ABDUL GAFOOR Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) Petitioner along with two other accused were arrested on 30.8.2004 and 70 gms. of brown sugar was seized from the petitioner. He was released on bail. While on bail, he had left India. Later Annexure-IV final report was filed before Special Court, Vadakara alleging that accused committed offence under S.21(b) of N.D.P.S Act (hereinafter referred to as the Act). While so, first accused committed suicide. Third accused was convicted for the offence under S.21(b) of the Act. The conviction is challenged before this court and Crl.A. 1589/2006 is pending before this court. Petitioner on returning to India finding that non bailable warrant is pending, as the case as against him was removed to long pending register as L.P.9/2006 in SC.6/2006, filed Crl.M.C No. 141/2009 for a direction to Special Court to withdraw the non bailable warrant. It was disposed by Annexure-I order. Petitioner then surrendered before the learned Special Judge and sought bail. By Annexure-II order learned Special Judge dismissed the petition. Though petitioner filed an application for bail before this court, it is submitted by the learned counsel appearing for the petitioner that the petition was withdrawn. This petition is filed under S.482 of Code of Criminal Procedure. The prayer in the petition is to transfer Annexure-IV final report to appropriate court for trial and to release him on bail.

(2.) Case of the petitioner is that an offence under S.21(b) is attracted only if the petitioner was having in his possession a narcotic drug greater than the small quantity and lesser than the commercial quantity and if he has been in possession of only small quantity of the narcotic drug it is punishable only under S.21(a) of the Act providing a maximum sentence which may extend to six months or fine which may extend to ten thousand rupees. It is contended that if it is a small quantity, as provided under S.36A(1)(a) of the Act, Special Court has no jurisdiction to try the petitioner and he is to be tried by Judicial First Class Magistrate and when Annexure-V certificate of chemical analysis does not show the actual narcotic content, it could only be treated as a small quantity and therefore, learned Special Judge is to be directed to transfer the case to Judicial First Class Magistrate Court.

(3.) Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.