FAUJI RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) This is a petition for bail.

(2.) The allegation against the petitioner is that on a disclosure statement on 15-4-1986 under S. 27 of the Evidence Act, he led the police party to a place of concealment and got recovered a substance weighing two Kgs. allegedly opium. The petitioner was arrested there and then. It now transpires that the Chemical Examiner has opined that the sample extracted therefrom was opium. Statedly, ehallan has been put in by the prosecution in the Court of Judicial Magistrate 1st Class, Kaithal.

(3.) The enactment and application of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) with effect from 14-11-1985 has completely altered the traditional course adopted in such like cases. S. 18 of the NDPS Act, whereunder possession of opium is punishable, prescribes punishment of rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and the offender shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. The Court, for reasons to be recorded in the judgment, may even impose a fine exceeding two lakh rupees. Offences under the Opium Act, 1878, which stands now repealed under S. 82 of the NDPS Act, were required to be tried by a Magistrate 1st Class, for the punishment then was low and the trial was within his jurisdiction. Now, as it is obvious, a Magistrate of the 1st Class is empowered under S. 29 of Cri. P.C. to pass only a sentence of imprisonment for a term not exceeding 3 years, or of fine not exceeding five thousand rupees, or of both. This offence thus would have to be tried by a Court of Session and that too presumably on commitment under the provisions of the Code of Criminal Procedure. It is, therefore, imperative that such like cases be dealt with expeditiously as otherwise it would tend to put the offenders unnecessarily in jail for long periods of incarceration. On the other hand, in view of the seriousness of the offence which the Legislature has viewed by the enactment of NDPS Act, the matter of bail cannot be treated casually or the offenders cannot be released on bail on small amount of bonds.