AKHLAK @ VILSAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Challenge in this criminal revision petition is to the order dated 9th March, 2010 whereby the learned Additional Sessions Judge No. 1, Kota, dismissed the application under section 36-A Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'N.D.P.S. Act, 1985).

(2.) The accused petitioners Akhlak @ Vils and Monu are alleged to have been found in the possession of 65 grams and 60 grams 2.40 mg. charas respectively.

(3.) Heard the learned Counsel for the accused revisionists, learned Public Prosecutor appearing for the State and carefully perused the impugned order. Learned Counsel for the revisionists canvassed that on 24th June, 2009, 65 grams charas is alleged to have been recovered from the possession of accused Akhlak and 60 grams 2.40 mg. charas in a packet is alleged to have been recovered from the possession of accused Monu during their search. As per the table appended to the N.D.P.S. Act, 1985, 100 grams charas has been determined to be the small quantity and charas 1 Kg. or above has been defined to be commercial quantity. If any accused is found to be in possession of charas which is small quantity, the offence is punishable with six months imprisonment which is triable by the Court of Judicial Magistrate and not by the Special Court. From both the accused persons less than 100 grams charas is alleged to have been recovered and as such their offence is triable by the Court of Judicial Magistrate-First Class. Despite that being the tangible legal position, the learned Trial Court arbitrarily held that since more than 100 grams charas has been recovered from the possession of the two accused persons. the case was not triable by the Court of Judicial Magistrate and dismissed their application under section 36-A of N.D.P.S. Act vide impugned order, which deserves to be set aside.