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2022 (2) TMI 884 - HC - Indian LawsRecovery of contraband - Smuggling - 600 grams of Ganja - commercial quantity or not - whether any offence under Section 20(b)(ii)(C) of the NDPS Act relating to illegal possession or transportation of commercial quantity of Ganja for which the F.I.R. was registered is made out or not? - HELD THAT - The facts of the case clearly show that the total quantity of Ganja involved in this case is only 600 grams. Learned Additional Public Prosecutor also did not dispute the said fact. He fairly concedes that the total quantity of Ganja involved in this case is only 600 grams. Therefore, the facts of the case attract only an offence punishable under Section 20(b)(ii)(A) of the NDPS Act, as the said total quantity of Ganja is only a small quantity. Notification specifying small quantity and commercial quantity was issued by the Central Government in exercise of the powers conferred on it by clause (viia) and (xxiiia) of Section 2 of the NDPS Act. The said notification contains a table specifying the small quantity of Ganja and commercial quantity of Ganja. The quantity of Ganja shown in Column No.5 of the said table is specified as small quantity. Serial No.55 in the said table relates to Ganja. At Column No.5 of it, it is shown that 1000 grams of Ganja is a small quantity and in Column No.6 it is shown that 20 K.Gs. of Ganja is a commercial quantity. It is now evident from the aforesaid notification that Ganja upto 1000 grams is considered to be a small quantity. Only Ganja of 20 Kgs. and above is considered to be a commercial quantity. When small quantity of Ganja is involved in commission of the offence, the imprisonment prescribed is for a term which may extend to one year or with fine, which may extend to ten thousand rupees, or with both. In the instant case, the Ganja involved in commission of the offence is only 600 grams, which is below the 1000 grams. Therefore, as per the aforesaid notification, it is to be held that the Ganja involved in this case is only a small quantity and an offence under Section 20(b)(ii)(A) of the NDPS Act is only made out. So, the very registration of F.I.R. for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act, which is relating to commercial quantity, is obviously erroneous - when it is found from the facts of the case that only an offence under Section 20(b)(ii)(A) of the NDPS Act is made out and as the said offence is punishable with less than seven years period of imprisonment, the case is clearly amenable to Section 41A Cr.P.C. Whether the procedure contemplated under Section 41-A of Cr.P.C. is applicable to the offences punishable under special enactment i.e. NDPS Act or not? - HELD THAT - The Apex Court in the case of STATE OF PUNJAB VERSUS BALBIR SINGH 1994 (3) TMI 173 - SUPREME COURT held that search, seizure or arrest carried out by them in an offence under the NDPS Act were obviously under the provisions of Cr.P.C. So, the provisions of arrest, warrant, search and seizure incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165 Cr.P.C are applicable to the said arrest, search and seizure, warrant etc., made under the NDPS Act. The aforesaid group of provisions includes Section 41-A of Cr.P.C. - the Apex Court also held that the provisions of Section 165 Cr.P.C, which are not inconsistent with provisions of NDPS Act, are applicable for effecting search, seizure, arrest under the NDPS Act. Further, it is significant to note that the Apex Court held that Section 4(2) Cr.P.C provides that all the offences under any other laws shall be investigated and inquired as mentioned therein. The application of provisions of Cr.P.C insofar as they are not inconsistent with provisions of the NDPS Act are not expressly or impliedly excluded to the offence under the NDPS Act. Therefore, there is absolutely no legal bar to apply the procedure contemplated under Section 41A Cr.P.C. to the offences under the NDPS Act. So, there is no substance in the contention of the learned Additional Public Prosecutor that the benefit of the procedure contemplated under Section 41A Cr.P.C cannot be extended to the offences under the NDPS Act, which are punishable with less than seven years period of imprisonment. Petition closed.
Issues Involved:
1. Quashing of F.I.R under Section 20(b)(ii)(C) of the NDPS Act. 2. Applicability of Section 41A Cr.P.C to offences under the NDPS Act. 3. Determination of whether the quantity of Ganja involved constitutes a small or commercial quantity. Detailed Analysis: 1. Quashing of F.I.R under Section 20(b)(ii)(C) of the NDPS Act: The petitioner sought the quashing of the F.I.R registered under Section 20(b)(ii)(C) of the NDPS Act, which pertains to the illegal transportation of commercial quantities of Ganja. The facts of the case revealed that the petitioner was found with 600 grams of Ganja. According to the notification issued by the Ministry of Finance, Department of Revenue, 1000 grams of Ganja is considered a small quantity, and 20 kilograms is considered a commercial quantity. Therefore, the offence should be categorized under Section 20(b)(ii)(A) of the NDPS Act, which pertains to small quantities. The court concluded that the F.I.R was erroneously registered under Section 20(b)(ii)(C) and should be quashed. 2. Applicability of Section 41A Cr.P.C to offences under the NDPS Act: The court examined whether the procedure under Section 41A Cr.P.C, which mandates issuing a notice to the accused instead of immediate arrest, applies to offences under the NDPS Act. The Additional Public Prosecutor argued against its applicability, citing the special nature of the NDPS Act. However, the court noted that Section 51 of the NDPS Act mandates that the provisions of Cr.P.C apply to all warrants issued and arrests made under the NDPS Act. The court also referenced Section 4(2) of Cr.P.C, which states that all offences under any law other than the Indian Penal Code shall be investigated according to Cr.P.C provisions unless specified otherwise. The court found no exclusion in the NDPS Act that would prevent the application of Section 41A Cr.P.C. Therefore, the court held that Section 41A Cr.P.C applies to offences under the NDPS Act, particularly those punishable with less than seven years of imprisonment. 3. Determination of whether the quantity of Ganja involved constitutes a small or commercial quantity: The court reviewed the facts and the notification specifying the quantities of Ganja. It was undisputed that the total quantity involved was 600 grams, which is considered a small quantity as per the notification. The court referenced Section 20 of the NDPS Act, which outlines the punishments for contraventions related to cannabis. For small quantities, the punishment is imprisonment for up to one year or a fine of up to ten thousand rupees, or both. The court concluded that the offence made out was under Section 20(b)(ii)(A) of the NDPS Act, not Section 20(b)(ii)(C), which pertains to commercial quantities. Therefore, the registration of the F.I.R under the wrong section was erroneous. Conclusion: The court directed the Investigating Officer to follow the procedure under Section 41A Cr.P.C, as the offence involved a small quantity of Ganja and was punishable with less than seven years of imprisonment. The Criminal Petition was disposed of with this direction, and any pending miscellaneous petitions were closed.
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