In CRIM. REVISION No. 1933 of 2021-MP HC- Offence of cultivation of opium poppy falls within Sec.18(c) of NDPS Act which is residuary clause providing rigorous imprisonment which may extend to 10 years and fine upto Rs 1 lakh, clarifies MP HC Justices Rohit Arya & Milind Ramesh Phadke [14-11-2022]

 

Read Order: KALLA MALLAH AND ORS Vs. THE STATE OF MADHYA PRADESH AND ORS 

Mansimran Kaur

Gwalior, November 22, 2022: In a case pertaining to the NDPS Act, it has been made clear by the Madhya Pradesh High  Court that Note-3 of the Schedule notified on October 19,2021, ensures that the offence of cultivation  of opium poppy in contravention of the Act does not go unaccounted for and is covered under Section 18(c).

The Division Bench of Justice Rohit Arya & Justice Milind Ramesh Phadke answered the instant reference order by stating that that 7000 kgs of opium can neither be termed as “small” nor “commercial” quantity, but should be treated to fall within the net of residuary clause; section 18(c) governing “any other case” r/w Note-3 of the Notification dated October 19, 2021 for availing the benefit of default bail u/S 167 Cr.P.C. 

Petitioner Kalla Mallah approached the High Court through Criminal Revision No.1933/2021 filed under Section 397 read with 401 of Cr.P.C. taking exception to the order dated August 9, 2021  passed by the Special Court t (under the NDPS Act), having declined benefit of default bail to the petitioners under Section 167(2)(a)(ii) of the Cr.P.C. 

On police raid, it was alleged that four persons including the three petitioners before this Court namely Kalla Mallah, Munna Mallah & Munshi Mallah and co-accused Mahendra, were found to have been cultivating opium poppy on Government land. Accordingly, a case was registered against them at Crime No.88/2021 for the offences punishable under Sections 8/16 of the NDPS Act and 70 quintals of opium poppy was seized.

As Challan could not be filed within 60 days, petitioners moved an application before the Special Court under Section 167(2)(a)(ii) of the Cr.P.C. read with Section 36(a)(4) of the NDPS Act seeking default bail. 

The trial court rejected the application primarily on the ground that as per Section 36A (4) of the NDPS Act, in case seizure of contraband under the NDPS Act falls in the category of commercial quantity as per the schedule, the period for  submission of charge-sheet under Section 167(2) of the Cr.P.C. shall be 180 days in place of 90 days. In the instant case as the quantity of 70 quintals of opium poppy seized is a commercial quantity and 180 days' period had not expired, therefore, the petitioners were not held entitled for default bail. It may be stated that the FIR is dated March 24, 2021 challan was not filed until August 9, 2021. 

The Single Judge opined that 70 quintals i.e. 7000 kgs. of opium-poppy, by no stretch of imagination, could be treated as a small quantity. Therefore, he proceeded on the assumption that the quantity of seized opium plants from the petitioners was commercial quantity and found that the same falls within the four corners of Section 18(b) of the NDPS Act. 

After considering the rival contentions, the Court noted that it is well settled that all penal statutes are to be construed strictly. If there is no ambiguity, there is no scope for interpretation and plain and literal meaning of the words used in the statute is to be adopted while applying the statute to a given set of facts.

It was further noted by the Court that it is the duty of the Court to give effect to the purpose - as expressed in clear and unambiguous language of the statue, and the Court is not permitted either to restrict or expand the meaning of the words used by the legislature which is in accord with the object of the statute. Besides, if reasonable and plain interpretation of a penal statute avoids penalty in a particular case, it is settled law that the Court must adopt that construction of the statute for if two reasonable constructions are possible; the Court must lean for a more lenient one.

The NDPS Act has been enacted to consolidate and amend existing laws relating to narcotic drugs, strengthening the existing controls over drug abuse and enhance penalty particularly for trafficking of drugs, besides for exercise of effective control over psychotropic substances and to make provisions for implementation of international conventions relating to narcotic drugs and psychotropic substances to which India became a party. This is a Special Penal Statue with stringent provisions in furtherance of its aims and objects.

The Bench found substantial force in the submissions of Shri Sharma that the  Single Judge could not have assumed that 70 quintals of seized opium poppy shall be commercial quantity. In our opinion, the aforesaid assumption of fact militates with the provisions of the NDPS Act and runs contrary to the basic tenets of interpretation of penal statutes as settled by the Privy Council and Hon'ble Supreme Court quoted hereinabove. 

As a matter of fact, the right to default bail under section 167(2) of the Cr.P.C. is an indefeasible right, the Court further remarked. 

At the outset the Court thus observed that 7000 kgs of opium can neither be termed as “small” nor “commercial” quantity, but should be treated to fall within the net of residuary clause; section 18(c) governing “any other case” r/w Note-3 of the Notification dated October 19, 2021 for availing the benefit of default bail u/S 167 Cr.P.C. 

In view of such observations, the reference was accordingly answered.