IMPORTANT POINT
The central legal point established in the judgment is the interpretation and application of the NDPS Act, particularly in determining commercial quantity and entitlement to bail under Sec. 167(2) of Cr.P.C.

JUDGMENT

1. This Criminal Petition, under Ss. 437 and 439 of Cr.P.C., has been filed by the petitioner/accused, seeking regular bail, in Crime No.272 of 2023 of Kuppam Urban Police Station, Chittoor District.

2. A case has been registered against the petitioner for the offences punishable under Sec. 8(b) read with 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act").

3. Case of the prosecution, in brief, is that, on 7/7/2023 at about 11.00 A.M. at Thangedikuppam Village, Kuppam Mandal, the accused, who was cultivating Cannabis plants in Survey No.115/8A3, was arrested under a cover of mahajarnama and 70 plants were destroyed by burning them. Then, the Investigation Officer seized 3 cannabis plants and sent the same for chemical examination after duly sealed and labeled. The said cannabis plants were weighing about 50 Kgs and thereafter the accused was sent for judicial custody.

4. Learned counsel for the petitioner submits that as per the Prosecution"s case, the cannabis plants were seized and 70 plaints were destroyed and it is not the case that material was found with flowering or fruiting tops along with seeds and the weighment of the plants is 50 kgs and as such, it cannot be treated as non-commercial quantity.

5. On the contrary, learned Assistant Public Prosecutor opposed the petition on the ground that the investigation is not completed.

6. Heard. Perused the record.

7. The expression "ganja" as defined in Sec. 2 (iii)(b) of the NDPS Act, does not include seeds and leaves when not accompanied by the tops. Sec. 2(iii)(b) defines 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.

8. The definition itself shows that when the leaves and twigs are accompanying the flowering or fruiting tops, the same are called "Ganja" and the leaves and twigs are not required to be separated therefrom.

9. As already noted, it is the prosecution"s case that from the fields of accused, three cannabis plants were seized and the remaining 70 plants were destroyed. Nowhere in the seizurenama, it has mentioned that the material found was with flowering or fruiting tops. In the definition, the legislature has specifically excluded seeds and leaves and specifically mentioned that cannabis means fruiting or flowering tops.

10. According to the prosecution"s case, weight of 70 ganja plants is about 50 kgs. It is not the weight of the plants which is to be taken into consideration. It is not the case that the said plants contain flowering and fruiting tops.

11. Learned counsel for the petitioner contends that the crime is registered against the accused was under Sec. 8(b) r/w. 20(a)(i) of the NDPS Act. He further submits that if the accusations made against the accused in the Remand Report are taken to be true, Sec. 8(b) of the NDPS Act may be applicable to the accused. At this stage, it is pertinent to refer Sec. 8(b) and (c) of the NDPS Act, which reads as under:

"(b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export interState, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and exp