SUBASH CHANDRA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners having, been arrested for commission of offence under Section 20(b)(1) of the N.D.P.S. Act and their application for grant of bail having been rejected by the learned Second Additional Sessions Judge, Bhubaneswar, have approached this Court for grant of bail. They were found to be in possession of 2.75 Kg. of Ganja.

(2.) The question raised in this application by the learned counsel for the petitioners is whether in respect of an offence under Section 20(b) of the Narcotic Drugs and Psychotorpic Substances Act, 1985, Section 37 of the said Act as amended by Act 9 of 2001 shall operate as a bar or not ? Section 20(b) of the Act prescribes that whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, produces, manufacturers, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis shall be punished with the imprisonment as prescribed in sub-clause (ii) of Section 20 (b). In the principal Act, Section 37(b) provided that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail subject to the conditions enumerated in clause-1(ii) of the said provision. Since offence under Section 20(b) of the Act prescribes a punishment of imprisonment for a term which may extend to five years, this Court in a decision reported in 1992 (2) O.L.R.-395 : (1992) 5 OCR 555 (Banka Das and others v. State of Orissa) had decided that Section 37 (b) of the Act shall operate as a bar. Section 27 of the Act only provided a different punishment structure for possession of small quantity for personal consumption.

(3.) The principal Act has gone through an amendment which is called the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act No. 9 of 2001) and came into force w.e.f. 9th May 2001. Certain amendments have been made to Section 2, Section 20 and Section 37 of the principal Act. Section 2 (iii) (b) of the principal Act defines 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.