A. TRINATH PATRO Vs. THE STATE

JUDGEMENT

(1.) THE grievance raised by the petitioner in this case is the legality of an order passed by the JMFC, Digapahandi on 1 -8 -1991 cancelling the bail earlier granted to him in the prosecution faced by him Under Section 9(a) of the Opium Act and Under Section 47(a) of the Bihar and Orissa Excise Act. The petitioner faced the prosecution because of possession of 1300 gms. of opium and 1 kg, of Ganja which were seized from him. The learned Magistrate was of the view that since the Narcotic Drugs and Psychotropic Substances Act, 1985 (briefly, "the Act") makes provision in Section 82 that anything done or any action taken or purported to have been done or taken under any of the enactments repealed shall be deemed to have been taken under the Act, the offence committed by the petitioner falls Under Sections 17 and 20(b)of the Act where the punishment is not lass than ten years of rigorous imprisonment which may extend to twenty years and also liability to fine not less than one lakh rupees which may extend to two lakh rupees, the case had ceased to be within his jurisdiction to try being exclusively triable by the Court of Session and that as such he had no authority to allow the petitioner to continue on bail. Being of that view he cancelled the bail. The petitioner carried a revision before the Second Additional Sessions Judge, Ganjam where being unsuccessful he has approached this Court invoking the inherent powers Under Section 482, CrPC.

(2.) NOTICE had been given for admission and final disposal. Facts, as accepted by the parties, are that the date of occurrence is 8 -4 - 1987 and on the next day the petitioner was produced in the Court and was released on bail. The charge -sheet against him was submitted on 31 -8 -1987 Under Section 47(a) of the Bihar & Orissa Excise Act and Section 9(a) of the Opium Act. The Court framed charge against him on 22 -7 -1988. The trial commenced and on 17 -1 -1989 PWs 1 and 2 were examined, cross -examined and were discharged.

(3.) A perusal of the order of the learned Magistrate does not show him to have cancelled the bail applying the provisions of Section 37 of the Act. He was on the other hand of the view that since Section 82(1) & (2) of the Act makes provision for saving of actions taken under the repealed Act, the offence committed by the petitioner would be one Under Sections 17 and 20(b) of the Act and as such he had no jurisdiction to try the offence, for which reason he would also not have the power to continue the petitioner on bail earlier granted to him. It has hence to be seen as to whether the conclusion reached by the learned Magistrate is correct.