of imposing punishment. The punishment is graded as per the quantity involved- "small quantity", "commercial quantity" or an intermediate quantity.

The Central Government by way of a notification- S.O. 1055 (E) dated 19.10.2001 issued in exercise of the powers conferred by Section 2(viia) and 2(xxiiia) of the NDPS Act, has specified what would constitute "commercial quantity" and " small quantity" respectively, for different substances. The quantity mentioned in columns 5 and 6 of the table, in relation to the narcotic drugs or psychotropic substances mentioned in the corresponding entry in the columns 2 to 4 of the said table are the "small quantity" and "commercial quantity" respectively. For the purposes of the said clauses of that Section, Serial No.55 relates to ganja. In respect of ganja, the quantities prescribed as "commercial quantity" and "small quantity" are 1000 kg. and 20 kg. respectively. In lieu of the Central Government's notification, 20 kg. of ganja will not come within the definition of "commercial quantity" since the amount is lesser than commercial quantity and greater than small quantity. Therefore the restrictions/ limitations under Section 37 of the N.D.P.S. Act will not be attracted. Hon'ble Patna High Court has succinctly observed in Munshi Rai vs The State Of Bihar Criminal Appeal (SJ) No. 610 of 2012, and stated that:

"22. Hence, having regard to the facts and circumstances of the case as discussed above the conviction recorded under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act is hereby set aside and is substituted by conviction of the appellants under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act and sentenced for the period already undergone. The appeals are allowed in part. The appellant, namely, Munshi Rai is in Patna High Court CR. APP (SJ) No.610 of 2012 dt.11-07-2014 17 jail custody. He is directed to be released forthwith, if not required in any other case. Appellant, namely, Umesh Manjhi is on bail. He is discharged from the liability of his bail bond."

In addition, since 20 Kgs. is a quantity which is lesser than "commercial quantity" and greater than "small quantity", and will not constitute an offence under Section 20(b)(ii)(C) but will constitute an offence under Section 20(b)(ii)(B). On similar lines, the apex Court in the case of Ghasita Sahu vs. State of Madhya Pradesh AIR 2008 SC 1425 decided to reduce the punishment of the accused when it was pointed out by his counsel that the quantity of Ganja was less than the commercial quantity though more than the small quantity.

Our own High Court has also in several cases iterated that 20 kgs. of contraband ganja is a quantity which is lesser than "commercial quantity" and greater than "small quantity", and will not constitute an offence under Section 20(b)(ii)(C) but will constitute an offence under Section 20 (b)(ii)(B). In the case of Shaji Thomas vs State of Orissa 2015 (I) ILR CUT 193, this Court held that:

"6. But, the limitation of Section 37 of the N.D.P.S. Act applies in a case where the quantity of Narcotic Drugs and Psychotropic substance involved is of commercial quantity. The materials available on record must prima-facie disclose the indictment of the petitioners in an offence involving commercial quantity of Narcotic Drugs and Psychotropic substance in order to attract the limitations of Section 37 of the N.D.P.S. Act. Mere registration of a case for commission of offence involving commercial quantity does not attract per se the limitation of Section 37 of the N.D.P.S. Act"

"7. In such view of the matter, it can very well be said that quantity of 'Ganja' seized in this case being 20 Kgs., the same is not greater than the quantity specified in the aforesaid Notification. Therefore, in this case, there is no material to show that the petitioners are prima-facie indicted in an offence involving commercial quantity, but they are involved in an offence less than commercial quantity and more than small quantity. Hence, the limitation as provided in Section 37(1) of the N.D.P.S. Act for grant of bail has no application to this case."

Similarly, in the case of Anil Kumar Dash vs. State of Orissa 015 (II) ILR CUT 1233, this Court has held:

"6.....In view of Section 37 of the NDPS Act, the limitations on granting of bail specified in clause (b) of sub-section (1) of that section will not be applicable to the quantity of 20 kg. of ganja as the said quantity is lesser than "commercial quantity" but greater than "small quantity" and accordingly punishable under section 20(b)(ii)(B) of NDPS Act. The limitations shall apply, inter alia, for the offence under section 20(b)(ii)(C) of NDPS Act."

Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court is inclined to allow the prayer of the petitioner. Accordingly, the Court in seisin over the matter will enlarge the petitioner on bail imposing some terms and conditions as deems fit and proper with further condition that she will co-operate the investigation and shall not mis-utilise the liberty granted to her. However, it is made clear that any of the observations made hereinabove with respect to the facts of the case, shall not come in the way or prejudicially affect the fair trial of the present case.

For the aforesaid reasons, the present Bail Application is allowed.