Naik Naik & Company
In a recent judgement, the Nagpur Bench of the Bombay High Court has held that the definition of ‘ganja’ or cannabis under the Narcotics Drugs and Psychotic Substances Act, 1985 (NDPS Act), is restricted and does not include the leaves, seeds, stem and stalk, when they are not accompanied by the flowering top”.
In a Bail Application filed by an accused, the Court opined this restriction on the definition of “Ganja” and analyzed its implementation in the procedure for weighing for determination of whether it meets the threshold of commercial quantity under the NDPS Act, i.e., 20kgs.
Case Background
The present order arises out of a bail application in the case of Mohammad Jakir Nawab Ali vs The State of Maharashtra. It revolves around the seizure of contraband ‘Ganja’ from a Maruti Swift Car, that Mr. Mohammad Jakir Nawab Ali (the ‘Accused’) was driving. The local crime branch, acting on a tip, conducted a raid and recovered 50kg of contraband from the back seat of the car.
The bail application cited inordinate delay in the commencement of trial, which was detrimental to the health condition of the Accused as he was HIV Positive. The charges had not been framed and thus, the right of speedy trial was also jeopardized.
The important point of discussion in this case was whether the articles seized from the car, fall within the definition of ‘ganja’. If they do not, the commercial quantity threshold would not be met, and the rigor under section 37 would not be attracted. Section 37 deals with non-bailable offences. The commercial quantity for ‘ganja’ under the NDPS Act is 20kg. However, in the present case, the inventory certificate, as well as the specifications in the FIR, show that the seized articles were leaves, seeds, stems and stalks. When the gunny bag was weighed on the machine by the measurer, it was weighed in totality, i.e., without segregating the different parts (leaves, seeds, stems and stalks).
Court’s Analysis & Judgement
Section 2 (iii) (b) and (c) of the NDPS Act defines ‘Ganja’ as “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 any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom”.
The contents of the FIR, inventory certificate and the investigation papers all elucidate the contents of the seized contraband to be ‘leaves, seeds, stems and stalks’. It appeared to the Court that before weighing, the authorities did not separate the seeds or other components of the plant, to determine the precise quantity of ganja. None of the papers, or the panchnama, mention that the ‘flowering’ or ‘fruiting’ tops of the cannabis plant were even seized from the possession of the Accused.
The court held that “the definition of ‘ganja’ takes in its ambit only the flowering or fruiting tops of cannabis plant and excludes the seeds and leaves when not accompanied by the tops. The definition of ‘ganja’ is thus, restricted and does not include the seeds and leaves of ganja plant.” The Court held that as per the description in the various papers, there was no record of presence of flowering or fruiting tops. The seeds and other parts should have been excluded and weighed separately to ascertain the actual quantity of ganja.
Taking all this into consideration, the Court held that due to the absence of flowering or fruiting tops in the contraband seized, no prima facie involvement of the accused could be proven and thus granted the application for bail to the Accused. The Court did so by exercising it’s powers under Section 37 (1) of the NDPS Act which empowers the Court to grant bail when the Court is satisfied that there are reasonable grounds to believe that he is not guilty of said offence and (2) that he is not likely to commit such offence while on bail.
Analysis With Past Judgements
In the case of Ashok Kumar Vs. State of Haryana (2021), the court, while analysing the definition of ‘ganja’ under Section 2(iii)(b) of the NDPS Act and held tha the seeds and leaves are excluded from definition only when the same are not accompanied by the tops. In this case, the seeds and leaves were also recovered, but they were accompanied by the flowering/fruiting tops. Thus, it was held that the weight of the same was not liable to be excluded from the total weight of the seized articles.
In the case of Arun Kumar Azad Vs. State of Haryana (2021), only the ‘ganja patti’ (leaves) was seized and thus, was not held to be a cannabis plant. This ratio goes to show that in the absence of flowering/fruiting top, the leaves are not considered cannabis plant or ‘ganja’.
In the case of Shri Hari Mahadu Valse Vs. State of Maharashtra (2021), the material that was seized included green leaves, flower buds, and seeds, weighed about 71 kg. 190 grams. The seized material submitted for analysis, included flowering buds along with stalks, stems, leaves, and seeds, according to the chemical analysis report, which did not quantify the weight of the flower tops. Given the facts, the Bombay High Court determined that there was a doubt as to whether the ganja that had been recovered from the custody of the accused, was of commercial quantity or not.
Conclusion
The definition of what constitutes ‘ganja’ has been ambiguous and a matter of discourse by the courts. From the above judicial decisions, we can see that the Bombay High Court has now clarified the scope and procedure required for seizure and weighing of ‘ganja’ under the NDPS Act. The court clarifies the interpretation of the definition’s language and clarifies any disparities that may have been seen from previous decisions laid down by the esteemed courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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