K.Ranjith, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3862 AP

* HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

               + Criminal Petition No.5349 of 2021

% Dated 01-10-2021.

# K. Ranjith
                                                       ..... Petitioner/A6
Versus

$ The State of A.P. through SHO, Gangavaram P.S.,Chittoor
District, rep. by Public Prosecutor, High Court of A.P., Amaravati.
                                                         ..Respondent

! Counsel for the petitioner         : Dr.Majji Suri Babu,
                                       learned counsel

^ Counsel for respondent             : Learned Addl. Public Prosecutor


<GIST:

> HEAD NOTE:

? Cases referred:

      1. 2017 SCC OnLine Del 12810
      2. (1994) 3 SCC 299
      3. (2014) 8 SCC 273
                                 2                               CMR, J.

Crl.P.No.5349 of 2021

IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

Criminal Petition No.5349 of 2021

K.Ranjith ..... Petitioner/A6 Versus

The State of A.P. through SHO, Gangavaram P.S.,Chittoor District, rep. by Public Prosecutor, High Court of A.P., Amaravati.

..Respondent

JUDGMENT PRONOUNCED ON: 01-10-2021

HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

1. Whether Reporters of Local newspapers --- may be allowed to see the Judgments?

2. Whether the copies of judgment may be -Yes- marked to Law Reporters/Journals

3. Whether His Lordship wish to see the fair -Yes- copy of the Judgment?

JUSTICE CHEEKATI MANAVENDRANATH ROY 3 CMR, J.

Crl.P.No.5349 of 2021

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

CRIMINAL PETITION No.5349 of 2021

ORDER:-

This Criminal Petition under Section 482 of the Code of

Criminal Procedure, 1973 (for short "Cr.P.C.") is filed seeking

quash of F.I.R in Crime No.324 of 2020 of Gangavaram Police

Station, Chittoor District, registered for the offence

punishable under Section 20(b)(ii)(C) of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (for short the „NDPS

Act‟).

2. Heard learned counsel for the petitioner and learned

Additional Public Prosecutor for the State.

3. On the allegation that the petitioner herein, who is A-6,

is responsible for illegal transportation of 600 gms of Ganja

and as Ganja of 100 gms in a packet was found in the vehicle

of the petitioner, who left the said vehicle 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 4 CMR, J.

Crl.P.No.5349 of 2021

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 imprisonment or with

fine which may extend to ten thousand rupees or with both

that the present case is amenable to Section 41A Cr.P.C and

thereby prayed to order for issuance of notice under Section

41A Cr.P.C to the petitioner without touching the merits of

the case. Thus, learned counsel for the petitioner has

confined his request in the Criminal Petition only to order

notice under Section 41A Cr.P.C.

5. Learned Additional Public Prosecutor would submit that

since the F.I.R is registered for the offence punishable under

Section 20(b)(ii)(C) of the NDPS Act and as the said offence is

punishable with imprisonment for a term not less than ten

years and which may extend to twenty years and also liable

for fine that the present case is not amenable to Section 41A

Cr.P.C. He would also contend that Section 41A Cr.P.C

cannot be applied to an offence punishable under the special 5 CMR, J.

Crl.P.No.5349 of 2021

enactment i.e. the NDPS Act. In support of his contention,

he relied on the judgment of the High Court of Delhi in the

case of Vakamulla Chandrashekar Vs. Enforcement

Directorate1, which was rendered under Prevention of Money

Laundering Act (for short „PMLA‟).

6. Considering the aforesaid rival contentions of both the

parties and the facts of the case, it is to be first seen 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.

7. 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

2017 SCC OnLine Del 12810 6 CMR, J.

Crl.P.No.5349 of 2021

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. 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. Name of Other non- Chemical Small Commercial No. Narcotic Drug proprietary Name quantity Quantity and name (in gm) (in gm./kg.) Psychotropic Substance (International non-

          proprietary
          name (INN)
 (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
                                           7                                      CMR, J.
                                                                    Crl.P.No.5349 of 2021




      (b)   produces,     manufactures,       possesses,   sells,    purchases,

transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable ----

(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to sub-clause (b),--- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine, which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

10. As can be seen from the aforesaid Section of law, 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 8 CMR, J.

Crl.P.No.5349 of 2021

Section 20(b)(ii)(C) of the NDPS Act, which is relating to

commercial quantity, is obviously erroneous. Clause (C) of

sub-clause (ii)(b) of Section 20 of the NDPS Act applies only

when the Ganja involved is of 20 Kgs. as it is a commercial

quantity as per the aforesaid notification. The said offence

under Section 20((ii)(b)(C) of NDPS Act relating to possession

or illegal transportation of Ganja of a commercial quantity is

punishable with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to

twenty years and shall also be 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 9 CMR, J.

Crl.P.No.5349 of 2021

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 special enactment.

But there is nothing in NDPS Act which excludes application

of the provisions of Cr.P.C relating to arrest and also the

procedure contemplated under Section 41A Cr.P.C to the

offence under the special enactment i.e. NDPS Act.

14. In this context, it is relevant to note that Section 4(1) of

Cr.P.C. mandates that all offences under the Indian Penal

Code shall be investigated, inquired into, tried, and otherwise

dealt with according to the provisions of the Cr.P.C. Now, it is

significant to note that clause (2) of Section 4 of Cr.P.C.

further mandates that all offences under any other law shall

be investigated, inquired into, tried, and otherwise dealt with

according to the same provisions i.e. of Cr.P.C, but subject to

any enactment for the time being in force regulating the

manner or place of investigation, inquiry and trial etc.

Therefore, the offences under the NDPS Act being offences

under any other law i.e. other than the Indian Penal Code

shall also be investigated and dealt with according to the

provisions of Cr.P.C. as there is nothing in the NDPS Act 10 CMR, J.

Crl.P.No.5349 of 2021

regulating the manner in which the investigation of offences

under the NDPS Act is to be made.

15. Now it is significant to note that Section 51 of the NDPS

Act clearly mandates that the provisions of the Code of

Criminal Procedure, 1973, shall apply to all warrants issued

and arrests, searches and seizures made under the NDPS

Act. For better appreciation, Section 51 of the NDPS Act is

extracted hereunder and it reads as follows:

"51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.--

--The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."

16. Therefore, it is now clear that the relevant provisions

relating to arrest as contemplated under Cr.P.C. are clearly

made applicable to the offences punishable under the NDPS

Act. Since, Section 41-A Cr.P.C. in a way pertains to arrest of

an accused, the procedure contemplated under Section 41-A

of Cr.P.C. relating to arrest of an accused undoubtedly

applies to a person involved in an offence under the NDPS Act

when the said offence is punishable with less than seven

years period of imprisonment.

17. The Apex Court in the case of State of Punjab Vs.

Balbir Singh2 held at para No.5 of the judgment that search,

seizure or arrest carried out by them in an offence under the

(1994) 3 SCC 299 11 CMR, J.

Crl.P.No.5349 of 2021

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 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.

18. In fact, even in the judgment of the Delhi High Court,

which is relied on by the learned Additional Public Prosecutor

in Vakamulla Chandrashekar Vs. Enforcement

Directorate1, while dealing with the legal position whether

the procedure contemplated under Section 41A Cr.P.C can be 12 CMR, J.

Crl.P.No.5349 of 2021

made applicable to an offence registered under the PMLA, the

Delhi High Court clearly held that there is nothing in the

special enactment to exclude the application of the provisions

of Cr.P.C and also procedure contemplated under Section 41A

Cr.P.C and thereby ordered that the authorities concerned

under the PMLA shall adhere to the guidelines under Sections

41 and 41A Cr.P.C. Therefore, the ratio laid down in the

above judgment is more in favour of the petitioner herein and

it is against the contention raised by learned Additional

Public Prosecutor that benefit of the procedure contemplated

under Section 41A Cr.P.C cannot be made applicable to the

offence under the special enactment.

19. Similar provision akin to Section 51 of the NDPS Act is

also available in the Prevention of Money Laundering Act,

2002 (for short, "the PMLA"). Section 65 of the said Act is the

said provision which provides that the provisions of the

Cr.P.C shall apply in so far as they are not inconsistent with

the provisions of the PMLA to arrest, search and seizure etc.

Considering the said Section 65 of the PMLA, the Delhi High

Court also in the above judgment in Vakamulla

Chandrashekar Vs. Enforcement Directorate1 held at

para.No.60 that there is nothing in the scheme of the Act i.e.

PMLA to suggest that Sections 41 and 41A of the Code would

not apply to the exercise of power of arrest under Section 19

of the PMLA by one of the authorised officers. Also held that

there is no provision in the PMLA, in respect of which it could 13 CMR, J.

Crl.P.No.5349 of 2021

be said that Sections 41 and 41A are not in accord and that

the scheme of PMLA does not even impliedly exclude the

application of Sections 41 and 41A of the Code.

20. The said analogy squarely applies to the present facts of

the case. In the NDPS Act also Section 51 of the Act

mandates that the provisions of the Cr.P.C. in relation to

search, 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 14 CMR, J.

Crl.P.No.5349 of 2021

combined reading of Section 4(2) Cr.P.C. and Section 51 of

the NDPS Act makes the legal position very clear that the

safeguard contained in Section 41-A Cr.P.C. is also applicable

to the offences under the NDPS Act. The Apex Court in the

case of Arnesh Kumar v. State of Bihar3 clearly observed as

follows:

"The aforesaid provision of Section 41A of Cr.P.C. makes it clear that in all cases where the arrest of a person is not required under Section 41(1) Cr.P.C, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, that the police officer is of the opinion that the arrest is necessary."

22. It is further held that at that stage also, the condition

precedent for arrest as envisaged under Section 41 Cr.P.C.

has to be complied and shall be subject to the same scrutiny

by the Magistrate as aforesaid.

23. Therefore, the said laudable object of protecting the

liberty of a citizen from unnecessary and arbitrary arrest

cannot be defeated by accepting the contention that the

safeguard under Section 41-A of Cr.P.C. applies only to the

offences under the Indian Penal Code and not to the offences

under the special enactments.

    (2014) 8 SCC 273
                                15                              CMR, J.
                                                  Crl.P.No.5349 of 2021

24. To sum up, the upshot of above discussion is that

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.

25. In fine, as it is found that the procedure contemplated

under Section 41A Cr.P.C can also be applied to the offences

punishable under NDPS Act, which are punishable with less

than seven years period of imprisonment, this Criminal

Petition is disposed of with a direction to the Investigating

Officer to follow the procedure contemplated under Section

41A Cr.P.C against the petitioner, as it is found that the facts

of the case constitute only an offence punishable under

Section 20(b)(ii)(A) of the NDPS Act relating to possession of

Ganja of small quantity, which is of 600 gms, which is

punishable with less than seven years period of

imprisonment.

                                 16                             CMR, J.
                                                  Crl.P.No.5349 of 2021

Miscellaneous petitions, if any pending, in the Criminal

Petition, shall stand closed.

_____________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 01.10.2021.

Note:

L.R. copy to be marked.

B/O akn/cs