1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 16 of 2008. Judgment reserved on: 03.07.2008. Date of Decision: July 9th, 2008. ____________________________________________________________ State of H.P. Petitioner. Versus Dile Ram. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Mr. J.S. Guleria, Law Officer. FdAor the respondent : Mr. Anup Chitkara, Advocate, vice Mr. Bhupinder Ahuja, Advocate. ______________________________________________________________ Surjnder Singh, J. This criminal revision petition has been filed by the State, against the order dated 14.9.2007, passed by the learned Special Judge, Mandi, whereby the respondent Dile Ram was enlarged on bail, in FIR No. 4 of 2007, registered in police station Aut, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short the `Act’ against the respondent for, allegedly having found in his possession 1 kgs.500 grams of charas. While granting the bail the learned Special Judge applied the ratio laid down by the Division Bench of this Court in Dharam Pal v. State of H.P. [Latest H.L.J (2007) 827], holding that it is the quantity of resin which is to be taken while considering the question of “small” or “commercial quantity”. Since the resin was found 35.63 % W/W in the sample sent for examination, as per the report of Forensic Science Laboratory, therefore, the quantity, which was recovered from the respondent did not fall within the purview of the “commercial quantity”. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Shri J.S. Guleria, learned Law Officer has vehemently argued that the quantity which was recovered from the possession of the respondent is a “commercial quantity” and the rigor of Section 37 of the Act would apply to this case. Since the learned Special Judge ignored the said provisions, as such, his order enlarging the respondent on bail is illegal. Contra, Shri Anup Chitkara, learned counsel for the respondent has disputed the maintainability of this petition on the ground that the order for granting the bail is an “interlocutory order” and it is not revisable. It is further contended that the learned Special Judge has rightly applied the ratio of Dharam Pal’s case supra, and held that the rigour of Section 37 of the Narcotic Drugs and Psychotropic Substances, Act does not apply to the case. Thus the order for the grant of bail is perfectly correct. I have given my thoughtful consideration to the rival contentions of the parties and have examined the record. The first question, which arises for determination is whether the order granting the bail is an “interlocutory order”? The answer is “yes”. As a matter of fact, the code does not define “interlocutory order”, but it obviously is an intermediate order made during the preliminary stage of an inquiry of trial. Section 397 (2) of the Code of Criminal Procedure debars the powers of revision conferred by sub section (1) of said section in relation to any interlocutory order, passed in any appeal, enquiry, trial or other proceedings. The purpose of sub section (2) of Section 397 is to keep such an order outside the purview of the power of revision so that the inquiry or trial may proceed without delay. “An interlocutory order” is one made or given during the progress of a case, but it does not finally disposed of the rights of the parties. If the order is merely a step-in-aid to adjudicate the rights, in that event it cannot be termed to be a final order. The expression `interlocutory order’ has been used in section 397(2) of the Code in a restricted sense. It denotes orders of a purely interim or 3 temporary nature which do not decide or touch the important rights or liabilities of the parties. In Dhola and others v. State [1975 Cr.L.J. 1274], the High Court of Rajsthan has held that the grant of bail by the Judicial Magistrate was an interlocutory order against which the revision is barred under the Code. This judgment was followed by the Division Bench of this Court in Joginder Singh v. State of Himachal Pradesh [Cr.M.P.(M) No.21 of 1974] decided on 20.3.1975. In Amar Nath and others v. State of Haryana [AIR1977 SC 2185] the apex Court observed that order summoning witnesses, adjourning cases, passing orders for bail, calling for the reports and such other steps-in-aid in pending proceeding may, no doubt be an interlocutory order against which no revision lie under Section 397(2) of the Code of Criminal Procedure. Therefore, there is no manner of doubt that the impugned order granting bail to the respondent is step-in- aid in the investigation of the case which does not decide the rights of the parties finally, therefore, it being an `interlocutory order’ cannot be assailed in a revision due to the specific bar imposed by Section 397(2) of Cr.P.C. The next question, is whether the Special Judge has ignored the provision of Section 37 of the Act, as such the bail of the respondent can be cancelled by exercising inherent powers under Section 482 of the Criminal Procedure code? On facts, the answer is “NO”. In the instant case the sample sent for analysis was 25 grams and was found having contained 35.62% W/W (weight in weight) resin, which means the entire quantity of the recovery stuff was not ‘Charas’. The respondent is alleged to have been found in possession of 1 Kgs. 500 grams of entire stuff and the rest is a neutral material. 4 In Dharam Pal v. State of H.P. [Latest HLJ (2007)827} the Division Bench of this court has held that it is the quantity of resin which is to be taken while considering the question of `small’ or `commercial quantity’. In E. Micheal Raj v. Intelligence Officer Narcotic Control Bureau [2008 Cr.L.J. 2250] the Supreme Court has held that when any narcotic drug or any psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment it is the content of narcotic drug and psychotropic substance which shall be taken into consideration. Therefore, the purity of the substance is not irrelevant. In the present case, the resin content, falls within the definition of `charas’ under the Act and it comes to 534.45 grams in the whole stuff recovered, which is more than the “small quantity” but less than the “commercial quantity” for which, at the best the respondent can be held guilty, if the prosecution is able to prove its case against him. In fact, the intention of legislature under the Amending Act of 2001 was to rationalize the sentence structure so as to ensure that while drug traffickers, who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalized sentence structure, the punishment would vary depending upon the quantity of offending material. Therefore, Section 37(1)(b) of the Act was also suitably amended in the year 2005 which came into force w.e.f. 2.10.2001, now Section 37 reads as under:- “37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also for offences 5 involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.” {Emphasis mine} In this case, since the quantity of the offending article was found to be less than the commercial, which is punishable under Section 20(B) of the Act and is not covered under the provisions of Section 37(1)(b) above, therefore the rigour of said provision shall not apply to his bail and the case of the respondent was rightly dealt with, under the general law of bail by the learned Special Judge. In my opinion, the learned Special Judge has not contravened the provisions of section 37(1)(b) of the Act, in any manner. Therefore, I do not find that the impugned order requires any interference, by invoking the inherent powers. Accordingly, the petition is dismissed. (Surinder Singh) Judge. July 9th, 2008. (Pds)