GANGARAM PATEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner calls in question legality of the order dated 12 -5 -1992 passed by the learned Judicial Magistrate, first class, Sohella directing to treat the case pending before him in 2(a) C.C. No. 83 of 1988 to be one covered by the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act ) and further directing to commit the case to the Sessions Judge Sambaipur.

(2.) THE background as portrayed by the petitioner is as follows: On 18 -7 -1988 the Inspector of Excise, Mobile Unit Bargarh searched the petitioner in presenceVof witnesses and found 100 grams of ganja dust from his possession. This was held to be illegal possession punishable under Section 47 (a) read with Section 55 of the Bihar and Orissa Excise Act, 1915 (in short, the 'Excise Act., After seizure the petitioner was arrested and was released on bail with a direction to appear in Court on the date fixed. Report was submitted to the Court of SDJM, Bargarh along with the seizure list. Subsequently it was transferred to the Court of JMFC Sohella. The case was registered as 2(a) C.C. No. 83 of 1988. On receipt of summons petitioner appeared before the JMFC. Sohella and trilad commenced for the alleged offence under Section 47 read with Section 55 of the Excise Act. After trial had proceeded, inspection was made by the learned Chief Judicial Magistrate Sambaipur and in his notes of inspection dated 1 -5 -1992 and 2 -5 -1992 it was observed that after coming into force of the Act the case under the Act required commitment to the Court of Session judge Sarobalpuf Learned JMFC ccordingly passed order dated 12 -51992 which is subject -matter of challenge.

(3.) FOR resolution of the controversy reference to Section 8 of the Act is necessary. The same reads as follows : 'B. Prohibition of certain operations -No person shall - (a) cultivate any coca plant or gather any portion of coca plant or (b) cultivateahe opium poppy or any cannabls plant or (c) produce, manufacture, process sell purchase, transport, warehouse, use, consume, import inter -State, export inter -State, Import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any provision, imposes any requirement by way of licence, permit or authorisation, also in accordance with the terms and conditions of such licence, permit or authorisation ; Provided that, and subject to the other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession use, consumption, purchase, sale transporty warehousing, import Inter -State and export inter State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.' The first proviso makes it clear that subject to other provisions of the Act and the Rules made thereunder, the prohibition against cultivation of the cannabis plant for production of Ganja or production, possession, use, consumption, purchase, sale, transport. Warehousing, import inter -State and export inter -State of Ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may by notification in the official gazette specify in this behalf. In other words under Section 8 prohibition of certain operations takes effect only from the date which the Central Government notifies in the official gazette. In exercise of powers under Section 52A(1) of the Act, the Central Government has declared Ganja to be a narcotic drug vide S.O. 381 (E) dated 29 -5 -1989 published in Gazette of India, Extraordinary, Part II, Section 3(ii), No. 300 dated 29 -5 -1989. The said notification reads as follows : 'S. O. No. 381 (E), dated 29th May, 1989 - In exercise of the powers conferred by Sub - Section (1) of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space, specifies the following narcotic drugs and psychotropic substances, namely ; 1. Narcotic Drugs ; (i) Opium; (ii) Morphine; (iii) Heroin; (iv) Ganja ; (v) Hashis ; (vi) Codeine; (vii) Thebaine; (viii) Cocaine; (ix) Poppy straw and any other manufactured drug as defined under Clause (xi) of Section 2 of the Act. 2. Psychotropic Substances : (1) Mathaqualone; (ii) T. H.C; (iii) Amphetamine ; and (iv) Any other psychotropic substances as defined under Clause (xxii) of Section 2 of the said Act. (No. 4/89 -F. No. 664/23/89/Opium).'