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Synopsis

A single judge bench of Justice Bharati Dangre, Bombay High Court while granting anticipatory bail to an applicant, stated,

 "The discrepancy in what was seized and what was analysed, prima-facie satisfy me that there are reasonable grounds for believing that the Applicant is not guilty of offences of dealing in commercial quantity and in absence of any antecedent he is not likely to commit any offence on bail".

The matter came up before the Court, when an anticipatory bail was filed by the applicant, apprehending an arrest in a case registered with Narcotic Control Bureau which invoked offence punishable under Section 8( C), read with 20(b) (ii)(c) , 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985. It was alleged that the applicant along with his two associates were involved in selling of 'ganja'. After a search in the house of the applicant (where he was not found) was carried out, 3 distinct plastic bags of 15 kg, 15 kg and 13 kg each. of a green leafy substance were seized. However, the analysis of the samples confirmed that, 'The sample is in the form of soft greenish heterogeneous mixture flowering and fruiting tops, bits of leaves, steam and stalk along with seeds of plant'.

Advocate Mithilesh Mishra, for the applicant, argued before the court that the substance seized does not fall within the definition of 'ganja'. Since leaves and seeds, in absence of fruiting and topping, would not fall within the purview of ganja. He also argued, that there is a discrepancy between material that was seized and material analysed, and  involvement of the applicant was presumed only on the basis of the statements given by the co-accused.

The opposing counsel, Shreeram Shirsat, argued that the panchnama mentioned that the substance found is a leafy substance, but after the sample test, it was found to be a heterogeneous mixture of flowering and fruiting tops, bits of leaves, stem and stalk along with seeds of plant and test has been answered as positive for “ganja”. 

The Court referred to the definition of "ganja" under Section 2(iii)(b) of the NDPS Act, which states that:

“Ganja that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated; and which means that if the seeds and leaves are accompanied by the tops then the same can be termed as ganja.”

Referring to the above definition the court noted that the substance would amount to ganja only if seeds and leaves are accompanied by tops by way of flowering or fruiting, but wouldn't be considered 'ganja', if the seeds and leaves are not accompanied by the tops.

Further, there is no reference to fruit or tops in the reports and it only states that a green leafy substance is recovered. Subsequently, the analysis report reveals that the sample is a heterogeneous mixture of flowering and fruiting tops, bits of leaves, stems, and stalks along with seeds of a plant. And that, "ultimately it would have to be ascertained whether the flowering or fruiting tops of the cannabis are accompanied by the seeds and leaves"

The discrepancy between what was seized and what was analysed prima facie satisfied the court the applicant was not guilty of the offense. 

Therefore, the court allowed the application while granting anticipatory bail to the applicant. 

 

CASE TITLE: Kunal Dattu Kadu vs. Union of India