Kumar Murgan v. The State Of A.P

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO CRIMINAL PETITION NO.3744 OF 2017 ORDER:

Petitioners/ A-1 to A-3 seek for regular bail in Crime No.23 of 2017 of Tuni Police Station, East Godavari District wherein they allegedly committed offence under Section 8 (c) r/ w 20(b)(ii)(c ) of the N.D.P.S. Act.

The case of the prosecution is that on 28.02.2017 at about 3 p.m. at Kottam centre on NH-16 road, Tuni, East Godavari District, A.P. the Excise Circle Inspector arrested the petitioners/ A-1 to A-3 and recovered from them 50 Kgs. of ganja which is a commercial quantity.

Pleading for bail, the learned counsel for petitioners would submit that the contraband allegedly seized from the possession of petitioners is since 50 Kgs., on apportionment, the possession of each accused would be less than commercial quantity and considering the said fact, bail may be granted to them. Learned counsel cited a judgment in Crl..P.No.12358 of 2016, dt.26.08.2016 of this Court.

Opposing the bail, learned Addl.P.P. would submit that a commercial quantity of ganja of 50 Kgs. was seized from the possession of the accused who belong to Tamil Nadu State and investigation is pending and only eight witnesses are examined

and report from Chemical Examiner is still awaited and considering the same, bail may be refused. He would further submit that the apportionment concept was not followed in other judgments. He referred common order in Crl..P.Nos.2052 and 2056 of 2017, dt.15.03.2017 of this Court. As can be seen Section 37 (b) of NDPS Act is an interdict for granting bail in NDPS cases. As per said provision, if a person is an accused of an offence punishable under Sections 19, 24 or 27-A and also for offences involving commercial quantity, he shall not be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

The offences alleged against the petitioners/ A-1 to A-3 are not under Sections 19, 24 and 27-A of NDPS Act, but, under Section 8 (c) r/ w 20(b)(ii)(c) of NDPS Act. Be that it may, commercial quantity is concerned, as per SO 527(E), dated 16.07.1996 issued by the Ministry of Finance Department of Revenue, possession of 20 kgs. ganja is notified as commercial quantity.

In the instant case, the police recovered 50 kgs. of ganja from the possession of three accused. The mediators' report dt.28.02.2017 would show that all the three accused were found at Kottam Centre on NH 16 road, Tuni Town and on seeing the police, they tried to skulk away and the police intercepted

them and searched their bags in the presence of mediators and found 20 kgs. gana in the bag of A-1, 20 kgs. ganja in the bag of A-2 and 10 kgs. ganja in the bag of A-3. Be that as it may, the submission of the learned counsel is that if apportioned among 3 accused, the content per accused comes to less than commercial quantity and thereby the rub of Section 37 of the Act will have no application. The argument is though mathematically correct, logically and legally not. When an offence of this nature is collectively committed by a number of accused and they were intercepted and caught at a time and at one place by the police, the apportionment of the contraband seized among accused is impermissible. It should be noted that NDPS Act does not contain any express provision permitting such apportionment.

Therefore, there is no legal sanction behind it. While committing the offence collectively, the accused may, for convenience sake, carry the contraband individually. In such circumstances, the offence has to be viewed as a single offence but not as different offences. In Crl.M.P.No.12358 of 2016 a learned single Judge of this Court, no doubt, applied the concept of apportionment. However, in another case, in common order in Crl.M.P.Nos.2052 and 2056 of 2017 dated 15.03.2017 the said concept was not followed by another learned single Judge.

sanction, such an appointment is impermissible, in my considered view.

In the instant case, as already stated, 50 kgs. of contraband ganja was found in the collective possession of the petitioners and since the contraband is of commercial quantity and the investigation is still pending and in view of strong prima facie material against the accused, it is not a fit case to grant bail to them.

Accordingly, the bail application is dismissed. ________________________ U.DURGA PRASAD RAO, J DATE:12-06-2017 Ccm

THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO CRIMINAL PETITION NO.3744 OF 2017 DATE:12.06.2017 ccm