RUPADHAR PATEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under Section 439, Cr.P.C. has been filed for grant of bail to the petitioner who has been taken into custody for allegedly committing an offence under Section 20 (a) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as the Act). Prayer of the petitioner having been rejected by the learned AddI. Sessions Judge, Jharsuguda he has approached this Court for bail.

(2.) Sri Dhal, learned counsel appearing for the petitioner submitted that Section 37 of the Act as amended does not stand as a bar for considering the application of the petitioner for bail. In support of such contention, Sri Dhal referring to Section 20(a) of the Act submitted that punishment prescribed for the offence is for a maximum period of ten years with fine which may extend to one lakh rupees. Referring to Section 37 (b) of the Act, he submitted that the provision prescribed bar in respect of certain offences and those are offences under Section 19 or 24 or 27-A of the Act and the sentence for the aforesaid offence or offence relating to commercial quantity are more than ten years and the legislature Intended that wherever punishment prescribed is less than ten years or for a maximum period of ten years, bar under Section 37 (b) should not operate. Sri Pradhan, learned AddI. Standing Counsel on the other hand, submitted that there being no amendment to Section 20 (a) of the Act defining small or commercial quantity, Section 37 (b) of the Act shall operate as a bar and no offender shall be granted bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any such offence while on bail.

(3.) Section 20(a) of the Act provides that whoever, in contravention of any provision of the Act or any rule or order made or condition of licence granted cultivates any cannabis plant shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees. Section 37 (b) as amended prescribes that no person accused of an offence punishable for offences under Section 19 or 24 or 27-A of the Act and also for offences involving commercial quantity or more under the Act shall be released on bail unless other conditions are satisfied. So far as Section 19 is concerned punishment prescribed is imprisonment for more than ten years which may extend to twenty years. In respect of offence under Section 2.4 or 27-A of the Act similar provisions have been made and the minimum imprisonment prescribed is ten years which may extend to twenty years. So far as Section 20 (a) is concerned the maximum period of imprisonment prescribed is ten years. It also appears that by way of amendment in respect of ganja three categories have been made i.e. small quantity commercial quantity and quantity lesser than commercial but greater than small. In respect of small quantity, imprisonment prescribed for is maximum six months and in respect of quantity lesser than commercial and more than small maximum imprisonment prescribed is for a period of ten years, and in respect of these offences where sentence prescribed is for maximum period of ten years amended provision in Section 37 (b) does not operate as a bar.