The case of the prosecution was that the applicant-accused was in possession of more than 20 kg of ganja, which amounts to commercial quantity as per the NDPS Act.
A single-judge bench of Justice Anuja Prabhudesai said that while ascertaining the weight of ganja for determining the threshold of offense under the NDPS Act, the weight of seeds, leaves and stalk of the plant should be excluded.
The Bombay High Court recently held that as per Section 2 (iii) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) Act, ganja means the flower or fruit of the cannabis plant, excluding seeds and leaves When not with top.
A single-judge bench of Justice Anuja Prabhudesai said that while ascertaining the weight of ganja for determining the threshold of offense under the NDPS Act, the weight of seeds, leaves and stalk of the plant has to be excluded.
The court said, “A plain reading of this section would show that the seeds and leaves would not be covered under the definition of ‘hemp’ unless they accompany the flower or fruiting top of the cannabis plant. “
The case of the prosecution was that the applicant-accused was in possession of more than 20 kg of ganja, which amounts to commercial quantity as per the NDPS Act.
In November, 2020, the complainant had found the applicant moving in a suspicious manner with two travel bags and tried to flee when the police approached him. The bags were seized and opened in the presence of Panchs.
It was told that the accused was carrying 10 kg of ganja in one bag and 11 kg in the other. The sample was taken in the presence of the judges and sent to the forensic lab. The forensic report classified the sample as ‘Ganja’ under the definition of Section 2(iii)(b) of the NDPS Act.
The counsel for the applicant submitted that the investigating officer also attached flower buds, stalks, leaves and seeds besides the flower buds. It was submitted that the leaves, seeds and stalks cannot be considered as ‘ganja’ unless they are accompanied by tops.
It was further argued that the actual flowering or fruiting heads were not weighed separately and this raises doubts whether the ‘Ganja’ seized from the applicant was of commercial quantity.
It was submitted that the police did not take sample from each travel bag, but mixed the substance from both the bags and then took the sample, which was sent to CFSL for testing. Counsel relied on the judgment of the Delhi High Court in Ram Bharose v. State (Government of NCT Delhi).
On the other hand, the counsel for the respondent relied upon the judgment of the Supreme Court in Santosh Apposo Naik v. State of Maharashtra that while weighing the seized ‘ganja’, leaves, seeds and stalks should have been excluded.
It was further argued that the sampling was done in accordance with law.
The court noted that perusal of the panchnama revealed that the contents in each bag were mixed together and thereafter sample was taken and sent to CFSL for opinion.
The court observed that as per the forensic report, flower/fruiting heads, seeds, leaves and stalks were received in a sealed packet as Exhibit A-1.
“A plain reading was mixed together in each of these bags and thereafter a sample was taken and the same was sent to CFSL for opinion,” the court said.
It was said that the material does not prima facie indicate that the leaves, seeds, stalks were with the flowering or fruiting top of the cannabis plant.
“The fact that the entire substance was weighed together without quantifying the weight of flowers or fruiting heads, raises doubts whether the ‘ganja’ seized from the applicant would attract the provisions under section 20(c) of the NDPS Act. was of commercial quantity to attract Rs.
Thus, the applicant was entitled to bail on furnishing a bond for an amount of Rs.50,000/-
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