RATTO Vs. STATE OF H P

JUDGEMENT

(1.) This matter has been referred on the following questions: Whether 01 kg. Cannabis (Charas) will be commercial quantity in the face of Section 2 (viia) of the Act. 1985. as has been held in the aforesaid two decisions of this court. For ready reference, both these decisions are extracted hereinbelow: 1 Cr.M.P. (M) No. 1492 of 2001: 4/1/2002 The quantity of the charas recovered in the present case is one kilogram that is the commercial quantity, therefore, the provisions of Section 37 of N.D.P.S. Act would apply. The petitioner, therefore, cannot be admitted to bail and his application is accordingly rejected. Cr. M.P. (M) No. 1088 of 2002: 29/9/2002: Notice. Learned Additional Advocate General waives service of notice on behalf of the State, Heard. The petitioner has been arrested for an offence under Section 20 of the N.D.P.S. Act for having been found in possession of one kilogram of charas. Vide Notification issued by the Central Government dated 19/10/200 1 published in the gazette of India. Extra -ordinary on 19/10/200 1, in a case of charas, one kilogram has been specified as commercial quantity. Since the petitioner was found in possession of one Kilogram of charas which is a commercial quantity within the meaning of said Notification the rigorous of Section 37 of N.D.P.S. Act would be applicable as it has been held by this Court in Mathew Andrews British National v. State of H.P. Cr. M.P. (M) No. 1492 of 2001 decided on 4/1/2002. There fore, no ground is made out for exercising the discretion of bail in favour of the petitioner. The application is accordingly rejected.

(2.) We may also notice that besides these, there is another decision of this court in State v. Munshi Ram, dated 7/11/2002, wherein bail had been allowed by the Additional Sessions judge (2). Kangra at Dharamsala to Munshi Ram espondent. He was found to be in possession of one kilogram of Charas While cancelling his bail and dealing whether one kilogram of the contraband was commercial or not, it was held as under: So far the notification dated 19/10/2001 is concerned, it specifies the quantity mentioned in column No.5 and 6 of the table as small and commercial quantity respectively in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said table. Cannabis and cannabis resin (CHARAS, HASHISH) are given at Sr. No. 23 and the small quantity thereof is 100 gms whereas commercial quantity is 1 kg. It is correct that under the definition of the commercial quantity it is prescribed that any quantity greater than the quantity specified in the notification is a commercial quantity and any quantity lesser than the quantity specified in the notification is smaller quantity, but it does not mean that commercial quantity should be more than I Kg. and small quantity less than 100 grams. In other words, the commercial quantity is 1 kg, and above and small quantity is 100 grams and less than 100 grams. The words greater or smaller than the quantity specified in the notification cannot be construed in such a manner as to make the commercial and small quantity as specified in the notification as noncommercial. Though there is no definition of non-commercial quantity, yet the quantity less than commercial quantity but greater than small quantity as referred to in Sections 20, 22 and 23 may be termed as non-commercial. In view of these provisions, non-commercial quantity will be from 101 grams to 999.999 grams. Therefore, the quantity 1 kg. involved in the present case is commercial quantity and the limitations as prescribed under Section 37 (1)(b) are applicable which have not been kept in view while granting bail by the Additional Sessions Judge and on this ground alone, bail deserves to, be cancelled.

(3.) This reference, we may add, assumes significance looking to the addition of definitions particularly of sub section (vu-a) of Section 2 added in the Narcotic Drugs and Psychotropic Substances Act, 1985 and other amendments to this law (hereinafter referred to as the Act), by amendments made by Central Act no. 9 of 2001, (hereinafter referred to as 2001 Act).