ORDER
Kuldip Chand Sood, J.
1. This order will dispose of these two petitions, titled as Manoj Kumar v. State of H. P. (Cr. M. P. M. No. 146 of 2002) and Shashi Kumar v. State of H. P. (Cr. M. P. (M) No. 147 of 2002) for the grant of bail. Both the petitions raise common question of law and facts.
2. It appears a case for offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“Drugs Act” for short) read with Section 34 of the Indian Penal Code was registered with Police Station, Parwanoo, District Solan, on 4-5-2001 in terms of FIR No. 58 of 2001.
3. Prosecution case appears to be that on 4-5-2001 Bus No. PB-11N-3818 of Punjab Roadways Corporation was intercepted by ASI Jagdish Kumar at 11.30 a.m. in Sector VI at Parwanoo. The bus was bound to Bhatinda from Shimla. The bus was checked. There were 10-12 passengers. Accused Manoj Kumar was sitting on seat No. 19. He had a pull over on his lap. When the said pull over was checked, it was found that there was some bag in the arm of the pull over. The bag, wrapped in polythene, was searched. Charas in the shape of sticks was recovered from the bag. The Charas was weighed and found to be 850 grams. Samples were separately drawn and other formalities completed. The conductor of the bus informed the Investigating Officer that ticket for Manoj Kumar was purchased by other accused Shashi Kumar and accordingly Shashi Kurnar was roped in by resorting to Section 34 of the Indian Penal Code.
4. Case of the petitioners was that they were innocent. No Charas was recovered from Manoj Kumar. Accused Shashi had nothing to do with the Charas recovered. Bail is sought mainly on the ground that quantity of Charas recovered was less than 1000 grams, and, therefore, in view of the amended provision of the Drugs Act, petitioners are entitled to bail.
5. The amendment of the Drugs Act by amended Act No. 9 of 2001, amongst others, sought to rationalise the sentence structure to ensure that while drug traffickers who traffic in large quantity of drugs are punished with deterrent sentences, the addicts and those who commit no serious offences are sentenced to lesser punishments.
6. Section 20 of the.Act provides for punishment for contravention in relation to cultivation production, manufactures, possession etc. of the cannabis plant and canna-bis (Charas) respectively, records :
Section 20 reads :
“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; or
(b) produces, manufactures, possesses sells, purchases, transporters, 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 six months, 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 and 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.]
7. A perusal of Clause (B) of Section 20 of the Act shows that a person who is in, possession of quantity less than the commercial quantity but greater than small quantity, is .liable to be sentenced to suffer rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.
8. Section 2 (viia) of the Drugs Act defines commercial quantity to mean any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Similarly Section 2(xxiiia) defines “Small quantity” to mean any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.
9. The Central Government by a notification dated 19th October, 2001, in supersession to the previous notifications, specified the small quantity and commercial quantity for the purpose of these clauses. The relevant entry No. 23 of the table pertains to cannabis and cannabis resin i.e. Charas, Hashish extracts and tinctures of cannabis. The small quantity is specified to be 100 grams and commercial quantity is specified to be one kilogram.
10. Petitioner Manoj Kumar, according to the case of the prosecution, was found in possession of 850 grams of Charas. Thus, under Section 20(B) of the Act, he was involved in carrying Charas, which was lesser than the commercial quantity but higher than the small quantity and is liable to be punished, in case of his conviction to rigorous imprisonment for a term which may extend to ten years and a fine which may extend to one lakh rupees.
11. Rigor of Section 37, relating to bail for offences under the Act, has also been relaxed by the amendment, so far possession of small and less than commercial quantity of contraband is concerned.
12. Perusal of Clause (b) of Section 37 shows that a person accused for an offence under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity cannot be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application and 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.
13. In the present case, the quantity involved is less than the commercial quantity, therefore, rigor of Clause ‘b’ of Sub-section (1) of Section 37 will not be applicable and the petitioners are liable to be dealt with in accordance with the provisions of the Code of Criminal Procedure. ‘
14. The bail petitions are opposed on the grounds that the petitioner belong to Punjab and they may flee from Justice, if released on bail. So far question of fleeing from the justice is concerned, appropriate directions can be issued to ensure their presence during the course of trial.
15. Taking into consideration the entirety of the circumstances, the quantity of the contraband and the fact that both the petitioners are in custody since 4-5-2001, I allow these petitions and direct that petitioner Manoj Kumar be released on his furnishing bonds in the amount of Rs. Three lacs with two sureties each of the like amount, one of which should be local resident of Solan District and Shashi Kumar be released on his furnishing bonds in the amount of Rs. Two lacs with two sureties each of the like amount, one of which should be local resident of Solan District to the satisfaction of learned Sessions Judge/Special Judge, Solan.
16. The bail shall be subject to the conditions that the petitioners :
a) shall not influence the witnesses or otherwise interfere with the investigation;
b) shall make themselves present before the Station House Officer, Patiala, on every alternate days;
c) shall make themselves available as and when required to do so by either the police or the Court;
d) shall be present on each date of hearing before the trial Court.
17. The Investigating Officer shall be entitled to pray for cancellation of the bail in case any of these conditions is violated by the petitioners. Copy of this order shall be sent by the Registry to Station House Officer, Patiala, who shall send fortnightly report about the compliance of the direction (b) to the Station House Officer, Parwanoo.
18. The petitions stand disposed of. Copy Dasti on usual charges.