- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the State.
(2.) LEARNED counsel appearing for the petitioner submits that the petitioner and other 11 persons have been alleged to have grown poppy plant over 3 -4 acres of land and as such, a case was registered under Sections 15, 18, 27 and 22 of the Narcotic Drugs and Psychotropic Substances Act. In course of investigation, petitioner was arrested but the police failed to submit charge -sheet within 60 days of petitioner being remanded to jail custody and as such, the petitioner is entitled to bail in terms of the provision as contained in Section 167(2) of the Code of Criminal Procedure but the learned Sessions Judge refused to enlarge the petitioner on bail on the premise that offence alleged comes within the ambit of Section 18(b) of the Narcotic Drugs and Psychotropic Substances Act prescribing sentence for life but that observation made by learned Sessions Judge is contrary to stipulation made under the note appended to a notification issued by the Central Government, vide S.O.1055(E) dated 19.10.2001 stating therein that off9nce relating to cultivation of opium poppy falls under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act which prescribes sentence upto 10 years and hence, the petitioner was entitled to bail as charge -sheet was not submitted within the stipulated period of 60 days. Having heard learned counsel for the petitioner and on perusal of the record, I do find that learned Sessions Judge negated the submission advanced on behalf of the petitioner that offence alleged in view of the note appended to a notification bearing no. S.O.1055(E) dated 19.10.2001 falls within the ambit of Section 13(c) of the Narcotic Drugs and Psychotropic Substances Act on the plea that Central Government came with the said notification on being empowered to declare the small quantity and the commercial quantity with respect to Narcotic Drugs and Psychotropic Substance only and the said notification never stipulates about any authorisation to the Central Government to determine the small quantity and the commercial quantity with respect to cultivation of the opium poppy. This necessarily needs to examine the provision as contained in Section 18 which reads as follows: - Section 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 six months, 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.
(3.) FROM its perusal it does appear that Section 18 of the Narcotic Drugs and Psychotropic Substance~ Act deals with punishment in case of cultivation of the opium poppy in contravention of any provision of this Act or Rules and at the same time it does also speak about the punishment in case of manufacture, possession, sale, purchase, transport, etc. of the opium in contravention of the provision of the Act or rules. Further subsections (a), (b) and (c) of Section 18 stipulates about the quantum of sentence relating to contravention of the provisions of law in respect to manufacture, production, possession, sale etc. of the opium depending upon the quantity of the opium and said sub -sections (a), (b) or (c) confines to that only and it never relates to contravention with respect to cultivation of opium poppy. Perhaps under this situation, it has been noted under the notification, bearing no. S.O.1055(E) dated 19.10.2001 that 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 clause (c) of Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and that being the situation, the police was required to submit charge -sheet within 60 days, which, according to the case of the petitioner, has not been done and as such, the petitioner is entitled to bail in terms of Section 167(2) of the Code of Criminal Procedure.;