Illegal Cultivation Of Opium Poppy An Offence U/S 18(c) NDPS Act; Rigour On Default Bail U/S 36A Not Attracted: MP High Court

The division bench comprising Justice Rohit Arya and Justice Milind Ramesh Phadke further held that considering the punishment assigned under Section 18(c) of the NDPS Act, the accused concerned would be eligible for default bail under Section 167(2)(a)(ii) CrPC-

As held above, the offence of cultivation of opium poppy falls within the net of Section 18(c) which is a residuary clause providing rigorous imprisonment which may extend to 10 years and with fine which may extend to Rs.One Lac…In the case in hand, since punishment of imprisonment upto 10 years is provided for under section 18(c) of the NDPS Act, the aforesaid provision of S.36A(4) shall not be attracted in the facts and circumstances of the case. Consequently, the petitioners are entitled to default bail under section 167(2)(a)(ii) of the Cr.P.C if Challan was not filed within 60 days.

Facts of the case were that the Petitioners were accused of offences punishable under Sections 8, 16 NDPS Act. As per the prosecution story, they were illegally cultivating opium poppy on Government land. The investigating agency had seized 7,000 Kgs of contraband from the Petitioners/accused.

Since the investigating agency could not submit the challan/charge-sheet in the case of the Petitioners within 60 days of keeping them under custody, the Petitioners moved an application seeking default bail. However, their application was rejected by the lower court on the ground that the contraband seized from them was of commercial quantity and as per Section 36-A (4) NDPS Act, they were eligible for default bail only after 180 days of custody. Aggrieved, the Petitioners moved the Court to challenge the rejection of their application.

The Single bench of the Court, after hearing the arguments of both the parties, found it fit to refer the substantial questions of law involved in the case to be determined by the appropriate bench. The matter was eventually referred to a division bench of the Court.

The Petitioners submitted before the division bench that their case fell within the net of Section 18(3) NDPS Act as Note 3 of the Schedule appended to the Act had not laid down the small and commercial quantity for opium poppy. Hence, the assumption that 7,000 Kgs of opium poppy ought to be considered as commercial quantity was unsustainable in the eye of law. Thus, it was asserted that since their case falls within the ambit of Section 18(3) of the Act, wherein the punishment assigned is rigorous imprisonment is extendable to 10 years, they were eligible for default bail under Section 167(2)(a)(ii) CrPC.

Examining the submissions of parties and documents on record, the Court noted that since the NDPS Act is a penal statute, it had to be construed strictly-

It is the duty of the Court to give effect to the purpose - as expressed in clear and unambiguous language of the statute, and the Court is not permitted either to restrict or expand the meaning of the words used by the legislature which is in accord with the object of the statute. Besides, if reasonable and plain interpretation of a penal statute avoids penalty in a particular case, it is settled law that the Court must adopt that construction of the statute for if two reasonable constructions are possible, the Court must lean for more lenient one.

Scrutinizing the provisions under Section 18 NDPS Act, the Court opined that although the cultivation of poppy opium is a punishable offence, there is no corresponding entry of small quantity or commercial quantity in the Schedule. Therefore, the said offence would be covered under the residuary clause under Section 18(3) NDPS Act-

S.18 inter alia deals with punishment for contravention in relation to Poppy Straw (defined under section 2(xviii)) and opium (defined under section 2(xv)) of which small quantity / commercial quantity have been prescribed in the schedule as 1000 gms/50 kg and 25 gms/2.5 kg vide entry nos. 110 and 92 respectively. Although the cultivation of opium poppy is also made punishable, yet, there is no corresponding entry of small quantity or commercial quantity in the schedule…A plain reading of the said provision, in entirety, leads to the inevitable conclusion that activity of cultivation of opium poppy shall fall within the net of section 18(c) of the NDPS Act. It is further fortified by Note-3 appended to the schedule.

The Court further noted that its reasoning was fortified by Note-3 of the Schedule appended to the Act, whereby illegal cultivation of opium poppy would fall squarely under Section 18(3) of the Act-

Note-3 is part of the schedule categorically providing 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…Note-3 is inserted to ensure that for want of specification of small or commercial quantities in relation to cultivation of opium poppy, the offence of cultivation thereof in contravention of the Act does not go unaccounted for/unpunished and, therefore, is covered under Section 18(c).

After determining that illegal cultivation of opium poppy is a punishable offence under Section 18(3) of the Act, the Court went on to decide the question of default bail in the favor of the Petitioners-

In the case in hand, since punishment of imprisonment upto 10 years is provided for under section 18(c) of the NDPS Act, the aforesaid provision of S.36A(4) shall not be attracted in the facts and circumstances of the case. Consequently, the petitioners are entitled to default bail under section 167(2)(a)(ii) of the Cr.P.C if Challan was not filed within 60 days.

With the aforesaid observations, the Court held that the illegal cultivation of opium poppy would be punishable U/S 18(3) of the NDPS Act and considering the quantum of punishment under the said provision, the accused would be eligible for default bail after 60 days of custody if the investigating agency fails to submit the charge-sheet within that period. Accordingly, the reference was answered and the petition was sent back to be listed before appropriate bench to be decide the same.