State of Orissa Vs. Ganapati Mohanty - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - this stand has been taken by the learned counsel, because the impugned order of the learned sessions judge clearly shows that the requirements of section 37(1)(b) had not been borne in mind.orderthe chief justice1. a suo motu proceeding was started on coming to the notice of this court that a person accused of an offence under the narcotic drugs and psychotropic substances act (hereinaftar, 'the act') had been released on bail by the sessions judge, sundargarh in criminal misc. case no. 138/92 in exercise of power under section 439 criminal procedure code by relying on a decision of this court in bidyadhar dalai v. state, (1992) 5 ocr 31, in which this court in exercise of power under section 482, cr pc (which power is not available to a sessions judge1) had quashed the detention, because of which the requirements of section 37 of the act were not borne in mind. that judgment made it clear in paragraph 15 that the accused persons were not being released on bail in exercise of power under section 439, cr pc. the learned sessions judge, however, did so without adverting to the requirements of section 37 of the act, which appeared prima facie to be illegal,.2. shri panigrahi has appeared for the opposite party and-the only submission made by him is that the present case attracted section 27 of the act, because of which the offence would have been punishable with imprisonment upto a maximum period of one year so, the. requirements of section 37(1)(b) of the act are not to be complied with before the opposite party could be released on bail. this stand has been taken by the learned counsel, because the impugned order of the learned sessions judge clearly shows that the requirements of section 37(1)(b) had not been borne in mind.3. the submission relating to possession of 'small quantity' has been taken, as the article seized from the possession of the accused were ganja powder, leaves, buds etc. and had weighed 250 grams. as per notification no. s. o. 827 (e) dated november 14, 1985, ganja upto 500 grams would be regarded as of 'small quantity' for the purpose of section 27 of the act. so. shri panigrahi is right in contending that the present was a case of 'small quantity'.4. the important question is whether in a case of small quantity, the requirements of section 37 can be said to be non-applicable. from what is being stated later, it would be clear that this is not so.5. the reason for the aforesaid view is that section 27 is really not punishing section. the same is, in so far as illegal possession of the articles in question is concerned. section 20(b), which visualises punishment, if the case were to attract sub-clause (i), upto five years imprisonment (and if sub-clause (ii), upto 20 years), which would undoubtedly bring into operation section 37(1)(b), because that applies to cases of offences punishable with a term of imprisonment of five years or more. what section 27 visualises is that 'if it is proved' that the 'small quantity' of the article in question was intended for personal consumption and not for sale etc., the accused notwithstanding anything contained if) chapter iv (in which chapter section 27 appears, so also section 20), shall be punishable with a term which may extend to one year if clause (a) were to be attracted, and in other case upto six months. it is apparent that the question of applying section 27 of the act would arise only during trial, and really after the accused has otherwise been found guilty. this is so because, for the case to come within the fold of section 27, the accused has to prove that the article in question had been intended for his personal consumption and not for sale etc. the accused shall be able to prove this only during the course of trial, and not at any time preceding it. so, even if a case were ultimately to attract the operation of section 27 of the act, at the stage of considering the question of release of the accused on bail, this section is irrelevant ; and the case has to be decided on the basis of the section which makes the offence punishable, which, in the present case, was section 20(b), as already noted, which attracts the rigour of section 37(1)(b).6. the aforesaid view has been taken by this court in a number of cases, of which reference may be made to : (1) criminal misc. case no. 1422/92 disposed of on 1-10-1992, in which a learned single judge of this court held that section 37 was required to be complied with on a submission being made that the recovery being of 50 grams of ganja, the same was of '-small quantity' bringing into operation of section 27 of the act, by pointing out that section 27 is not a 'charging section (sic. 'punishing section'), but is one, of which note has to be taken at the time of awarding punishment at the conclusion of the trial, and (2) criminal misc. case no. 2001/92, which case could could under section 27 of the act the petition being withdrawn on 23-12-1992 apparently because the offence could not have avoided the rigour of section 37 of the act merely because of the quantity being small.7. shri panigrahi lastly refers to narcotics control bureau v. krishan lal, air 1991 sc 558, in which it was held that the high court was required to bear in mind, while dealing with the prayer for release on bail under section 439, cr pc, relating to an offence covered by the act, that limitations imposed by section 37 are to be borne in mind which had not been done. despite this, the release of the accused on bail by the high court was not cancelled, as would appear from paragraph 8 of the judgment. the learned counsel submits that the same view may be taken in the present case. i have not felt persuaded to do so, because reference to paragraph 8 of the aforesaid judgment would show that the narcotics control bureau itself had not pressed for cancellation of the bail, perhaps because it was more interested in getting the law on this subject propounded by the apex court. as the decision in the aforesaid case had been rendered in january, 1991 and was reported in the march issue of the all india reporter, 1991 and as in the present case the order of release on bail by the sessions judge in exercise of power under section 439, cr pc was passed on 20-8-1992 without bearing in mind the requirements of section 37(l)(b) of the act, it would be grossly unfair to the prosecution, indeed to the larger public interest to serve which the act has been enected, if a palpably illegal order were not set aside.8. the order of bail granted by the learned sessions judge is, therefore, set aside with the result that the bail granted to the accused stands cancelled who shall surrender forthwith.9. before parting, it is stated that the present seems to be a fit case where some administrative action against the learned sessions judge is merited in view of his palpably illegal order. this may be brought to the notice of the hon'ble chief justice on the administrative side.

Judgment:
ORDER

The Chief Justice

1. A suo motu proceeding was started on coming to the notice of this Court that a person accused of an offence under the Narcotic Drugs and Psychotropic Substances Act (hereinaftar, 'the Act') had been released on bail by the Sessions Judge, Sundargarh in Criminal Misc. Case No. 138/92 in exercise of power Under Section 439 Criminal Procedure Code by relying on a decision of this Court in Bidyadhar Dalai v. State, (1992) 5 OCR 31, in which this Court in exercise of power Under Section 482, Cr PC (which power is not available to a Sessions Judge1) had quashed the detention, because of which the requirements of Section 37 of the Act were not borne in mind. That judgment made it clear in paragraph 15 that the accused persons were not being released on bail in exercise of power Under Section 439, Cr PC. The learned Sessions Judge, however, did so without adverting to the requirements of Section 37 of the Act, which appeared prima facie to be illegal,.

2. Shri Panigrahi has appeared for the opposite party and-the only submission made by him is that the present case attracted Section 27 of the Act, because of which the offence would have been punishable with imprisonment upto a maximum period of one year so, the. requirements of Section 37(1)(b) of the Act are not to be complied with before the opposite party could be released on bail. This stand has been taken by the learned counsel, because the impugned order of the learned Sessions Judge clearly shows that the requirements of Section 37(1)(b) had not been borne in mind.

3. The submission relating to possession of 'small quantity' has been taken, as the article seized from the possession of the accused were Ganja powder, leaves, buds etc. and had weighed 250 grams. As per Notification No. S. O. 827 (E) dated November 14, 1985, Ganja upto 500 grams would be regarded as of 'small quantity' for the purpose of Section 27 of the Act. So. Shri Panigrahi is right in contending that the present was a case of 'small quantity'.

4. The important question is whether in a case of small quantity, the requirements of Section 37 can be said to be non-applicable. From what is being stated later, it would be clear that this is not so.

5. The reason for the aforesaid view is that Section 27 is really not punishing section. The same is, in so far as illegal possession of the articles in question is concerned. Section 20(b), which visualises punishment, if the case were to attract Sub-clause (i), upto five years imprisonment (and if Sub-clause (ii), upto 20 years), which would undoubtedly bring into operation Section 37(1)(b), because that applies to cases of offences punishable with a term of imprisonment of five years or more. What Section 27 visualises is that 'if it is proved' that the 'small quantity' of the article in question was intended for personal consumption and not for sale etc., the accused notwithstanding anything contained if) Chapter IV (in which Chapter Section 27 appears, so also Section 20), shall be punishable with a term which may extend to one year if Clause (a) were to be attracted, and in other case upto six months. It is apparent that the question of applying Section 27 of the Act would arise only during trial, and really after the accused has otherwise been found guilty. This is so because, for the case to come within the fold of Section 27, the accused has to prove that the article in question had been intended for his personal consumption and not for sale etc. The accused shall be able to prove this only during the course of trial, and not at any time preceding it. So, even if a case were ultimately to attract the operation of Section 27 of the Act, at the stage of considering the question of release of the accused on bail, this section is irrelevant ; and the case has to be decided on the basis of the section which makes the offence punishable, which, in the present case, was Section 20(b), as already noted, which attracts the rigour of Section 37(1)(b).

6. The aforesaid view has been taken by this Court in a number of cases, of which reference may be made to : (1) Criminal Misc. Case No. 1422/92 disposed of on 1-10-1992, in which a learned single judge of this Court held that Section 37 was required to be complied with on a submission being made that the recovery being of 50 grams of Ganja, the same was of '-small quantity' bringing into operation of Section 27 of the Act, by pointing out that Section 27 is not a 'charging section (sic. 'punishing section'), but is one, of which note has to be taken at the time of awarding punishment at the conclusion of the trial, and (2) Criminal Misc. Case No. 2001/92, which case could could Under Section 27 of the Act the petition being withdrawn on 23-12-1992 apparently because the offence could not have avoided the rigour of Section 37 of the Act merely because of the quantity being small.

7. Shri Panigrahi lastly refers to Narcotics Control Bureau v. Krishan Lal, AIR 1991 SC 558, in which it was held that the High Court was required to bear in mind, while dealing with the prayer for release on bail Under Section 439, Cr PC, relating to an offence covered by the Act, that limitations imposed by Section 37 are to be borne in mind which had not been done. Despite this, the release of the accused on bail by the High Court was not cancelled, as would appear from paragraph 8 of the judgment. The learned counsel submits that the same view may be taken in the present case. I have not felt persuaded to do so, because reference to paragraph 8 of the aforesaid judgment would show that the Narcotics Control Bureau itself had not pressed for cancellation of the bail, perhaps because it was more interested in getting the law on this subject propounded by the apex Court. As the decision in the aforesaid case had been rendered in January, 1991 and was reported in the March issue of the All India Reporter, 1991 and as in the present case the order of release on bail by the Sessions Judge in exercise of power Under Section 439, Cr PC was passed on 20-8-1992 without bearing in mind the requirements of Section 37(l)(b) of the Act, it would be grossly unfair to the prosecution, indeed to the larger public interest to serve which the Act has been enected, if a palpably illegal order were not set aside.

8. The order of bail granted by the learned Sessions Judge is, therefore, set aside with the result that the bail granted to the accused stands cancelled who shall surrender forthwith.

9. Before parting, it is stated that the present seems to be a fit case where some administrative action against the learned Sessions Judge is merited in view of his palpably illegal order. This may be brought to the notice of the Hon'ble Chief Justice on the administrative side.