Ganesh Ram vs State Of Rajasthan

Kuldeep Mathur, J

This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.49/2022 registered at Police Station Shergarh, District Jodhpur, for offence under Section 8/20 of the NDPS Act.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

As per prosecution, SHO Devendra Singh, P.S. Shergarh received a specific information that huge quantity of contraband (Ganja) is being transported in a container having registration number RJ-49-GA-2678. On 17.03.2022, after receiving aforesaid secret information SHO Devendra Singh, Police Station Shergarh alongwith the Police Officials conducted a Nakabandi at the road leading towards Balotra. After some time when the offending vehicle reached at the Nakabandi point the petitioner who was found sitting on the wheel of the offending vehicle was asked to allow the police personnel to conduct search of the offending vehicle. During search of the offending vehicle black coloured pulpy Narcotic Substance containing moisture (Ganja) weighing 6 quintal 47 kg 900 grams was recovered from 25 sacks.

Learned counsel for the petitioner submitted that the seized material does not fall within the purview of Section 2(iii)(b) of the NDPS Act and therefore the FIR registered against the petitioner would not be sustainable. He submitted that the seized material was not “Ganja” and was only a “Ganja Patti” containing moisture. Learned counsel vehemently submitted that as per the definition given under Section 2 (iii)(b) of the NDPS Act, only the flowering or fewiting tops of the cannabis plants (hemps) can be considered as “Ganja”. The leaves of cannabis are considered as ‘Bhang’, the definition of which is given in the Rajasthan Excise Act. The roots, stalks branches and stems and the other material of the plant would not be covered under the NDPS or the Rajasthan Excise Act. Learned counsel submitted that in the present case although it is alleged that the recovered material is Ganja but from the perusal of the seizure memo, it would reveal that the recovered material is “Ganja Patti” containing moisture.

Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.

Per contra, learned Public Prosecutor has opposed the bail application.

Heard.

The Hon’ble Supreme Court in Shiv Kumar Mishra Versus State of Goa [2009(3)SCC 797] while referring to the definition of ‘Ganja’ contained under Section 2 (iii) (b) of the NDPS Act observed that when the seized Ganja consisted of greenish brown colour leafy and flowery parts of the plant, then it will fall within the definition of Ganja and would include the seeds and leaves of the cannabis plant since the seized Ganja was accompanied by the flowery parts of the plant. Furthermore, the moisture content is not to be excluded while ascertaining the total weight of seized material. Para No.11 of the judgment is reproduced as under:-

“11. the submission made by learned counsel for the appellant are not convincing since from the evidence on record it has been established that the seized Ganja consisted of a greenish brown colour leafy and flowery parts of the plant (in moist condition) which, in terms of the definition of the expression “Ganja”, would include the seeds and leaves of the cannabis plant since the seized Ganja was accompanied by the flowery parts of the plant. As far as exclusion of the moisture content of the seized Ganja is concerned, there is nothing in the Narcotic Drugs and Psychotropic Substances Act to suggest that when the weight of a quantity of Ganja is to be ascertained, the moisture content has to be separately ascertained and excluded. On the other hand, we are of the view that the weight of the contraband woujld be the weight taken at the time of seizure.”

This court is also conscious of the judgment rendered by the Hon’ble Supreme Court of India in the case of State of Kerala etc. Versus Rajesh etc.[2020(1) RC (Criminal) 818] wherein Hon’ble Apex Court has observed that the operative part of Section 37 of the NDPS Act is in the negative from, prescribing the enlargement on bail, to any person accused of commission of an offence under the Act, unless the twin conditions of Section 37 of the NDPS Act are satisfied.

Having considered the rival submissions, facts and circumstances of the case, this court prima facie finds that a huge quantity of contraband (Ganja) was recovered from the conscious possession of the present petitioner. This court also prima facie finds that the findings of the Forensic Science Laboratory (FSL report) has been received by the investigating agency wherein a clear finding has been given that the recovered contraband is Ganja. This court does not find any force in the argument of the learned counsel for the petitioner that the confiscated material was “Ganja Patti” containing moisture and therefore the same does not fall within the purview of Section 2 (iii) (b) of the NDPS Act. In the prima facie opinion of this Court the recovered contraband is covered by the plain and simple language used under Section 2(iii) of the NDPS Act and merely because the recovered article was “Ganja Patti” containing moisture that would not mean that being moist leaves of cannabis plant, the same would not be covered by the definition of ‘Ganja’ given under the NDPS Act. The petitioner cannot be permitted to create a camouflage by turning the word “Ganja” as “Ganja Patti” containing moisture.

In the result, in view of the aforesaid discussion this court does not find any merit in the present bail application, the same is therefore dismissed.

However, the petitioner shall be at liberty to file a fresh bail application after the statements of Investigating Officer are recorded.