EXCISE COMMISSIONER Vs. HILAL AHMED

JUDGEMENT

(1.) THIS revision has been filed by Excise Commissioner, J&K, Government against the order passed by learned Sessions Judge, Kathua, by which the respondents have been allowed bail in a case under Narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred to as the Act).

(2.) THE case of the prosecution is that on 21.11.2003 poppy straw weighing 7 quintals was recovered from the respondents. After completion of the investigation challan was presented before the learned Sessions Judge, Kathua in which both the respondents were charge sheeted under section 15 of the Act to which they pleaded not guilty. The prosecution cited 14 witnesses to prove its case, out of which three witnesses were examined. Respondents moved an application for bail and bail was granted to them vide order dated 10.11.2004 on two counts i.e. chalan was not presented within the prescribed period in terms of Section 167(2) of the Criminal Procedure Code and the report of Forensic Science Laboratory sample reveals the characteristics features of Poppy plant itself is not sufficient to constitute contravention of the Act, aggrieved by which order the Excise Commissioner has preferred this revision for quashing the order of learned Sessions Judge and canceling the bail granted to the respondents.

(3.) MR . M. A. Bhat, learned counsel appearing for the petitioner contended that the learned Sessions Judge has passed the order in contravention of the provisions of Section 37 of the Act by observing that the characteristic features of poppy plant itself is not sufficient to constitute the contravention of the Act. He submitted that poppy plant comes under the definition of Narcotic drugs as defined in Sub -sections xvii and xviii of Section 2 of the Act. He further pleaded that the other ground taken by the learned Sessions Judge for granting the bail is that challan was not presented within the prescribed period and, therefore, respondents were entitled to bail under section 167(2) of the Code of Criminal Procedure. He contended that this ground taken by the learned Sessions Judge is without perusing the record. He pointed out that challan was presented within the prescribed period of 90 days, therefore, defence under section 167(2) of the Cr.P.C was not available to the accused persons.