SUBHAS ROY Vs. STATE

JUDGEMENT

(1.) The matter is taken up for passing order on the bail petition filed by the petitioner. It has been argued on his behalf that the offence under section 20 NDPS Act, 1985 should be treated as bailable in view of the recent amendment of the said Act (Act No. 9 of 2001) whereunder the expression 'small quantity' has been redefined. According to Mr. Mukherjee the quantity of ganja seized in this case being only one kilogram will fall within the category of 'small quantity' rendering the offence punishable with imprisonment for one year only. His further contention is that in view of the provisions of section 41 of the amended NDPS Act the lesser punishment which has been prescribed under the amended section 20 of the Act should be awardable in respect of all pending matters including bail-petitions and in that view of the matter under the provisions of the second schedule of the Criminal Procedure Code the offence should be treated as a bailable one, the maximum punishment that can be awarded for such an offence being only one year. Mr. Mukherjee further attracts our attention to the provisions of section 40 of the said Act also read with its section 2 and argues that the intention of the legislature has been made all the more clear by providing that every rule made under this Act by the Central Government and every Notification or Order issued under Clause (VIIa), Clause (XI), Clause (XXIIIa) of section 2, section 3, section 7-A, section 9A and Clause (a) of section 27 shall be laid, as soon as may be, after it is made or issued. According to him, the notification in question being in respect of section 2(xxiiia) this provision of section 40 will be attracted and it is to be assumed that the intention of the legislature has been to expeditite the issuance of notification by the Government. So that the amended provisions may be given effect to as soon as possible after the enactment came into existence.

(2.) Mr. Moitra learned Additional Public Prosecutor opposes this contention of the petitioner and submits that in such matters the date as announced by a notification from which the enactment is to take effect should be regarded as unchangeable and the Court has no other alternative but to give effect to the legislation on and from that date. He refers to the preamble of the Government Notification in question in support of this contention that the amended Act in question (Act No. 7 of 2001) is to take effect from the date announced, that is, 2nd day of October, 2001.

(3.) We have carefully examined the rival contentions of the learned counsel for both the sides. We are of the opinion that in this case the above reasoning of Mr. Mukherjee will not be applicable in view of the fact that the seized ganja in dispute weighs full one kilogram and is not of a lesser quantity. Under the Government notification in question read with amended section 3 (XXIIIa) in order to come within the 'small quantity' the ganja recovered from an accused person should be less than 1000 grams or one kilogram. Therefore it is clear that the ganja which has been seized from the possession of the accused-petitioner being just one kilogram does not fall within the category of 'small quantity' and obviously it does not come within the purview of the salutary provisions of the amended Act.