SHAKUNTALA BHAGWAT KSHIRSAGAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY an order dated 5th December, 1997, the learned Single Judge has made a reference to the Division Bench for deciding the following question :

(2.) ON 12th May, 1997 at about 8. 15 p. m. the petitioner was arrested for being found in possession of 1. 5 Kg. of Ganja. The petitioner is prosecuted for offence punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act for sake of brevity), in Crime Register No. 153 of 1997 registered by the police of Chatushringi Police Station, Pune. The petitioners bail application came to be rejected by the Additional Sessions Judge, Pune by his order dated 18th August, 1997. Thereafter, the petitioner approached this Court for bail by way of present application. At the time of hearing of this application, the learned Single Judge noticed that there are conflicting views of this Court about the applicability of Section 37 (1) (b) of the Act in respect of bail provisions relating to offence alleged to have been committed under Section 20 (b) (i) of the Act. Thus by an order dated 5th December, 1997, the learned Single Judge has made a reference to the Division Bench for deciding the question quoted above.

(3.) IN unreported decisions of this Court in (1) Criminal Application No. 2075 of 1992 decided on 13th August, 1992, and (2) Criminal Application No. 1453 of 1992 decided on 3-7-92 both by Mr. Justice Daud (as he then was), (3) Criminal Application No. 3049 of 1992 decided on 26-11-1992 by Mr. Justice I. G. Shah (as he then was), (4) Criminal Application No. 575 of 1997 decided on 27th March, 1997 by Mr. Justice Datar, and reported decisions of this Court in Ghanshyam alias Chotu son of Dagdu Waghmare v. State of Maharashtra, reported in 1997 (4) All MR 110 (Aurangabad Bench), it has been held that as offence under Section 20 (b) (i) of the Act is not compulsorily punishable with imprisonment of five years rigors of Section 37 (1) (b) of the Act are not attracted. A contrary view has been expressed by the learned Single Judge of this Court in the case of S. K. Chottu v. State of Maharashtra, reported in 1995 (1) Mah LJ 228. The learned Single Judge has held that while considering the bail application of the accused charged for offence punishable under Section 20 (b) (i) of the Act, provisions of Section 37 (1) (b) of the Act will be attracted as the punishment of imprisonment provided under Section 20 (b) (i) of the Act can be extended upto 5 years.