The Bombay High Court has held that as per Section 2(iii)(b) of the NDPS (Narcotic Drugs & Psychotropic Substances) Act, 1985, the term ‘Ganja’ excludes seeds and leaves unless they are accompanied by the flowering or fruiting tops of the Cannabis plant.

A Single Bench of Justice Anuja Prabhudessai observed, “The term ‘Ganja’ as defined in Section 2(iii) (b) means the flowering or fruiting tops of the Canabis Plant (excluding the seeds and leaves when not accompanied by the tops), by whatsoever name they may be known or designated. … 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 Canabis plant. This has been the consistent interpretation of this Court in Rahul Bhimrao Pawar, Kunal Dattu Kadu, Hari Mahadu Walse, Amit Shankar Devmare, (supra).”

The Bench while allowing the bail application said that the material on record does not prima facie indicate that the leaves, seeds, and stalks were accompanied by the flowering or fruiting tops of the Cannabis plant.

Advocate Sana Raees Khan represented the applicant while APP R.M. Pethe and API Bhoye represented the respondent.

In this case, an application under Section 439 of the Cr.PC. was filed by the applicant, who was facing trial in NDPS related case in the Sessions Court, Mumbai, for the offences punishable under Sections 8(c) and 22(c) of the NDPS, 1985. The case of the prosecution was that the complainant found the applicant moving around in a suspicious manner with two travel bags.

When the police team went towards him, he tried to run away from the place of the incident and he was caught and his travel bags were seized and opened in presence of panchas. The accused was alleged to have carried 10 kg of Ganja in one bag and 11 Kg of Ganja in the other bag and the sample of Ganja was drawn in presence of the panchas and was sent to the forensic laboratory which classified the sample as ‘Ganja’ within the definition of Section 2(iii)(b) of the NDPS Act.

The High Court after hearing the contentions of the counsel asserted, “The report reveals that the contraband, which was recovered from the Applicant is ‘Ganja’ within the meaning of Section 2(iii) (b) of the NDPS Act. … The records prima facie reveal that the total weight of ‘Ganja’ allegedly seized from the Applicant was 21 kgs., which is 1kg in excess of the quantity specified by the Government in the notification. As noted above, the substance, which was seized contained leaves, seeds, stalks and flowering fruiting tops. The total weight of the substance, which was seized was 21 kgs. and this includes the weight of leaves, seeds and stalks, which prima facie were not accompanied by the flowering or fruiting part.”

The Court noted that the fact that the entire substance was weighed together without quantifying the weight of the flowering or fruiting tops, casts a doubt on whether ‘Ganja’ seized from the applicant was of commercial quantity as to attract provision under Section 20(c) of the NDPS Act.

“… the investigating agency has not drawn samples independently from both the bags, but had mixed together the entire contraband in both the bags and thereafter drawn two samples, one of which was forwarded to CFSL for analysis. … In the instant case, as noted above, the sample sent to CFSL was not the representative sample. Considering this vital aspect, in my considered view the Applicant would be entitled for bail”, said the Court.

The Court, therefore, directed that the applicant be released on bail by furnishing PR bonds in the sum of Rs. 50,000/- with one or two sureties of the like amount.

Accordingly, the Court granted bail to the applicant.

Cause Title- Ibrahim Khwaja Miya Sayyed @ Raju v. The State of Maharashtra (Neutral Citation: 2023:BHC-AS:9766)

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