MOHD ASLAM Vs. STATE

JUDGEMENT

(1.) The charge against the petitioner is that he was found in possession of 19.9 kg of ganja and, accordingly, he is said to have committed an offence under section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ). The petitioner alongwith two co-accused were said to have been found in possession of a total amount of 48.2 kg of ganja. From co-accused, Mohd. Shahid alias Anthony Baba, a recovery of 5.8 kg of ganja is said to have been made and from Abdul Malik a recovery of 22.5 kg of ganja is said to have been made. Initially, when the FIR was registered, Section 29 was also mentioned in the offences as against the present petitioner. However, at the time of framing of charges, the charge has only been framed, in so far as the present petitioner is concerned, under Section 20 of NDPS Act. No charge has been framed under Section 29 insofar as the petitoner is concerned.

(2.) The learned counsel for the State opposes the grant of bail saying that a huge quantity amounting to a total recovery of 48.2 kg of ganja was recovered from the petitioner and the co-accused. If the total amount of ganja is also taken into consideration, it is far above the commercial quantity of 20 kg ganja specified under the Act and, therefore, the provisions of Section 37 of the NDPS Act would be attracted.

(3.) The learned counsel for the petitioner, however, submitted that since the petitioner is not charged under Section 29 of NDPS Act, only the recovery against the petitioner ought to be taken into consideration. The alleged recovery against the petitioner being of 19.9 kg of ganja, the same would not quantify to be a recovery of a commercial quantity as indicated under the NDPS Act. Accordingly, he submitted that Section 37 of the said Act would not be applicable and, therefore, the petitioner's case for grant of bail is to be considered on the same footing as other normal bail applications are considered under the Code of Criminal Procedure.