The interpretation of seized material and the need for compliance with the procedures under the NDPS Act are crucial in determining the culpability of the accused.

JUDGMENT

1. This is an application under Sec. 439 of the Code of Criminal Procedure for releasing the applicant on bail in connection with Crime No. 043 of 2020 registered with Shirpur Taluka Police Station, Dist. Dhule for the offences punishable under Ss. 20(b), 22(c), 20(ii)(c) of NDPS Act.

2. The informant who is an Assistant Police Inspector filed the FIR stating therein that on 16 th June, 2020 at 9.30 a.m. that he was called by Shivaji Budhwant from Local Crime Branch and informed him that he got secret information that the applicant from Lakdya Hanuman village, Taluka Shirpur had collected Ganja beside his house in the field of the applicant Mangilal Pawara. Accordingly, raiding party was formed and the spot mentioned in secret information was raided. The raiding party reached the field of the applicant in Lakdya Hanuman village at 03.20 p.m. On seeing the raiding party, the persons standing in the field started running. The Officer from Shirpur Taluka Police Station identified the said person and started calling him Mangilal stop. However, he ran away. In this field, the raiding party found that near the house under construction there was a heap of leaves of green colour, seeds and husk of twigs covered under several plastic gunny bags. On weighing the said Ganja it was found to be of 30.500 kilograms in one plastic bag. There were 128 bags. Thus, total Ganja found was 3904 kilograms. Accordingly, the said Ganja was seized, panchnama was drawn, samples were taken and forwarded to the Chemical Analyzer for analysis.

3. Charge-sheet has been filed.

4. Heard learned counsel Shri. P. B. Patil for the applicant and learned APP Shri. Narwade for the respondent/State.

5. Shri. Patil, learned counsel submitted that there is nothing on record to show that the house under construction belonged to the applicant or the field on which the house was being constructed belongs to the applicant. Therefore, it cannot be said that the applicant is the owner of the said field or the said house. He further submitted that the procedure under Sec. 42(1) of the NDPS Act has not been followed. He submitted that the prosecution has seized green leaves, husk of twigs, seeds from the spot of the incident. However, chemical analyzer report shows that the fruiting tops with greenish colored leaves, seeds and stalks were examined by the Chemical Analyzer. He submitted that this shows that the material which was not seized by the prosecution has been examined by the Chemical Analyzer. Therefore, it cannot be said that the material seized from the applicant was Ganja. He submitted that in terms of Sec. 2(iii)(b) of the NDPS Act, if fruiting tops are accompanied then only seized leaves and twigs deserved consideration. If fruiting tops are absent, twigs, green leaves and seeds cannot be termed as Ganja. He submitted that applicant was not found at the spot. He was identified by some one from the raiding party. Allegedly applicant was identified by the said officer and he called out Mangilal stop. On the basis of this hearsay statement, it cannot be said that the person who had run away was the applicant. Applicant is behind bars since 20/7/2021. He submitted that there is nothing on record to show that applicant was in conscious possession of the Ganja. He, therefore, prayed for allowing the application.

6. He placed reliance on the following cases:-

(i) 2008(2) AIR Bom R 538

(ii) 2016 DGLS (SC) 624

(iii) Bail Application No. 2108 of 2016 (Rajaram Kadu Vs. The State of Maharashtra)

(iv) Criminal Bail Application No. 3033 of 2021 (Rameshwar Ambadas Sasare Vs. The State of Maharashtra)