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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
MADAN GOPAL VYAS, J.
Ramesh S/o Fagana - Appellant
Versus
State Of Rajasthan - Respondent
S.B. Criminal Miscellaneous Bail Application No. 3732 of 2023
Decided on : 19-04-2023
Criminal Procedure Code,1973 - Section 439 - NDPS Act - Section 8/20 – Possession of Ganja - Bail application - Petitioner is in judicial custody since long - Argues that recovered contraband (Ganja plants) does not fall within definition of "Ganja" because it consists of leaves, seeds, buds and stalks of cannabis plants - Leaves and stalks of cannabis plant are expressly excluded from definition of Ganja - It is prayed that bail application as preferred by petitioner may be rejected – Court have heard learned counsel for petitioner and Public Prosecutor and perused material available on record as well as judgments/orders relied upon by respective parties - Whether flowering or fruiting tops of cannabis are accompanied by seeds and leaves - It is prayed that bail application as preferred by petitioner may be rejected – Court have heard learned counsel for the petitioner and learned Public Prosecutor and perused material available on record as well as judgments/orders relied upon by respective parties. Para 5
Finding of Court :
Having regard to facts and circumstances of case and in view of orders/judgments passed by this Court as well as other High Courts, without commenting on merits and demerits of case, Court is of opinion that bail application filed by petitioner deserves to be accepted, with certain conditions - authorities will release petitioner only if he is not required in connection with any other offence for time being - It will be open for concerned Court to modify and/or relax any of the above conditions, in accordance with law.
ORDER :
1. The present bail application has been filed under Section 439 of Cr.P.C. on behalf of the petitioner, who is in custody in relation to FIR No.66/2022, Police Station Mandwa, District Udaipur for the offence under Section 8/20 of the NDPS Act.
2. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the present case. It is further submitted that the petitioner is in judicial custody since long. Learned counsel further argues that the recovered contraband (Ganja plants) does not fall within the definition of "Ganja" because it consists of leaves, seeds, buds and stalks of the cannabis plants. Learned counsel submits that the leaves and stalks of cannabis plant are expressly excluded from the definition of Ganja. He further submits that as per Central Government notification S.O. 527 dated 16th July, 1996 specifying small quantity and commercial quantity of Narcotics Drugs and Psychotropic Substances, it does not prescribe commercial and small quantity of cannabis plant. It is also submitted that the charge-sheet has been filed. He further submits that in similar circumstances, the coordinate Bench of this Court granted indulgence of bail. In support of his arguments, he relied upon following orders and judgments of Coordinate Bench of this Court and orders and judgments passed by the Bombay High Court and the Gujarat High Court:
ii. SB Cr. Misc. Bail Appl. No.4402/2020: Bhura Ram Vs. State, decided on 27.5.2020
iii. SB Cr. Misc. Bail Application No.8874/2020 : Dhanaram Vs. State, decided on 3.9.2020
iv. Anticipatory Bail Appl. No.2173/2022: Kunal Dattu Kadu Vs. UOI, decided on 29.8.2022 (Bombay High Court)
v. SB Cr. Misc. Bail Application No.12894/2021 : Bhagchand Vs. State & Ors. decided on 4.10.2021
vi. SB Cr. Misc. Bail Application No.9279/2022 : Vinod Kumar Vs. State of Raj, decided on 7.7.2022 vii. SB Cr. Misc. Bail Application No.11230/2022 : Shrawan Lal Meena Vs. State, decided on 22.7.2022
viii. Cr. Misc. Application No.22599/2021 : Fatesang @ Kalubhai Harisangbhai Masani Vs. State of Gujarat, decided on 2.5.2022 (Gujarat High Court)
ix. Bail application No.951/2022: Santosh Apposo Naik Vs. State of Maharashtra, decided on 13.5.2022 (Bombay High Court)
3. In view of the above, it is prayed that the petitioner may be enlarged on bail.
4. Learned Public Prosecutor vehemently opposed the bail application. He submits that at the stage of considering the prayer of the petitioner for granting the benefit of bail, the arguments advanced by the learned counsel for the petitioner may not be considered. In support of his contentions, he relied upon the following orders/judgments:
ii. Cr. Appeal No.361/2009 : Shiv Kumar Mishra Vs. State of Goa, decided on 23.2.2009, Supreme Court of India
iii. Cr. Appeal No.722/2017 : Hira Singh & Anr. Vs. UOI & Another, decided on 22.4.2020, Supreme Court of India
5. Thus, it is prayed that the bail application as preferred by the petitioner may be rejected. I have heard the learned counsel for the petitioner and learned Public Prosecutor and perused the material available on record as well as the judgments/orders relied upon by the respective parties.
6. The Coordinate Bench of this Court in Bhagchand (supra) while granting bail held as under:
"2. Definition.- In this Act, unless the context otherwise requires,-
(iii) "cannabis (hemp) means-
(b) ganja, that is, the flowering of 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"
Having regard to the facts and circumstances of the case, particularly looking to the observations as made by the co-ordinate Bench of this Court in the or
Point of Law : Police has filed this charge-sheet for cultivation of cannabis plants as also possession of Ganja, if it failed to prove at the time of trial, if at all they are able to prove, that to....
Section 20 of N.D.P.S. Act reads as punishment for contravention in relation to cannabis plant and cannabis.
Section 20 of N.D.P.S. Act reads as punishment for contravention in relation to cannabis plant and cannabis.
The definition of Ganja excludes leaves and seeds when not accompanied by flowering tops, affecting bail eligibility under the NDPS Act.
Seeds and leaves without tops are not termed as Ganja.
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