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TMI Blog2022 (2) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... and ran away from the scene of offence, after seeing the police who reached the scene of offence on receipt of reliable information regarding illegal transportation of Ganja, the aforesaid crime was registered against the petitioner for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act. 4. Learned counsel for the petitioner would submit that as per the table furnished in the notification issued by the Ministry of Finance, Department of Revenue, in exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, dated 16.07.1996, at serial number 55, Ganja of 1000 gms is to be considered as small quantity. Therefore, he would submit that the facts of the case at best attract the offence punishable Section 20(b)(ii)(A) of the NDPS Act as the total quantity of Ganja involved in this case is only small quantity and facts of the case do not attract the offence punishable under Section 20(b)(ii)(C) of the NDPS Act, which pertains to commercial quantity. Therefore, learned counsel for the petitioner would submit that as the offence under Section 20(b)(ii)(A) of the NDPS Act relating to small quantity of Ganja is punishable with one year impri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn 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. The relevant portion of the said table contained in the aforesaid notification at Sl.No.55 is extracted hereunder for ready reference and it reads as follows: TABLE (See sub-clause vii(a) and xxiii(a) of section 2 of the Act) Sl. No. Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other non-proprietary name Chemical Name Small quantity (in gm) Commercial Quantity (in gm./kg.) (1) (2) (3) (4) (5) (6) 55. Ganja 1000 20 Kg. 8. Therefore, 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. 9. Now it is relevant to consider Section 20 of the NDPS Act and it reads thus; "20. Punishment for contravention in relation to cannabis plant and cannabis.---Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--- (a) cultivates any cannabis plant; or (b) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. So, when it is found that only a small quantity of Ganja of 600 grams is involved in this case, it is to be held that only an offence punishable under Section 20(ii)(b)(A) of the NDPS Act is made out and not an offence punishable under Section 20(ii)(b)(C) of the NDPS Act relating to commercial quantity. So, it is obvious that the police have registered the F.I.R. quoting a wrong section of law. 11. Therefore, 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. 12. Now the crucial question that arises for consideration is 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. 13. Learned Additional Public Prosecutor vehemently contended that the procedure contemplated under Section 41A Cr.P.C cannot be applied to the offence under special enactment. No doubt, the NDPS Act is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 held at para No.5 of the judgment 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 NDPS Act is not a complete code incorporating all the provisions relating to search, seizure etc., and the said Act after incorporating the broad principles regarding search, seizure, arrest etc. in Sections 41, 42, 43 and 49 has laid down in Section 51 that the provisions of Cr.P.C shall apply insofar as they are not inconsistent with the provisions of the NDPS Act to all warrants issued and arrests, searches and seizures made under the NDPS Act. 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, seizure and arrest etc. shall apply to the offences under the NDPS Act, in so far as they are not inconsistent with the provisions of the NDPS Act. There is nothing to indicate in the NDPS Act even to impliedly exclude the application of Sections 41 and 41-A Cr.P.C. Therefore, Section 41-A Cr.P.C. undoubtedly applies to the offences under the NDPS Act which are punishable with less than seven years of imprisonment. 21. In this context, it is also relevant to note that the provisions contained in Sections 41 and 41-A Cr.P.C. are meant to safeguard the liberty of citizens against arbitrary, whimsical or mala fide exercise of the power of arrest by the police officers. So, application of the said provision which is meant to safeguard the individual liberty of a citizen from arbitrary, whimsical or mala fide exercise of the power of arrest by the police officers cannot be excluded even to offences punishable under the special enactments when there is no express or implied provision in the said special enactment excluding application of the said provision. A combined reading of Section 4(2) Cr.P.C. and Section 51 of the NDPS Act makes the legal position very clear that the safegu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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