/ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.Revision N0. 58 ‘ l 2011 Shiv Kumar Pandey, S/ o late Ghasiram, APPLICANT C1” gw’) aged 64 years, resident of village Nahna Jona, P.S. Pathariya, Dist. Bilaspur u a ‘T uvu u :u ~Hx"\'Wé¢&/47 (CG) Wuhhd N Hm mt @ ., } ”,Q’ERSUS NON-APPLICANT State of Chhattisgarh, through its Police Station, Pathariya, Dist. Bilaspur (C.G.) REVISION UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE w @ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Revision No. 58112011 Shri Sunil Otwani, counsel for the applicant. Shri Sandeep Yadav, Dy.G.A. for the State. Sinqie Bench: Hon’bfe Shri Prashant Kumar Mishra, J. ORDER (R1 1 .201 1) This crimina! revision under Section 397 read with Section 401 of Cr.P.C. has been directed against the order dated 30/09/2011 passed by the iearned Special Judge, Biiaspur in Speciai Criminai Case No.34/2011 by which applicant’s prayer for his release on bail under Section 167 (2) of Cr.P.C. henceforth ‘the Code‘ has been rejected by the trial court. (2) Allegation against the present applicant is of commission of offence under Section 20 (a) (i) and under Section 20 (b) (ii) (A) of NDPS Act, henceforth ‘the Act’, for being found to be in possession of 21 numbers of cannabis plants and 450 gms of contraband ganja. (3) Shorn of unnecessary details, this court would refer to the relevant facts only. Applicant was arrested on 30/07/2011 and was presented before the court on 31/07/2011. Charge sheet was submitted on 29/09/2011 i.e. on 61“ day after his arrest. As the charge sheet was not submitted within 60 days the applicant moved an application under Section 167 (2) of Cr.P.C. inter-alia submitting that the maximum sentence provided for the offences with which the applicant has been 2 charged is imprisonment up to 10 years, therefore on the failure of the prosecution to submit charge sheet within 60 days he is entitled to be released on bail. 1(4) Learned Special Judge rejected the contention on two counts; ifirstly the offence under Section 20 (a) carries punishment of V l l APPLICANT Shiv Kumar Pandey (In Jail) Versus NON-APPLICANT State of Chhattisgarh Appearance: J2, @ imprisonment for a period which may extend to 1O years and secondiy under Section 36 A (4) of the Act charge sheet can be submitted within 180 days. For invoking Section 36 A (4) of the Act the triai court has considered the weight of the cannabis plant. (5) Learned counsei for the applicant has argued that neither Section 36 A (4) of the Act is attracted in the present case nor Section 167 (2) (a) (i) of the Code is applicable and the impugned order deserves to be set aside. (6) Learned State counsel has supported the impugned order. (7) Section 36 A (4) of the Act reads thus: “36 A (4) In respect of persons accused of an offence punishable under section>19 or section 24 or section 27 A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to "one hundred and eighty days. Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” (8) On bare perusal of the above quoted provision it would be apparent that the said provision is attracted only when the accused is charged for offence under Section 19 or Section 24 or Section 27 (A) or for offence involving commercial quantity. However in the present case the applicant is charged with offence under Section 20 (a) for being found l in possession of cannabis plant and under Section 20 (b) (i0 (A) for being l found in possession of 450 gms of ganja. The concept of more severe ‘ punishment has been provided when the contravention relates to Section . 20 (b) of the Act and not concerning cultivation of cannabis plants as ‘ rovided under Section 20 (a) of the Act. The dry ganja seized from the applicant is only 450 gms and is not a commercial quantity. Thus, on both the counts the provisions of Section 36 A (4) is not attracted and the impugned order on this count appears to be incorrect. (9) This court shall now deal with the issue as to when the punishment under Section 20 (a) of the Act is imprisonment for a term which may extend to 1O years the prosecution would be entitled to detain a person without tiling of charge sheet for a period of 60 days or for a period of 90 days. While dealing with a similar case in the matter of Ramesh Goutam Vs. State of Chhattisgarh reported in 2010 (4) Crimes 709. this court has already taken a view that when a person is charged for committing offence under Section 20 (b) (ii) (B) of the Act providing punishment of imprisonment up to 1O years, the prosecution is required to complete the investigation within 60 days and in case investigation is not completed and charge sheet is not med the accused is entitled to be released on bail under Section 167 (2) (a) (ii) of Cr.P.C. ln the present case also offence under Section 20 (a) carries punishment of imprisonment up to 10 years, therefore the said judgment of Ramesh Gautam (supra) is squarely applicable and on this count also the impugned judgment cannot be sustained. (10) In the result, the revision petition is allowed and consequently the application under Section 167 (2) (a) (ii) of Cr.P.C. also stands allowed. (1 1) The applicant shall be released on bail on his furnishing a personal bond of Rs. 1 lakh along with one local surety for the like amount to the satisfaction of the trial court for his appearance before the concerned court on all dates of hearing. Prashant Kuma‘r Mishr at Judge ,3/ Sill/—