1. The petitioner, said to be A-4, seeks bail in respect of the offence alleged under sections 20(ii) of the NDPS Act.

2. The case of the prosecution in short is that, the investigating officer in question conducted a raid on Room No.27 of Super Lodge, near Pradeep Theatre, Bangalore on 24.5.2011 at 11.10 a.m. and seized 1 Kg 195 gms of charas at the instance of A-4 i.e. the petitioner herein and from other accused 6 Kgs of charges were seized. The charge sheet was submitted after completion of the investigation and the petitioner’s request for bail was turned down by the trail court. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondent-State.

3. Learned counsel for the petitioner submits by pointing to the chemical analysis report, that is part of the charge sheet material, that the prosecution is not very definite about the samples seized by it as to charas or only ganja and therefore in the face of such report and the percentage of the positive principle resin not being indicated in the report, having regard to the definition of cannabis plant in section 2(ii) of the NDPS Act and also with regard to the notification specifying different quantity, insofar as cannabis and cannabis resin is concerned, it is only possession of more than 1 kg that would come within the commercial quantity and as far as ganja is concerned, it is possession of more than 20 kgs that would attract the commercial quantity. In the instant case, the allegation is that, from this petitioner 1 kg 195 gms came to be seized. Since the FSL report is not very definite as to the seizure of either charas or ganja from this petitioner, the trial court could not have declined to grant bail.

4. Another submission put forward is that, even as per the statement of this petitioner, said to have been recorded during the investigation, the petitioner was not in occupation of the room number in question, but the room was in the name of Nasir and not this petitioner and for this reason also, the trial court could not have refused bail to the petitioner.

5. In support of the aforesaid submission and also relying on the decision of the Himachal Pradesh High Court reported in (2011 (1) Drugs Cases (Narcotics) 37 and the decision of this court reported in (2011 (1) Crimes 508), it is argued that, it has to be established that only the fruiting and flowering part of cannabis plants were found in possession of the petitioner to bring it within the definition of ganja. As in the instant case, chemical report is not very definite and there being no material placed to indicate as to the percentage of active principle, the petitioner therefore be released on bail as he is in custody for more than 1 year 3 months.

6. Learned Government Pleader on the other hand submits that the charge sheet is submitted and the accused can very well take his contentions before the trial court and referring to section 2(iii) of the NDPS Act, submission made is that, what was seized from the petitioner was only charas and as the quantify was more than 1 kg, it falls within the commercial quantify and hence bail be rejected.

7. Whether the petitioner has made out a case for grant of bail is the point for consideration in the light of the aforesaid submission put forward.

8. The definition of ‘cannabis’ in section 2(iii) of the NDPS Act is as under:

(iii) ‘cannabis’ means –

a) Charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

b) 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

c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;

8. It is therefore clear from the aforesaid def