Suo Moto vs Union Of India
2021 Latest Caselaw 9784 Raj

(1 of 6) [CRLMP-2877/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 2877/2021

Suo Motu

----Petitioner Versus Union Of India

----Respondent

For Petitioner(s) : Suo Motu

JUSTICE DINESH MEHTA (VACATION JUDGE)

Order

11/06/2021

(1) The present petition under section 482 of Cr.P.C. has been

registered pursuant to order dated 11.6.2021, passed by this

Court in SB Cr. Misc. Bail Application No.4986/2021.

(2) While dealing with the said bail application and other like

matters, it has been brought to the Court's notice that the

notification No.1055(E) dated 19th October, 2001 issued by the

Central Government in exercise of the powers conferred by

clauses (viia) and (xxiiia) of section 2 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'the Act of 1985)

does not specify small or commercial quantity for cultivation of

Papaver somniferum commonly known as opium poppy or poppy

plants.

(3) Note No.3 given at the bottom of the notification gives out

following reason for not specifying the quantity:

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"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 cluase (c) of section 18 of the Narcotics Drugs and Psychotropic Substances Act,1985."

(4) In the opinion of this Court since the very cultivation of

opium poppy without a license is prohibited under section 18 of

the Act of 1985, the view of the Central Government that

cultivation of opium poppy irrespective of its quantity is covered

by section 18(c) of the Act of 1985, apparently runs contrary to

statutory position.

(5) In the face of above stipulation in the notification, each case

of cultivation of poppy plants irrespective of number (1 plant or 1

lac plants) is being considered punishable under the provisions of

section 18(c) of the Act of 1985 and offenders are being released

on bail without ensuring observance of the provisions contained in

section 37(1)(b) of the Act of 1985.

(6) The reason for forming the above opinion is based on

comparative reading of sections 16, 18 and 20 of the Act of 1985,

which provisions deal with the offence and punishment with

respect to cultivation of coca Plant, coca leaves, opium plant or

poppy plant and cannabis plant respectively.

(7) It will not be out of place to reproduce provisions contained

in sections 16, 18 and 20 of the Act of 1985 so as to have a

comprehensive look and better understanding of the scheme of

the Act of 1985:

"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

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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.]

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

20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever,in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,

(a) cultivates any cannabis plant; or

(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;

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(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.]"

* Emphasis supplied

(8) If the above provisions are read in juxta position, it comes to

fore that in case of cultivation of coca Plant so also in case of sale,

purchase of coca leaves, section 16 of the Act of 1985 provides

rigorous imprisonment for a term, which may extend to 10 years

or fine which may extend to Rs.1 lac. Whereas if the offence

relates to cultivation of cannabis Plant, clause (a) of section 20

read with clauses (b)(i) of the Act of 1985 prescribes rigorous

imprisonment for a term which may extend to 10 years and also

with a fine which may extend to Rs.1 lac. But when it comes to

provisions qua cultivation of poppy plants, the offence has been

kept at par with the offence of production, manufacture,

processing, sale, purchase, transportation, imports inter-State,

exports inter-State or use and accordingly punishment under

section 18 has been prescribed based on the quantity in question.

(9) It is noteworthy that as a consequence of differently

enacted provisions of section 18, the punishment for cultivation of

opium poppy too has been made relatable to the quantity and

separate punishment has been provided in clause (a), (b) & (c) of

Section 18. As per clause (a), if the contraband or prohibited

substance involves small quantity, the punishment is upto 1 year

(5 of 6) [CRLMP-2877/2021]

or with fine to the extent of Rs.10,000/-. According to clause (b)

if the contraband substance involves commercial quantity, the

punishment prescribed is minimum 10 years' imprisonment, which

may extend to 20 years alongwith fine, which shall not be less

than Rs.1 lac. Whereas clause (c) of section 18 lays down

imprisonment upto 10 years and fine extendable to Rs.1 lac in the

event of a case not being covered by clause (a) and (b) of section

18 of the Act of 1985.

(10) Section 37(1)(b) of the Act of 1985 postulates that in case

an offence involves commercial quantity the court would afford an

opportunity of hearing to the Public Prosecutor and record its

satisfaction of belief that the accused is not guilty of such offence

and he is not likely to commit any offence while on bail.

(11) However, on account of Note No.3 appended with the subject

notification, regardless of the number of plants (which in a given

case may be a lac), an accused/cultivator claims immunity from

rigors of section 37(1)(b) of the Act of 1985 and the courts are

left with no other option but to do away with the requirements of

section 37(1)(b) of the Act of 1985.

(12) Note No.3 in the notification dated 19.10.2001 is,thus,prima

facie incongruous and contrary to the provisions of section 18 of

the Act of 1985, because the Parliament has held even the

cultivation of opium poppy an equally serious offence as its

manufacture, processing, production, sale and purchase etc. by

the legislature.

(13) For what has been stated hereinabove, this Court deems it

expedient to call upon the Central Government to explain the

rationale behind insertion of "Note.3" in the notification dated

19.10.2001, instead of prescribing small and commercial quantity.

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The Court would examine expediency, legality or proprietary of

the 3rd note in the notification. The court may further issue

appropriate direction(s) to the Central Government (if deemed

necessary) to prescribe small quantity and commercial quantity in

terms of number of plants or area cultivated so as to bring the

notification in consonance and harmony with the provisions and

scheme of the Act.

(14) Let notices be issued to the Union of India, through Ministry

of Finance, Department of Revenue and also to the State of

Rajasthan. Notice of Union of India be served upon Mr. Mukesh

Rajpurohit, Assistant Solicitor General and notice of State of

Rajasthan be served upon Mr. Farzand Ali, learned Additional

Advocate General.

(15) The case be listed before the roster bench on

12.07.2021,while reflecting names of above referred counsel in

the cause list.

(DINESH MEHTA), VJ.

S1-cpgoyal/-

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