Kalla Mallah vs The State Of Madhya Pradesh
2021 Latest Caselaw 6837 MP

                 The High Court of Madhya Pradesh
                      Cri. Revision No. 1933/2021
           Kalla Mallah & Ors. Vs. State of Madhya Pradesh

                                    1


Gwalior, 26.10.2021

        Shri Sarang Gupta, learned counsel for the petitioners.

        Shri Pramod Pachauri, learned Public Prosecutor for the

respondent State.

Shri V.D. Sharma, learned counsel appears as amicus curiae.

1. Present petition has been filed invoking the revisional power of

this Court u/S.397 read with Section 401 of CrPC, assailing the order

dated 09.08.2021 though of interlocutory nature but assuming finality

in respect of deciding the precious right of the petitioner to default

bail.

2. The impugned order declines the prayer made by petitioner for

bail in an offence punishable u/S.8/16 of Narcotic Drugs and

Psychotropic Substances Act, 1985 (for brevity, the 'NDPS Act'), qua

which he is in custody since 21.4.2021. With the aid of Section 167 of

CrPC read with Section 18(c) of NDPS Act petitioners have prayed for

default bail on the expiry of 60 days of custody period on the anvil of

the argument that Section 18(c) attracts maximum punishment of not

more than ten years.

3. Learned counsel for the petitioner has relied upon the decision

of Single Bench of Jharkhand High Court in case of Tipu Yadav vs. The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

State of Jharkhand, rendered on 31.03.2009 and another decision of

Coordinate Bench of this Court passed on 8.1.2021 in Criminal

Revision No. 1813/2020 (Raja Bhaiya Singh vs. State of MP), to

contend that in both the said decisions the benefit of default bail was

extended to similarly placed accused alleged with same offence where

the period of custody at the time of filing of charge-sheet was more

than sixty days.

4. To properly appreciate the contentions of learned counsel for

the petitioner it would be appropriate to reproduce Section 167 of

CrPC, Sections 8, 16, 18 and 36A of the NDPS Act as follows :-

"Section 167 of CrPC :

"167- Procedure when investigation cannot be completed in twenty-four hours,-- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, 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 authorize 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 authorize 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 The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police."

Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.--If any question arises whether an accused person was produced before the Magistrate as required under clause

(b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.

(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."

Section 8 of NDPS Act :

" 8. Prohibition of certain operations.-No person shall -

(a) cultivate any coca plant or gather The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

any portion of coca plant; or

(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:

Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."

Section 16 of NDPS Act :

"16. Punishment for contravention in relation to coca plant and coca leaves.--

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates any The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

coca plant or gathers any portion of a coca plant or produces, possesses, sells, purchases, transports, imports inter-State, exports inter- State or uses coca leaves shall be punishable with rigorous imprisonment for a term which may extend to ten years or with fine which may extend to one lakh rupees."

Section 18 of NDPS Act :

"18. Punishment for contravention in relation to opium poppy and opium.-- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,--

(a) where the contravention 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) where the contravention 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 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;

(c) in any other case, with rigorous imprisonment which may extend to The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

ten years and with fine which may extend to one lakh rupees."

Section 36-A of NDPS Act :

"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;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers--

(i) when such person is forwarded to him as aforesaid; or The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

(b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36.

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

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily."

5. A bare reading of Section 167 of CrPC reveals that an accused

in custody is entitled to default bail without going into the merits of the

allegations if the investigation is not completed within sixty days in

offences attracting punishment up to ten years or within a period of

ninety days in offences attracting sentence more than ten years.

5.1 However, certain special enactments promulgated to deal social The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

ills such as NDPS Act, 1985 prescribe for longer period of 180 days to

be eligible for default bail provided where offences u/S.19 or Section

24 or Section 27-A of NDPS Act are alleged or any offence under

NDPS Act involving commercial quantity. The reason behind

stipulating a longer period as pre-requisite for default bail in a Special

Act (e.g.- NDPS Act) is not far to see. The NDPS Act is a statute to

deal with the social menace arising from use and misuse of drugs.

6. In the instant case, 70 qtls of opium plants have been recovered

from the fields allegedly belonging to the petitioner.

7. The contention of learned counsel for the petitioner by drawing

attention of this Court to Note-3 appended to the Table under

notification published in the Gazette of India dated 19.10.2001,

submits that the said Note with respect to cultivation of opium poppy

expressly provides that this offence would be covered u/S.18(c) of the

NDPS Act. For ready reference and convenience Note-3 is reproduced

below :-

Note.--3. "Small Quantity" and "Commercial Quantity" with respect to cultivation of opium poppy is not specified separately as the offence in this regard is covered under clause (c) of section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985."

The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

7.1 Note-3 thus clearly and unambiguously provides that offence of

cultivation of opium poppy is punishable u/S.18(c) of NDPS Act

attracting maximum sentence of ten years and with fine which may

extend to Rs.1.00 lakh.

8. However, on the other hand, learned counsel for the State urges

that the offence alleged against the petitioner is defined in Section 8

(b) of the NDPS Act, which inter alia deals with cultivation of opium

poppy and its punishment is prescribed u/S.18(b) to the extent that if

the quantity involved is commercial then the punishment is of rigorous

imprisonment up to twenty years with fine which may extend to

Rs.2.00 lakhs. In this background, learned counsel for the State Shri

Pachauri submits that since the punishment prescribed for the offence

in question where fare more that commercial quantity of opium poppy

has been seized is up to twenty years, the petitioner is not entitled to

the benefit of default bail merely after expiry of sixty days u/S.167 of

CrPC especially due to overriding effect of Section 36-A(4) of NDPS

Act.

8.1 It is lastly submitted by learned counsel for the State that the

petitioner has not yet completed 180 days of custody period and

therefore the benefit of default bail is not available to him.

The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

9. After having heard learned counsel for the rival parties and also

after having heard Shri V.D.Sharma, the amicus curiae, this Court has

to iron out the creases which appear to have arisen due to prima facie

conflict between Note-3 and Section 18(b) of the NDPS Act.

10. It goes without saying that Note-3 is part of notification dated

19.10.2001 which is an executive instruction though issued in exercise

of statutory powers conferred by clauses (viia) and (xxiiia) of Section

2 of the NDPS Act.

10.1 However, the facts of the case reveal that the offence alleged

against the petitioners is defined u/S.8(b) while its punishment is

prescribed u/S.18. Unfortunately, the prosecution appears to have

wrongly alleged Section 16 of the NDPS Act against the petitioners

since Section 16 does not deal with the narcotic drug opium (as

involved herein) but deals exclusively with narcotic drug - coca plant

and, therefore, alleging of Section 16 by the prosecution appears to be

an inadvertent mistake.

11. The next question which falls for consideration is as to whether

present case falls under clause (b) or (c) of Section 18 of NDPS Act ?

11.1. The quantity seized in the present case is 70 Qtls, i.e., 7000 Kgs.

which, by no stretch of imagination, can be treated as small quantity.

The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

Thus, this Court proceeds on the assumption that the quantity of seized

opium plant, from the petitioners, is commercial quantity.

11.2. Note-3 of the Table appended to the notification dated

19.10.2001 under the NDPS Act however classifies the offence of

cultivation of opium poppy to fall under clause (c) of Section 18 of

NDPS Act. Clause (c) of Section 18 deals with cases which do not fall

under clause (a) and (b) of Section 18. Meaning thereby that cases

where the narcotic drug involved is neither of small quantity nor of

commercial quantity, such cases would fall under clause (b). In other

words, clause (c) relates to offence where narcotic and psychotropic

drug seized is more than small quantity but less than commercial

quantity.

11.3 Since this Court has already found on prima facie assessment

that quantity seized in the present case appears to be much more than

commercial quantity, it is obvious that the present case falls u/S.18(b)

of NDPS Act where the maximum sentence prescribed is twenty years.

11.4 Any other view would lead to misuse of the provision of default

bail by accused who are alleged with cultivation of quantity of Opium

crop which apparently appears to be more than commercial quantity.

11.5 The apparent conflict between Section 18(c) and Note-3 of the The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

Table can be resolved by relying upon the time tested principle that in

case of variance between an executive instruction (be it statutory in

nature) and statutory provision in the NDPS Act, the statutory

provision would prevail over the instructions.

11.6 As such in the considered opinion of this Court, the contents of

Note-3 of the Table vide notification dated 19.10.2001 issued under

the NDPS Act will have to give way to the substantive statutory

provision u/S.18(b) of NDPS Act.

12. Now, the next issue which stares in the face of this Court is the

contra view taken by Coordinate Bench in the case of Raja Bhaiya

Singh (supra). The Coordinate Bench in the said case, in its judgment

in para 28 has held that the offence therein was u/S.8(b) read with

Section 20(a)(i) attracting punishment up to ten years. While coming

to this finding the Coordinate Bench found that the quantity of

cannabis plants seized in that case was 36 green small and big plants of

ganja weighing 115 Kg. The Coordinate Bench was of the view that

Note-3 appended to the Table vide notification dated 19.10.2001 does

not cover cultivation and therefore such cases fall u/S.18(c) of NDPS

Act which attracts punishment more than 10 years' impriosnment,

thereby entitling the accused to seek default bail on expiry of 60 days.

The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

The co-ordinate Bench appears to have overlooked the palpable

conflict between Note-3 of notification dated 19.10.2001 and

Sec.18(b) of NDPS Act. In the humble opinion of this court, Sec.18(b)

would prevail upon Note-3 of said notification.

13. In the backdrop of the view taken by this Court that the quantity

seized of opium plant is 7000 Kgs, which is more than commercial

quantity prescribed and the offence punishable apparently appears to

be under Section 18(b) of the NDPS Act which overrides the provision

of Note-3 appended to the Table issued by notification published in the

Gazette of India dated 19.10.2001, this Court holds that the petitioner

is not entitled to default bail before expiry of 180 days which is not yet

over.

14. This Court is in respectful disagreement with the view taken by

the Coordinate Bench in Raja Bhaiya Singh (supra) as the case at

hand if is allowed to be governed by Note-3 then default bail would be

available to the petitioner u/S.167 CrPC notwithstanding the

mandatory bar in Sec.36A(4) of NDPS Act which has overriding effect

over Cr.P.C.

15. In view of above, this Court deems it appropriate to refer the

matter to Hon'ble the Chief Justice for constitution of an appropriate The High Court of Madhya Pradesh Cri. Revision No. 1933/2021 Kalla Mallah & Ors. Vs. State of Madhya Pradesh

Bench for resolving the dispute which in nutshell is summarized

below:

(1) Can 7000 Kgs. of opium plants be treated to be less than commercial and small quantity to fall u/S.18(c) NDPS Act r/w Note-3 of Notification dated 19.10.2001, for availing benefit of default bail u/S.167 Cr.P.C. despite bar u/S.36-A(4) NDPS Act?

(2) Whether the Coordinate Bench in the case of Raja Bhaiya Singh vs. State of MP (Criminal Revision No. 1813/2020, decided on 8.1.2021) has laid down the correct law or not ?

Registry is directed to transmit the record of present case to the

Main Registry for doing the needful.

(Sheel Nagu) Judge

pd Digitally signed by PAWAN DHARKAR

PAWAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh,

DHARK 2.5.4.20=5da1b3ce5c6aee672b1f51a5c ff5661c113046ab7ebb8031c36dcac44 72c040a, pseudonym=22FE9CB9F7CF0345E7FF AC9031E38DF6A29B4C10,

AR serialNumber=C72B9531562BC6028F5 D6E42E82477C85878470B30E4A7672C CA523E83C0BCB9, cn=PAWAN DHARKAR Date: 2021.10.28 09:11:56 +05'30'