MADHUKAR PANDURANG KANTHALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present appellant came to be charged for the offence punishable under sections 20, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for the sake of brevity referred to as N. D. P. S. Act, 1985 ) and in the alternative section 27 of the N. D. P. S. Act, 1985. The Sessions Judge, Ahmednagar, on trial found the appellant guilty for commission of offence punishable under section 20 (b) (i) and 20 (b) (ii) of N. D. P. S. Act, 1985. Insofar as the offence under section 20 (b) (i) is concerned, the appellant is sentenced to suffer R. I. for three years and to pay fine of Rs. 5000/- in default to suffer R. I. for two months. Insofar as the conviction for offence punishable under section 20 (b) (ii) of the N. D. P. S. Act, 1985 is concerned, the appellant is sentenced to suffer R. I. for 10 years, and to pay fine of Rs. 1,00,000/- in default to suffer R. I. for one year. It is relevant to note that the appellant-accused is convicted for offence of possessing Ganja under section 20 (b) (i); whereas the accused is convicted for possessing Bhang under section 20 (b (ii) of the N. D. P. S. Act, 1985 and sentenced to harsher punishment of 10 years R. I. and fine of Rs. 1,00,000/ -. In brief, the case of the prosecution is that on 17-4-1998, the P. S. I. received an information from an informant that one Madhukar Pandurang Kanthale who was wearing white shirt and greenish coloured pant is selling Ganja and Bhang illegally near Munjoba Temple, Ahmednagar. On receiving this information from the informant, P. S. I. took entry in the station diary and called panchas along with the measuring scale so also sent a report regarding the information received by him to his superior officer through Constable. Along with the two panchas, P. S. I. went to the spot and found one person standing near a Tapri who matched the description given by the informant. He was as such apprehended and on enquiry being made he disclosed his name to be Madhukar Pandurang Kanthale, P. S. I. then introduced himself to the appellant-accused and also intimated about the object of search. It is the case of the prosecution that the accused was also informed that if he wants himself to be searched in the presence of some other Gazetted Officer or Magistrate, he has a right to ask for the same. He was also informed that Anupkumar Singh is the Superior Police Officer and he himself is a Gazetted Officer, and appellant-accused agreed to be searched in the presence of Anupkumar himself. On search being made, accused had on his person 50 packets, out of which 40 were of Ganja and 10 packets were of Bhang. It is only this quantity of alleged contraband article, which forms the basis for conviction of the appellant-accused. In regard to other recoveries made of Ganja and Bhang from one Tapri and house premises, the Sessions Judge has held that the prosecution has failed to prove that either the Tapri or the house premises are owned and/or possessed by the appellant and as such I need not discuss about those recoveries allegedly made from a Tapri and the house premises.

(2.) THE samples were taken from both the packets of Bhang and Ganja and were sent to the Chemical Analyser. The said property was attached. The appellant is in jail since 27-8-1999.

(3.) MR. C. R. Deshpande, learned Counsel appearing for the appellant has attacked the order of conviction and sentence of the appellant under section 20 (b) (ii) of N. D. P. S. Act, 1985, mainly on the ground that Bhang is not a contraband article and the provisions of N. D. P. S. Act, 1985 does not regulate the possession, sale and/or purchase etc. of bhang. The learned Counsel for the appellant has invited my attention to section 20 of the N. D. P. S. Act, 1985 which reads thus : 20. Punishment for contravention in relation to cannabis plant and cannabis.---Whosoever, in contravention of any provision of this Act or any Rule or Order made or condition of licence granted thereunder.- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable- (i) Where such contravention relates to Ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees. (ii) Where such contravention relates to cannabis other than Ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees: provided that the Court may, for reasons to be recorded in the judgment impose a fine exceeding two lakh rupees. Section 20 (b) (i) provides that whosoever in contravention of any provision of this Act or any Rule or Order made or condition of licence granted thereunder produces, manufactures, possession, sells, purchases, transports, imports, inter-State, exports inter-State or uses cannabis, shall be punished when the contravention relates to Ganja or cultivation of cannabis plant with R. I. for a term which may extend to five years. In so far as section 20 (b) (ii) is concerned, it provides for such contravention, when it relates to cannabis other than Ganja with R. I. for a term which shall not be less than 10 years. Needless to mention that cases falling under section 20 (b) (ii) are treated to be serious offences compared to one contained in section 20 (b) (i ). Cannabis is defined in section 2 (iii) of the N. D. P. S. Act, 1985, which reads thus: (iii) Cannabis (hemp) means--- (a) charas, that is, separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) Ganja, that is, the flowering or fruiting tops of the cannabis plant, (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom;