PRAMOD GANPAT WANKHEDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Shri V. M. Deshpande, learned Advocate for the applicants appointed as amicus curiae and Shri T. B. Mirza, learned A. P. P. , for respondent-State.

(2.) THIS matter has came up before us as a reference from the learned Single Judge (Shri Mhase, J.) by his order passed on 24-6-1997 to answer the question formulated by him as under: Whether the provisions of section 37 (1) (b) of the N. D. P. S. Act are not attracted in the matters of bail applications filed by the accused when the offence punishable under the N. D. P. S. Act is with the imprisonment which may extent to a period of five years?

(3.) THE factual matrix which gave rise to a controversy on account of two conflicting judgments in respect of interpretation of section 20 (b) (i) and section 37 (1) (b) which is stated as follows: According to the prosecution case, the Assistant Police Inspector, Yeotmal on 18-2-1997, accosted one Fiat Car bearing No. MHR- 3840 came from Pandharkawda Road and when search was taken four bags containing Ganja were found. The total quantity of Ganja found with the applicants and other accused was one quintal and 640 grams. Therefore, offence under sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ) was registered. After the charge-sheet was filed, applicants filed Misc. Criminal Application No. 57/1997 for bail in the trial Court. Learned Additional Sessions Judge, Yavatmal, rejected the bail application by order dated 26th May, 1997. Therefore, the applicants filed present application in this Court for bail under section 439 of Cri. P. C. As the contraband article found with the applicants was Ganja the provisions of section 20 (b) (i) of the Act would apply and under this section prior to amendment the punishment which was provided for was of rigorous imprisonment for a term which may extend to five years and shall be liable to pay fine which may extend to Rs. 50,000/ -. It was common ground that in respect of the offences under the Act the provisions contained in section 37 regulated and dealt with the question of grant of bail to the accused, who has committed or alleged to have committed the offence under the Act. For appreciating the rival contentions, it is appropriate to refer to sections 20 and 37 of the Act which read thus: