The court's power to grant bail to an accused charged under the Narcotic Drugs and Psychotropic Substances Act, 1985 is subject to the limitations imposed under Section 37(1)(b) of the Act, which restricts bail in cases where the punishment prescribed is rigorous imprisonment for a term of five years or more.

S.K.Chattopadhyaya, J.

1. In this application under Secs. 439 and 440 of the Code of Criminal Procedure, an interesting question of law has been raised by Mr. Radhey Shyam Pandey, learned Counsel, for the Petitioner.

2. In order to appreciate his argument, some facts which are necessary, as follows:

First information report was lodged against the petitioner on the allegation that on 20-1-1994 at 2.30 p.m. the Officer-in-Charge raided the house of the petitioner and recovered one kilogram of ganja from the roof of the house. First information report was lodged for the said offence under Sec. 47(A) of the Excise Act and Sec. 16 of the Narcotic Drugs Act.

3. Mr. Pandey learned Counsel for the petitioner submits that the item ganja has defined in Sec. 2(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, the Act) which goes to show that 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. It is submitted that the first information report as well as the seizure list does not show that ganja which was alleged to have been recovered was excluding the seeds and leaves and not accompanied by tops. On these circumstances, it is submitted that the case of Tribhuwan Kharwar V/s. The State of Bihar 1994 (1) PLJR 501, (1994) 2 BLJR 600 (DB) has no application and the petitioner is entitled to be released on bail by this Court it is further submitted that the petitioner for the offence alleged may be convicted under the Excise Act and definitely not under the Act.

4. learned Counsel appearing on behalf of the State, however, has submitted that the first information report and seizure list disclose recovery of ganja which comes under the definition of Sec. 2 (b) of the Act and whether seized ganja was with seeds or leaves is a matter of evidence and as such the High Court has no jurisdiction to grant bail in view of the reported decision of this Court as well as the Supreme Court.

5. In order to appreciate the contentions of the counsel of the parties, the meaning of different narcotic substances may be looked into.

6. The dictionary meaning of "cannabis" is the hemp genus (without cap), a Narcotic Drug variously known as hashish, bhang marijuana etc. Similarly, the meaning of "hemp" according to Chambers of Twentieth Century Dictionary means a plant (cannabis sativa) classified by some as belonging to the Mulberry family. Sec. 2 (xiv) of the Act defines "Narcotic Drug" as coca leaf, cannabis (hemp), opium, poppy straw and includes at manufactured drugs.

7. Sec. 8 of the Act is prohibitory in nature and lays don that no person shall

(a) ...

(b)...

(c) "produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any Narcotic Drug or Psychotropic substance. Sec. 52-A of the Act contemplates disposal of seized Narcotic Drugs and Psychotropic Substances.

8. In exercise of the powers by Sec. 52-A(1) of the Act, the Central Government has specified some of the Narcotic Drugs and Psychotropic Substances and ganja is one of them.

9. Taking into consideration the scope of definition of ganja, in my opinion, it is futile to argue that failure to mention in the first information report or the seizure list specifically about recovery of ganja from the house of the petitioner with seeds and tops will entitle the petitioner to be released on bail.

10. In this connection, it will be useful to look to the definition of "Hemp Plant" as defined in Sec. 2(11) of the Bihar Excise Act, 1915 . Definition of "Hemp Plant" as given in Sec. 2(11) means the Plant Cannabis Sativa. Reading these two provisions together, in my opinion, ganja as defined in the Act definitely comes within the purview of the Act.

11. Mr. Pandey, however, has submitted that in similar circumstances a Divis