Point of Law: Section 20 of N.D.P.S. Act reads as punishment for contravention in relation to cannabis plant and cannabis.

JUDGMENT :

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.65/2022, Police Station Mandwa, District Udaipur for the offence under Sections 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 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:

i. SB Cr. Misc. 2nd Bail No.4232/2017: Ladu Vs. State, decided on 25.5.2017

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:

i. Cr. Petition No.11678/2022: Sri Rangappa Vs. State, decided on 7.12.2022, Karnataka High Court

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.

6. 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.

7. The Coordinate Bench of this Court in Bhagchand (supra) while granting bail held as under:

"For ready reference, the definition as provided in Section 2 of the NDPS Act is reproduced herein 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 order dated