BIMBADHAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application made by the petitioner under section 439 of the Code of Criminal Procedure is before us by way of a reference made by a learned Single Judge of this Court because of apparent difference between two judgments by two different single Benches as regards applicability of section 27(b) read with Explanation (2) to section 27 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act), when the question of bail of a person arrested in connection with offence under the Act is concerned. The petitioner was arrested on 26/10/1992 with ganja of about 30 grams kept in 30 packets, two Chillams; three small clothes and cash of Rs. 181.50 paise representing the sale proceeds. His application for bail having been rejected by the Sessions Judge, he has filed the present application for enlargement on bail. Before the learned Single Judge contention was advanced that the quantity of ganja recovered from the petitioner being small, as notified by the Government in accordance with Explanation (1) to section 27, he, is entitled to bail. Since two decisions were cited before the learned Single Judge, one Bharat Chhula Singh @ Chual Singh v. State of Orissa1, where the accused was released on bail applying section 27 of the Act and the other State of Orissa v. Ganapali Mohanry, where section 27 was decided not to be attracted at the time of consideration of bail for offences alleged to have been committed under the Act, he referred the matter to the Division Bench.

(2.) Section 27 of the Act occurs in Chapter IV dealing with offences and penalties. Sections 15 to 32 of the chapter deal with different punishments to be meted out in respect of different offences. Section 27 consists of two parts. The rust pan deals inter alia with possession of small quantity of narcotic drugs of psychotropic substance which is proved to be intended for personal consumption of the accused and not intended for sale or distribution, and the second part is that the onus of proving that the material in question was not intended for sale or distribution but for personal consumption is upon the accused. Explanation (1) to the section provides that what would be small quantity to earn the benefit of the section would be as notified by the Central Government in the official gazette.

(3.) A plain reading of section 27 makes it abundantly clear that the benefit of the provision is available only at the conclusion of a trial and that too when the ingredients have been proved; by the accused. This section only prescribes the sentence to be imposed when the accused is able to substantiate his plea that the quantity of material found in his possession was small as notified and that it was not intended for sale or distribution but for personal consumption. No punishment becomes imposable until the trial of the case is over, which obviously means that the accused can prove the exceptions during the trial so as to earn a lesser sentence. Section 27 relates to a stage till after conclusion of the trial when consideration of the sentence to be imposed is made and hence has no application at the stage when the accused moves for bail during the investigation or the trial.