RAJUBHAI DINESHBHAI KATOSANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent - State.

(2.) This application has been filed under Sec. 439 of the Code of Criminal Procedure for regular bail in connection with the First Information Report being C.R. No.11211045220147 of 2022 registered with Sayla Police Station, Surendranagar for the offences punishable under Ss. 8(C) , 15(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act , 1985 (hereinafter referred to in short as 'the NDPS Act ').

(3.) Learned Advocate for the applicant submitted that that earlier Criminal Miscellaneous Application No.12735 of 2022 was withdrawn since during pendency of the application, the charge-sheet was filed and opportunity was granted to the applicant as prayed for to file a fresh application. It is further submitted that the order dtd. 12/10/2022 of the learned 4th Additional Sessions Judge, Limbdi rejecting the application for grant of bail, i.e. Criminal Miscellaneous Application No.411 of 2022 is unfortunate as the submission of the learned Additional Public Prosecutor is faulty and on that basis, the observations made by the learned Judge is also against the Table which notifies the specification of the small quantity and commercial quantity. It is also submitted that in the present case, the contraband recovered is 'posh dodva' and the poppy seeds / straw weighed 3 Kgs. and 200 grams which falls below the commercial quantity, as the element of commercial quantity described is 50 Kgs. Poppy Straw is noted at Serial No.110 in the Notification No.S.O.1550(E) dtd. 19/10/2001. It is further submitted that the Notification is readily available in all the Bare Acts. The learned Judge was only required to refer to the said Notification where the smaller quantity is 1000 grams while the commercial quantity is 50 Kgs. and any quantity in between is intermediate quantity. It is further submitted that learned Judge failed to interpret the same and had failed to understand the Table which is attached with the Notification. Referring to Sec. 15 of the NDPS Act, it is submitted that it is the punishment in relation to poppy straw. It is further submitted that the learned Judge would have also received the clarification by perusing the provision as Sec. 15(a) of the NDPS Act is for contravention which involves small quantity with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees or with both. Sec. 15(b) of the NDPS Act is for contravention which involves quantity lesser than commercial quantity but greater than smaller quantity which means that punishment would extend to 10 years and with a fine which may extend to Rs.1,00,000.00 while Sec. 15(c) of the NDPS Act is in relation to the contravention which involves commercial quantity which involves rigorous imprisonment for a a term which shall not be less than 10 years but which shall extend to 20 years and also be liable to fine which shall not be less than Rs.1,00,000.00 but which extend to Rs.2,00,000.00. It is further submitted that the Investigating Officer himself has invoked the provisions of Sec. 15(b) of the NDPS Act and thus, the punishment would extend to 10 years. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.