The weight of the entire seized substance and the definition of 'ganja' under Section 2(iii)(b) of NDPS Act are crucial in determining the offense and punishment under the Act.

Mukta Gupta, J.

1. The present appeal is directed against the judgment dated August 20, 2010 passed by the learned Special Judge, NDPS whereby the Appellant Sajivan Rao was convicted for the offence punishable under Section 20(b)(ii)(C) Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). Vide order on sentence dated August 25, 2010, the Appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for two months. Rakesh Thakur and Janeshwar Thakur were also convicted under Section 20(b)(ii)(B) by the aforesaid impugned judgment. Since they have not preferred any appeal as they were awarded sentence of imprisonment for a period of 4 years which was almost undergone during trial, this Court is only concerned with the appeal of Sajivan Rao.

2. Briefly the prosecution case is that on March 9, 2007 at about 9:30 A.M. 18 kg of Ganja was recovered from the possession of Janeshwar Thakur, 21 kg was recovered from Sajivan Rao and 15 kg was recovered from Rakesh Thakur at Hazrat Nizamuddin Railway Station. Janeshwar Thakur, Sajivan Rao and Rakesh Thakur were arrested by the police officials, the contraband was seized and samples were drawn which were sent to FSL pursuant whereto charge sheet was filed.

3. Assailing the conviction, Learned Counsel for the appellant contends that the contraband which was seized was different from the one shown in the Court because seal of AK and NS was affixed to the contraband seized. However, the parcel produced in Court had the seal of SN and AK. It was further contended that the sample of 1 kg was taken, however, as per the FSL report, the quantity received was 963 gms. Handling of seal was doubtful as according to one witness, the seal was handed over to Ct. Raj Kumar, PW-5 whereas the other stated that it was handed over to Ct. Jaswant, PW-1. Lastly, relying upon the decision reported as 2015 (3) JCC (Narcotics) 141 Raj Nandan Sahni v. State, it was submitted that the appellant be released on the period already undergone as the quantity was only marginally high and that too due to the weight of the seeds and leaves.

4. Per contra Learned APP for the State while placing reliance on the decision of Division Bench of this Court reported as 172 (2010) DLT 55 (DB) Ravinder Kumar v. NCT of Delhi (State) contends that the weight of the entire seized substance has to be considered for the purpose of determining whether it is a small quantity or a commercial quantity. It is also submitted that since the seeds and leaves were accompanied by the tops, it cannot be excluded as per the definition of “ganja” under Section 2(iii)(b) of NDPS Act.

5. PW-2 Insp. Ashok Kumar stated that on March 9, 2007, he along with PW-1 Ct. Jaswant and PW-5 Ct. Raj Kumar was checking the passengers at the exit gate DFMD (Door Fixed Metal Detector). Around 9:30 A.M., he saw three persons coming from platform no. 3 and after seeing the police, they tried to flee away in a suspicious condition. He apprehended one of them whose name was revealed as Sajivan. He was having a suitcase. Janeshwar Thakur and Rakesh Thakur, who were carrying black and red colour bags, were apprehended by the two constables. PW-2 checked the suitcase and bags and found plastic polythenes containing a substance smelling like ganja inside the bags and suitcase. He directed PW-5 Ct. Raj Kumar to arrange the IO kit bag, weigh scale and inform the SHO. He requested 4-5 passersby to join raiding party but only one Ali Murtaza agreed to join them. He thereafter informed the accuseds about their right to get their search conducted before a Magistrate/Gazetted Officer and served notices under Section 50, NDPS Act upon them. The offer of search before the Magistrate/Gazetted Officer was declined by the accuseds and their reply was written by the investigating officer on the notices which were duly signed. The recovered gan