Bombay High Court: While deciding the instant application for anticipatory bail wherein the Court deliberated on what constitutes ‘Ganja' as per the provisions of Narcotics and Psychotropic Substances Act, 1985; the Bench of Bharati Dangre, J., observed that upon reading of Section 2(iii)(b) of NDPS Act, Ganja is the flowering or fruiting tops of a cannabis plant; however, when there are no accompanying flowering or fruiting tops, then the seeds and leaves of a cannabis plant are to be excluded from the definition of Ganja.
Facts of the case: On 17-04-2021, the Narcotics Control Bureau (NCB) received intel regarding a possible availability of huge quantity of Ganja at the house premises of the applicant in the morning of 18-04-2021. It was alleged that the applicant was involved in selling Ganja from the said house in small packets to the customers, with the help of his two associates.
A team was formed, and a search was carried out into the suspected house premises. The search led to green leafy substances being found in 3 kattas. The leafy substance was purported to be ganja and was sent for testing in order to ascertain its identity. The analysis of the substance reported it to be “in the form of soft greenish heterogeneous mixture flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant (…) the sample under reference answer positive test for Ganja (Marijuana)”.
Contentions: The counsel for the applicant submitted that the seized substance does not match the definition of Ganja as provided in the NDPS Act. It was argued that mere leaves and seeds, in absence of fruiting and flowering tops, would not bring the substance within the purview of the term Ganja.
Per contra, the respondents submitted that even though the Panchnama did not mention the details of the recovered substance, the tests conducted on the substance revealed it to be a contraband i.e., Ganja.
Observations and Decision: Perusing the facts of the case, contentions and the analysis report of the seized substance, the Bench observed that-
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Whether a substance is ‘Ganja' or not, the same will have to be determined on the facts of each case. Perusing Section, the Court further observed that it is implied that if seeds and leaves of cannabis plant are accompanied by flowering tops or fruiting tops, then it would amount to Ganja. However, when the seeds and leaves are not accompanied by the tops, then it will not be considered as Ganja. It would have to be ascertained that whether the flowering or fruiting tops of the cannabis plant are accompanied by the seeds and leaves.
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The Court also noted that the report of analysis of the substance refers to the sample which is a heterogeneous mixture of flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant and that this entire mixture weighed 43 kgs. It was observed that there was a discrepancy between what was seized and what was analyzed, thus prima-facie satisfying the Court that there are reasonable grounds for believing that the applicant is not guilty of offence of dealing in commercial quantity of contraband.
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The Court also observed that it is the duty of the NCB to be assured of what substance is seized and what is forwarded for analysis, as it cannot be left for the Trial Courts to do guess work on the nature of the substance. Furthermore, relying on the proposition laid down in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, regarding consideration of bail application with reference to Section 37 of the NDPS Act, the Court stated that it is necessary to look into the nature of accusations and evidence collected by the prosecution during the course of investigation; and circumstances peculiar to particular cases shall be determined in the backdrop of the fact whether suspicion of the prosecution about indictment of applicant is prima-facie correct.
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With the above-mentioned observations, the Court allowed the application and bail was granted to the applicant with conditions attached.
[Kunal Dattu Kadu v. Union of India, 2022 SCC OnLine Bom 1770, decided on 29-08-2022]
Advocates who appeared in this case :
Mithilesh Mishra i/b Sadiya Khan, Advocate, for the Applicant;
Shreeram Shirsat a/w Amandeep Singh, Advocate, Sra for Respondent No.1;
S.V. Gavand, APP, Advocate, for the State.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.