‘Ganja’ under S.2(iii)(b) of NDPS Act covers only flowering/fruiting tops of cannabis plant, excludes seeds/leaves; Bombay HC grants bail

Bombay High Court: The present application was filed by applicant under Section 439¹ of the Criminal Procedure Code, 1973 in respect of a case registered at Police Station Sonala, District Buldhana for the offences punishable under Section 8(c), 20(b)(ii)(C), 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’). A Single Judge Bench of Urmila Joshi-Phalke, J., noted that the definition of ‘ganja’ under the NDPS Act takes in its ambit only the flowering or fruiting tops of cannabis plant and excluded the seeds and leaves when not accompanied by the tops. The definition of ‘ganja’ was restricted, and it did not include the seeds and leaves of the plant. The Court thus opined that what was seized was the plants, i.e., leaves, seeds, stems, and stalks and without separating the same, the ganja was weighed. Therefore, the Court released applicant on bail.

Background

In the present case, the crime was registered based on the report lodged by the Local Crime Branch Officer, Buldhana (‘the Officer’), who received secret information that one person in a car was transporting contraband article ‘ganja’. Therefore, in presence of the panchas, the Officer conducted raid at the field of Dharmendra Mahadev Ingle. During the raid, one white colour Maruti Swift car was searched which was being driven by applicant and in the said car, contraband ‘ganja’ weighing about 50 kgs was found. The description of the contraband article was of greenish colour seeds, leaves, stalk, stems, and roots and other parts of the plant. Thus, in presence of the panchas, the samples were obtained and forwarded to the Chemical Analyser (‘CA’). After completion of investigation, the charge sheet was submitted.

Counsel for applicant submitted that applicant was suffering from HIV positive, and his health condition was deteriorating day by day. Though he was arrested on 07-12-2021, there was no substantial progress in the trial and charges were yet to be framed. It was stated that the contraband article, which was seized from the car, was not ‘Ganja’ within the definition under Sections 2(iii)(b) and 2(iii)(c) as the leaves, seeds, stems, and stalks were excluded from the definition of ‘Ganja’.

Counsel for State submitted that the CA report disclosed that the contraband article which was forwarded was ‘Ganja’, which was sufficient to show that the contraband articles which was seized was within the definition of Ganja.

Analysis, Law, and Decision

The Court stated that commercial quantity in relation to NDPS Act for ‘ganja’ means any quantity greater than 20 kg and Sections 2(iii)(b) and 2(iii)(c) defined ‘Ganja’ as the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they might be known or designated, and any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.

The Court opined that the definition of ‘ganja’ defined and clarified that ‘ganja’ was the flowering or fruiting tops of the cannabis plant excluding the seeds and leaves when not accompanied by the tops.

The Court stated that the inventory certificate, the recitals of the FIR, and the panchnama showed that the seized articles were leaves, seeds, stems, and stalks. Further, when the bag was measured with the help of weighing machine produced by the Measurer, the contraband articles weighed a total of 50 kgs, containing leaves, seeds, stems, and stalks and none of the investigating papers showed that either these materials were segregated and thereafter weighed.

The Court stated that none of the paper mentioned that the contraband articles which were seized included the flowering or fruiting tops of cannabis plant. Further, the seizure panchnama nowhere showed that the flowering or fruiting tops of cannabis plant were, in any other manner, were along with the contraband articles seized from the possession of applicant.

The Court thus opined that what was seized was plant, i.e., leaves, seeds, stems, and stalks and without separating the same, the ganja was weighed. The Court opined that as the seized material was not weighed after separating the leaves and the other parts and moreover, it was not along with the flowering or fruiting Tops, therefore, it was difficult to ascertain whether quantity could be said to be commercial.

The Court stated that the expression “reasonable ground” in Section 37 of the NDPS Act means something more than prima facie ground, it contemplates substantial probable cause for believing that the accused was not guilty of the offence.

The Court noted that the definition of ‘ganja’ under the NDPS Act takes in its ambit only the flowering or fruiting tops of cannabis plant and excluded the seeds and leaves when not accompanied by the tops. The definition of ‘ganja’ was restricted, and it did not include the seeds and leaves of ganja plant. Thus, if at all the seeds and other parts were to be counted as fruiting part, it ought to have been excluded and weighed separately to measure the quantity of ganja.

The Cour thus held that it was difficult to accept that the alleged prohibited substance was within the definition of ganja under the NDPS Act and since the only flowering or fruiting tops of cannabis plant were classified as ganja, in absence of the said substance being seized from applicant, it was difficult to hold that applicant was prima facie involved.

The Court opined that there was an inordinate delay in conducting the trial and, therefore, the right of the accused to have a speedy trial was affected. The Court relied on Ankur Chaudhary v. State of Madhya Pradesh, Special Leave to Appeal (Crl.) No. 4648 of 2024, wherein the Supreme Court held that an inordinate delay in trial was affecting the right of the accused to have a speedy trial, which was a violation of Article 21 of the Constitution.

The Court thus allowed the application and held that applicant be released on bail on executing PR bond of Rs 50,000 with one surety in the like amount.

[Mohammad Jakir Nawab Ali v. State of Maharashtra, 2024 SCC OnLine Bom 3198, decided on 20-09-2024]

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Advocates who appeared in this case:

For the Applicant: R.J. Mirza, Advocate

For the Non-applicant/State: A.J. Gohokar, APP