JUDGMENT
L. Rath, J.
1. This application made by the petitioner Under Section 439 of the Code of Criminal Procedure is before us by a way of reference made by a learned single Judge of this Court because of apparent difference between two judgments by two different single Benches as regards applicability of Section 27(b) read with Explanation (2) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’) when the question of bail of a person arrested in connection with offence under the Act is concerned. The petitioner was arrested on 26-10-1992 with Ganja of about 30grams kept in 30 packets, two Chillams, three small clothes and cash of Rs. 181.50 paise representing the sale proceeds. His application for bail having been rejected by the Sessions Judge, he has filed the present application for enlargement on bail. Before the learned Single Judge contention was advanced that the quantity of Ganja recovered from the petitioner being small, as notified by the Government in accordance with Explanation (1) to Section 27, he is entitled to bail. Since two decisions were cited before the learned Single Judge, one (1992) 5 OCR 647 Bharat Chhula Singh alias Chual Singh v. State of Orissa) where the accused was released on bail applying Section 27 of the Act and the other (1993) 6 OCR 117(State of Orissa v. Ganapati Mohanty) where Section 27 was decided not to be attracted at the time of consideration of bail for offences alleged to have been committed under the Act, he referred the matter to the Division Bench.
2. Section 27 of the Act occurs in Chapter IV dealing with offences and penalties. Sections 15 to 32 of the Chapter deal with different punishments to be meted out in respect of different offences. Section 27 consists of two parts. The first part deals inter alia with possession of small quantity of narcotic drug or psychotropic substance which is proved to be intended for personal consumption of the accused not intended for sale or distribution, and the second part is that the onus of proving that the material in question was not intended for sale or distribution but For personal consumption is upon the accused. Explanation (1) to the Section provides that what would be “small quantity” to earn the benefit of the Section would be as notified by the Central Government in the official gazette.
3. A plain reading of Section 27 makes it abundantly clear that the benefit of the provision is available only at a conclusion of a trial and that too when the ingredients have been “proved” by the accused. This section only prescribes the sentence to be imposed when the accused is able to substantiate his plea that the quantity of material found in his possession was small as notified and that it was not intended for sale or distribution but for personal consumption. No punishment becomes imposable until the trial of the case is over, which obviously means that the accused can prove the exceptions during the trial so as to earn a lesser sentence. Section 27 relates to a stage till after conclusion of the trial when consideration of the sentence to be imposed is made and hence has no application at the stage when the accused moves for bail during the investigation or the trial.
4. Section 37(1)(b) is the specific provision regarding consideration to be made by the Court while deciding an application for bail made by an accused. The section has the overriding effect starting with a non obstante Clause and provides that no person accused of an offence is to be released on bait unless the Public Prosecutor has been heard to oppose the application for bail, and the Court is satisfied of the existence of reasonable grounds to hold the accused not guilty of the offence and also that if released he is not likely to commit any offence while on bail. Unless these conditions are satisfied, an accused shall not be released on bail. It has now been conclusively held by the Apex Court in AIR 1991 SC 558 (Narcotic Control Bureau v. Kishan Lal) that the provisions of Section 37(1)(b) are not only mandatory but also controls the power of the High Court Under Section 439, CrPC and hence even this Court cannot release a person accused under the Act for an offence punishable with imprisonment of five years or more unless the satisfaction as required Under Section 37(1)(b) is reached. Taking that view of the matter we have no hesitation to hold that merely because a person is accused of possession of “small quantity” of narcotic drug or psychotropic substance, he does not automatically become entitled to be released on bail irrespective of the consideration Under Section 37(1)(b). While the dicision in (1993) 6 OCR T17 has adopted this view, we find that in (1992) 5 OCR 647 the learned Judge applied the provisions of Section 27 to release the accused on bail observing, so far as Section 37(1)(b) is concerned, that the quantity of ganja seized was extremely small in that case and no material had been produced to show that the accused was selling the ganja or that the seized ganja was meant for sale and an affidavit had also been filed by the brother of the accused that the seized ganja was meant for Puja in “Trinath Mela” in the house of the petitioner’s family. Though application of Section 27 of the Act was inapposite, and since evert under that section the prosecution could not have been found fault with for having not produced materials to show that the accused was selling ganja or that the seized ganja was meant for sale as that onus was on the accused, yet reading the decision it does not appear that any contrary view has been taken1 to that taken in (1993) 6 OCR 11.7, of the view taken by us. In effect, the learned Judge reached the conclusion because of the specific facts of that case that the ingredients of Section 37(1)(b) had been satisfied of there being no prima facie case against the accused and it could also be said that the learned Judge was satisfied of there being no likelihood that the accused if released an bail would commit any offence.
5. The mutual effect of Section 37(1)(b) and Section 27 of the Act juxtaposed together being thus explained, it however becomes necessar to observe that while considering the application for bail, the discretion: of the Court to reach conclusions of the accused being prima facie not guilty of an offence punishable with imprisonment for five years or more and that if released, is not likely to commit any offence in view of cogent materials brought on record is not lettered. Such material could also be the “Small quantity” of the seizure strong credible circumstances of the seized article being not intended for sale but for personal consumption, and materials that the accused shall not abuse his release on bail by resorting to further commission of offences. In the context, it may be conceded that the requirement of Section 37(1)(b)(ii) that the satisfaction of the Court that the accused if released would not commit ‘any’ offence while on bail really means that the accused would not commit ‘any such’ offences while on bail. The word ‘any’ in the context, cannot have the expansive meaning of any offence whatsoever as that would be making an impossible demand on the judgment of the Court. But the Court may upon very strong circumstances reach a prima facie conclusion that the accused, if released on bail, would not resort to similar kind of activities. Indeed, even to reach such a prima facie ‘conclusion, the materials and circumstances may be extremely rare and far and few, but if the Court is genuinely satisfied on such materials of the requirement of Section 37(1)(b) of having been met, its direction for release of the accused on bail would not be by application of Section 27 but because of the conclusion reached that the application for bail does not warrant rejection because of the prohibition of the overriding section. It has however to be re-emphasised that no such conclusion can be reached merely because the amount seized is small quantity or pseudo materials are brought in to masquerade as genuine evidence as satisfying the requirements of Section 37(1)(b).
6. So far as the present case is concerned, the petitioner has been accused of offence Under Section 27(b) of the Act which is punishable with imprisonment which may extend to five years. It has been explained in a judgment of this Court reported in (1991) 4 OCR 437 (Soodha Somana and Anr. v. State) that the provisions of Section 37(1)(b) also apply to offences which are punishable with imprisonment up to five years. The learned Sessions Judge found that no circumstances had been placed before him by the petitioner to show that the seized ganja had been meant for his personal consumption. The ganja had in fact been kept in 30 separate packets and cash of the sale proceeds had also been seized. No conclusion can hence be reached that the petitioner is prima facie not guilty of the offence. That apart, there was also no material to hold that the petitioner if released would not commit any offence.
7. In that view of the matter, we are satisfied that no case for bail is made out. The application is dismissed.
R.K. Patra, J.
8. I agree.