The case of the prosecution was that the applicant-accused was in possession of more than 20 kg of ganja, which amounted to commercial quantity as per the NDPS Act.
A single-judge bench of Justice Anuja Prabhudessai said that while ascertaining the weight of ganja for deciding the extent of culpability under the NDPS Act, the weight of seeds, leaves and stalks of the plant has to be excluded
The Bombay High Court recently observed that as per Section 2(iii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act, ganja means the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves when not accompanied by the tops.
A single-judge bench of Justice Anuja Prabhudessai said that while ascertaining the weight of ganja for deciding the extent of culpability under the NDPS Act, the weight of seeds, leaves and stalks of the plant has to be excluded.
“A plain reading of this section would reveal seeds and leaves would not be covered under the definition of ‘ganja’ unless they are accompanied by the flowering or fruiting tops of the cannabis plant,” the court said.
The case of the prosecution was that the applicant-accused was in possession of more than 20 kg of ganja, which amounted to commercial quantity as per the NDPS Act.
In November, 2020, the complainant had found the applicant moving around in a suspicious manner with two travel bags and he tried to run away when the police approached him. The bags were seized and opened in the presence of panchas.
It was stated that the accused was carrying 10 kg of Ganja in one bag and 11 kg in the other. A sample was drawn in the presence of panchas and was sent to forensic laboratory. The forensic report classified the sample as ‘ganja’ within the definition of Section 2(iii)(b) of the NDPS Act.
The counsel for the applicant stated that apart from the flowering buds, the Investigating Officer also attached stalks, leaves and seeds. It was submitted that leaves, seeds and stalks cannot be considered as ‘ganja’ unless accompanied by the tops.
It was further contended that the actual flowering or fruiting tops were not separately weighed and this raised a doubt whether the ‘ganja’ seized from the applicant was of commercial quantity.
It was submitted that the police had not drawn sample from each of the travel bags, but had mixed the substance from both the bags and thereafter drawn the sample, which was sent to CFSL for examination. The Counsel relied on the decision of Delhi High Court in Ram Bharose vs. State (Govt. of NCT of Delhi).
On the other hand, the counsel for respondent relied on the decision of Apex Court given in Santosh Apposo Naik vs. the State of Maharashtra to counter the submission that leaves, seeds and stalks ought to have been excluded while weighing the seized ‘ganja’.
It was further contended that the sample was drawn in accordance with law.
The court said that the perusal of the panchnama revealed that the contents in each of the bags were mixed together and thereafter sample was taken and the same was forwarded to CFSL for opinion.
The court observed that according to the forensic report, flowering/fruiting tops, seeds, leaves, and stalks were received in a sealed packet marked as Exhibit A-1.
“A plain reading in each of these bags were mixed together and thereafter sample was taken and the same was forwarded to CFSL for opinion,” the court observed.
It was said that the material prima facie didn’t indicate that the leaves, seeds, stalks, were accompanied by the flowering or fruiting tops of the cannabis plant.
“The fact that the entire substance was weighed together without quantifying the weight of the flowering or fruiting tops, casts a doubt whether ‘ganja’ seized from the Applicant was of commercial quantity as to attract provision under Section 20(c) of the NDPS Act,” the court said.
Thus, the applicant was entitled to bail on furnishing bonds to the sum of Rs 50,000.
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