Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Appellants:Mr. K.M. Shiralli, Advocate.
For the Respondent: Mr. P.H. Gotkhindi, GP.

IMPORTANT POINT
Only fruiting or flowering part of cannabis plants would be ganja and render liable a person possessing cannabis plants for quantity of such fruiting or flowering part of plants.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20(b)(1) and 36-A—Recovery of 10 kg of ganja in two bags from house of appellant —Appeal—Question as what was the actual produce seized and what was its quantity—Seizure panchnama showed that what had been seized was cannabis plants, its stems, leaves, branches and even fruiting parts— No steps were taken to separate the fruiting tops or flowering from ganja plants before weighing—It was difficult to know what was the ganja quantity to be tried by Special Court against appellant—As the quantity was not specified, designated court could not have embarked on trial and jurisdictional Magistrate ought to have tried offence against appellants—Conviction was liable offence against appellants ought to have tried to be set aside.
       Held: From the extracted portion it is seen what the officers have seized are cannabis plants. The description of seized product shows it had stems, leaves, branches and, perhaps even the fruiting parts. But the question is can the stem, leaves, branches be termed as ‘Ganja’ in view of definition referred to above. The answer is obviously in the negative, because the Act itself defines what is Ganja. Not only the raiding party but the Investigation Officer has not separated fruiting tops or flowering from the Ganja plants before weighing. What has been done is they have weighed the entire plants to record the weight as 10 kgs. Since the leaves, stem and branches were also part of the weight, (mass) there was no definite weight of actual flowering or fruiting part of the plant (defined as Ganja). Hence the evidence produced before the prosecution to sustain the charge is totally vague. If the whole plant is seized, then it will only be a cannabis plant and not Ganja. (Para 10)
       Thus, it is seen that a designated Court gets jurisdiction to decide a case only if the punishment prescribed is more than 3 years. If the punishment prescribed is upto six months, then the Special Court has no jurisdiction and the trial has to be by a Magistrate under the Cr.P.C.
       The non obstante clause contained in Section 36A of the Act becomes applicable depending upon the punishment prescribed. In the instant case as the quantity itself is not specified, the designated Court could not have embarked on the trial. The jurisdictional Magistrate ought to have tried the offence against the petitioners.
       It must be remembered that NDPS Act is a special enactment which is a self-contained constituent not only relating to investigation but preservation of contraband, its certification, its sampling and its production before the Court. Provisions are mandatory in nature and non-compliance to such provisions renders conviction of the appellant for offence punishable under Section 20(b)(i) unsustainable. (Paras 14 & 15)

K. K. Rejji VS State by Murdeshwar Police Station, Karwar