Kuna@Sri Rama Krushna Jena Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2024)

Kuna@Sri Rama Krushna Jena Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2024)

What the court decided

AI extract

Outcome

Liberty to surrender before the Court below on or before 15.05.2024 and move appropriate applications for grant of bail and for discharge, and to raise therein the points regarding classification of the charge under Section 18(c) versus Section 18(a) of the N.D.P.S. Act; no action till the surrender date.

Issue for consideration

Whether the criminal prosecution of the Petitioner under Section 18(c) of the N.D.P.S. Act ought to be quashed, given that even taking the allegations and materials on record at face value the charges would, on counsel's submission, at best constitute an offence under Section 18(a), since the alleged recovery of 990 gms. of Opium is less than the commercial quantity. +1 more

Court's answer

This Court is not inclined to interfere with the criminal prosecution at this stage, since the final P.R. has already been filed and the Petitioner's contention could only be tested at the appropriate stage by the trial Court.

Ratio / Principle

Liberty is granted to the Petitioner to raise the points advanced in the petition (the classification of the charge under Section 18(c) versus Section 18(a) of the N.D.P.S. Act in view of the allegedly sub-commercial quantity recovered) before the Court below by moving an appropriate application after surrendering to the jurisdiction of that Court.

Key takeaways

In line with counsel's undertaking (on instruction) that the client would appear before the Court below on or before 15.05.2024 and move appropriate applications for grant of bail and for his discharge, the Court directed the Petitioner to surrender before the Court below on or before 15.05.2024 and avail all remedy under law, with no action ('no-conceive action') till then.ratio¶32
The CRLMC is disposed of with the aforementioned liberty.ratio¶34

Detailed headnote1 paragraphs

CRLMC No. 628 of 2024, High Court of Orissa at Cuttack (Justice Sibo Sankar Mishra), order dated 09.04.2024: Kuna @ Sri Rama Krushna Jena sought quashing of his criminal prosecution initiated under Section 18(c) of the N.D.P.S. Act; the charge-sheet had been filed and the Petitioner stood shown as absconder. Learned counsel submitted that, even taking the allegations at face value, the charges were not made out under Section 18(c) and amounted at best to Section 18(a), as the alleged recovery of 990 gms. of Opium was less than the commercial quantity, relying on the judgment of the High Court of Madhya Pradesh in Kalia Mallah and others vs. The State of Madhya Pradesh through Police Station, Sabalgarh (on the Schedule's small/commercial quantities for Poppy Straw and opium and on Section 18(c) being a residuary clause). The Court held that the final P.R. had already been filed and the contention could be tested only by the trial Court at the appropriate stage, declined to interfere, and granted liberty to raise these points before the Court below by moving an appropriate application after surrendering. Counsel, on instruction, committed the client to appear on or before 15.05.2024 to seek bail and discharge; the Court directed surrender on or before 15.05.2024, with no action till then, and disposed of the CRLMC with that liberty.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No. 628 OF 2024

Kuna @ Sri Rama Krushna Jena

Petitioner(s)

Mr. G. P. Jena, Advocate

-versus-

State of Odisha

…. Opposite Party(s)

Mr. B. K. Ragada, AGA

CORAM: JUSTICE SIBO SANKAR MISHRA

ORDER

09.04.2024

Order No.

01.

Heard.

In the present petition, the Petitioner is seeking quashing of

the criminal prosecution initiated against him by the police under Section 18(c) of the N.D.P.S. Act. After investigation, charge-sheet has already been filed. However, the Petitioner has not surrendered to the jurisdictional Court and has been shown as absconder.

Learned counsel for the Petitioner submits that even if the allegations and materials available on record has taken at its face value, the charges under Section 18(c) of the N.D.P.S. Act will not made out against the Petitioner, at best it could be an offence under Section 18(a) of the N.D.P.S. Act. He further submits that 990 gms.

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of Opium alleged to have been recovered which is less than the commercial quantity, He relies upon the judgment of the High Court of Madhya Pradesh in the case of Kalia Mallah and others

vs. The State of Madhya Pradesh through Police Station,

Sabalgarh . The relevant part of the said judgment reads as under:-

<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.

Section 18(a) provides for punishment where contravention involves small quantity and section 18(b) provides for punishment where contravention involves commercial quantity.

Section 18(c) is a residuary clause and provides that in any other case the imprisonment shall extend to ten years and with fine which may extend to one lac rupees. 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.=

The final P.R. has already been filed in the present case

and the contention of the Petitioner could be only tested at the

appropriate stage by the trial Court. Therefore, this Court is not inclined to interfere with the matter at this stage. However, liberty

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is granted to the Petitioner to raise the aforementioned points before

the Court below by moving appropriate application after surrendering to the jurisdiction of that Court.

Learned counsel for the Petitioner on instruction from his client submits that his client would be appearing before the Court below on or before 15.05.2024 and move appropriate application before the Court below for grant of bail as well as discharging him from the case. Let the Petitioner surrenders before the Court below on or before 15.05.2024 and avail all remedy under law. Till then

no-conceive action.

The CRLMC is disposed of with aforementioned liberty.

Swarna

Signature Not Verified

Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 10-Apr-2024 12:24:07

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