Andhra Pradesh High Court - Amravati

M.Nagaraju vs The State Of Andhra Pradesh on 8 November, 2023

Bench: T Mallikarjuna Rao

     THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

              Criminal Petition No.8382 of 2023

ORDER:

1. This Criminal Petition, under Sections 437 and 439 of

Cr.P.C., has been filed by the petitioner/accused, seeking

regular bail, in Crime No.272 of 2023 of Kuppam Urban Police

Station, Chittoor District.

2. A case has been registered against the petitioner for the

offences punishable under Section 8(b) read with 20(a)(i) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short

„the NDPS Act‟).

3. Case of the prosecution, in brief, is that, on 07.07.2023 at

about 11.00 A.M. at Thangedikuppam Village, Kuppam Mandal,

the accused, who was cultivating Cannabis plants in Survey

No.115/8A3, was arrested under a cover of mahajarnama and

70 plants were destroyed by burning them. Then, the

Investigation Officer seized 3 cannabis plants and sent the same

for chemical examination after duly sealed and labeled. The

said cannabis plants were weighing about 50 Kgs and thereafter

the accused was sent for judicial custody.

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4. Learned counsel for the petitioner submits that as per the

Prosecution‟s case, the cannabis plants were seized and 70

plaints were destroyed and it is not the case that material was

found with flowering or fruiting tops along with seeds and the

weighment of the plants is 50 kgs and as such, it cannot be

treated as non-commercial quantity.

5. On the contrary, learned Assistant Public Prosecutor

opposed the petition on the ground that the investigation is not

completed.

6. Heard. Perused the record.

7. The expression "ganja" as defined in Section 2 (iii)(b) of

the NDPS Act, does not include seeds and leaves when not

accompanied by the tops. Section 2(iii)(b) defines ganja, that is,

the flowering or fruiting tops of the cannabis plant (excluding

the seeds and leaves when not accompanied by the tops), by

whatever name they may be known or designated.

8. The definition itself shows that when the leaves and twigs

are accompanying the flowering or fruiting tops, the same are

called "Ganja" and the leaves and twigs are not required to be

separated therefrom.

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9. As already noted, it is the prosecution‟s case that from the

fields of accused, three cannabis plants were seized and the

remaining 70 plants were destroyed. Nowhere in the

seizurenama, it has mentioned that the material found was with

flowering or fruiting tops. In the definition, the legislature has

specifically excluded seeds and leaves and specifically

mentioned that cannabis means fruiting or flowering tops.

10. According to the prosecution‟s case, weight of 70 ganja

plants is about 50 kgs. It is not the weight of the plants which is

to be taken into consideration. It is not the case that the said

plants contain flowering and fruiting tops.

11. Learned counsel for the petitioner contends that the

crime is registered against the accused was under Section 8(b)

r/w. 20(a)(i) of the NDPS Act. He further submits that if the

accusations made against the accused in the Remand Report

are taken to be true, Section 8(b) of the NDPS Act may be

applicable to the accused. At this stage, it is pertinent to refer

Section 8(b) and (c) of the NDPS Act, which reads as

under:

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"(b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter- State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf."

12. Learned counsel for the petitioner relied on Section 20

of the NDPS Act, which provides punishment for contravention

in relation to Cannabis plants and Cannabis, which reads as

under:

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;

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,--

1 [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten

TMR, J Crl.P.No.8382 of 2023

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 2 [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.]

13. Learned counsel for the Petitioner relied on Section 36A of

NDPS Act. For better appreciation, it is extracted hereunder:

36A- Offences triable by Special Courts.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; xxxxxxxx (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973

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(2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":

14. Learned counsel for the petitioner submits that, at best, if

the prosecution is able to establish its case, the accused may be

liable for punishment which may extend to ten years, at this

stage, it is pertinent to refer Section 167(2) of Cr.P.C., which

reads as under:

"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter."

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15. After considering the material on record, this Court finds

that section 36A of NDPS Act cannot be made applicable, as the

record does not disclose the seizure of commercial quantity of

ganja. The weight of the plants cannot be taken into

consideration in light of the foregoing discussion. By referring to

Section 167(2) Cr.P.C., learned counsel for the petitioner

contends that the petitioner is entitled to bail under Section

167(2) of Cr.P.C., as he has been in judicial custody since more

than 90 days and he has been in actual judicial remand for 120

days. Considering the above referred provisions, this Court finds

force in the submission of the petitioner‟s counsel in this regard.

16. After careful reading of the above provisions referred

supra, and in view of the facts and circumstances of the case,

this Court is inclined to grant bail to the petitioner/accused, on

the following conditions:

(i) The petitioner/accused shall be released on bail on

executing a personal bond for Rs.25,000/- (Rupees Twenty Five

Thousand only) with two sureties each for the like sum to the

satisfaction of the Additional Judicial Magistrate of First Class,

Kuppam.

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(ii) On release, the petitioner shall appear before the

Station House Officer concerned once in a fortnight in between