AZIZ KHAN Vs. STATE

JUDGEMENT

(1.) The learned counsel for the petitioner has urged that the right of life and liberty of a person is sacrosanct and it should not be permitted to be interfered with. He has placed reliance on Supreme Court decision reported in Criminal Law Reporter SC 1980 "Gurbachan Singh Vs. State". Learned counsel for the petitioner states that in view of the law laid down by the Apex Court the case of the petitioner deserves consideration.

(2.) In a case where the petitioner was an earlier license holder of poppy husk. If at all he is found in possession of 12 gms. of opium, then it should be presumed that it was for his personal consumption. In that event no offence under Sec. 8/18 N.D.P.S. Act would be made out against the petitioner. The offence would be under Sec. 8/27 of the N.D.P.S. Act. The sentence which may be awarded under Sec. 8/27 is of one year rigorous imprisonment. That being the position, the rigour of Sec. 37 would not come into operation. Since the recovery has been made from a heap of dust, the petitioner should be favoured with an order of anticipatory bail.

(3.) The learned counsel for State has urged that at the time of recovery, the Investigating Officer came to know of the fact that the petitioner used to manufacture tablets known as 'madak' tablets and trade in those tablets which are derivatives of opium. Certain implements and spoon etc. have been recovered stained with opium and in this background, not only it can be said that opium was recovered from the residence of the petitioner but certain such implements have been recovered which are used for preparation of tablets containing opium as a substance. The statement of landlord was read to the Court and it has been stated by the landlord that he prohibited the petitioner in indulging in manufacture of the tablets and dealing with tablets but he has not stopped in trading and manufacture of the tablets which are the derivatives of opium. In such circumstances, it cannot be said that offence under Sec. 8/18 of N.D.P.S. Act is not made out and the provisions of Sec. 37 would not come into operation.