IMPORTANT POINT
The court established that procedural compliance under the NDPS Act is crucial for the admissibility of evidence, impacting the decision to grant bail.

ORDER :

1. The jurisdiction of this court has been invoked by way of filing an instant second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. The first bail application of petitioner came to be disposed of by this Court vide order dated 27.02.2024 passed in SBCRLMB No.6681/2022 with the liberty of file afresh after recording the statement of Seizing Officer. Now the statement of Seizing Officer is recorded. Hence, the instant bail application.

3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. He contends that as per the definition given under Section (2) of the NDPS Act, only the flowering or fruiting tops of the cannabis plants (hemps) can be considered as Ganja. Now it is not discernible as to what was the exact weight of tops only and what was rest of the article. If the weight of the Ganja is below commercial quantity then the embargo contained under Section 37 of the NDPS Act is not applicable. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

5. Have considered the submissions made by both the parties and have perused the material available on record.

6. Perusal of the record revealing that the petitioner is behind the bars since 15.10.2021. As per Section 2 of the NDPS Act; only flowering and fruiting tops of the cannabis plant are defined as ‘Ganja’ and the other parts viz., roots, stalks, branches, stems and the other material of the plant are not considered to be contraband under the NDPS Act specially when they are not accompanied with the tops.

7. A perusal of the Seizure Memo and the statements of P.W. 1 & 2 Dhanpat Singh Barod and Prakash Chandra who are instrumental to make seizure stated in their cross examination during trial that the seized article containing leaves, stem, stalks and roots of the cannabis plant. P.W.1 has candidly admitted that the maximum part of the article were seeds and dry straws, the total weight of the seized article is 61.1 Kg. The tops were not accompanied with the other parts of the plant. What was the exact weight of flowering and fruiting tops is not discernible. If the statement of P.W. 1 Dhanpat Singh Barod is taken into account, then it would reveal that the maximum weight of the seized article did not fall within the definition of ‘Ganja’ under the NDPS Act. The definition given under the Rajasthan Excise Act as well as under the NDPS Act makes it clear that Ganja means flowering or fruiting tops of the Hemp plant (excluding the seeds and leaves when not accompanied by the tops). Leaves of the Cannabis plant are called ‘Bhang’ which is an excisable article and contravention of which comes under the Rajasthan Excise Act.

8. After search and seizure, the petitioner was arrested on 15.10.2021 thereafter the articles which were seized at the spot were marked as ‘A’ to ‘D’ and the same were sent to the FSL on 20.10.2021. No inventory was prepared and verified in the presence of the Magistrate as per the provision of Section 52A of the NDPS Act and the samples so verified were not sent for scientific investigation. As per the mandate of law, the samples taken in the presence of a Magistrate should be sent to the Forensic Laboratory. Not making inventory in accordan