The main legal point established in the judgment is the interpretation of the definition of 'ganja' under the NDPS Act, emphasizing that seeds and leaves are excluded from the definition only when not accompanied by the tops, and considering the accused's history of habitual drug trafficking involvement in refusing bail.

JUDGMENT :

Deepak Gupta, J.

By way of present petition filed under Section 439 C.P.C., petitioner prays for his release on regular bail in case FIR No.112 dated 03.06.2022 registered under Sections 20, 29, 25, 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') at Police Station S.T.F. Phase-4, SAS Nagar, Mohali.

2.1 As per prosecution allegations, on 03.06.2022, ASI ParamJit Singh along with SI Gurcharan Singh and other police official of S.T.F. Ludhiana were present near Bapu Market, Village Lohara, when secret information was received to the effect that petitioner - Sanjay Upadhya along with his son Sonu Kumar and son-in-law Aklesh Kumar was jointly doing the illegal business of sale of ganja since long time. It was further informed that Sonu Kumar and Aklesh Kumar had been sent by the petitioner on an Activa to supply ganja to his customers and that the said Sonu and Aklesh were sitting on Activa waiting for their customers and if raid is conducted, they can be apprehended. Statutory compliance of Section 42 of the NDPS Act was made by sending special report to the Senior Police Officers.

2.2 FIR was lodged. The Police party reached at the informed place, where co-accused Aklesh and Sonu Kumar were found sitting on an Activa. After making compliance of Section 50 of the NDPS Act, search was conducted. 2 Kg. of ganja was recovered from their joint possession kept in a polythene under the seat of the Activa. Both of them were arrested on 03.06.2022 and during interrogation, co-accused Aklesh disclosed that he and co-accused Sonu Kumar had gone to supply the ganja and at that time, present petitioner was making pouches of ganja in the house of Aklesh and that some ganja was lying in his house. Pursuant to this disclosure statement of the co-accused Aklesh Kumar, Police party reached his house, where petitioner - Sanjay Upadhya was found filling pouches of ganja at the upper floor of the house. He was arrested. The ganja kept in the pouches was filled in two bags and was found to be 30 Kgs. Said ganja along with 1384 empty pouches were taken into possession.

3.1 It is contended by learned counsel for the petitioner that there is non-compliance of Section 42 of the NDPS Act; that contraband confiscated by the prosecution does not fall within the purview of Section 2(iii)(b) of the NDPS Act, because ganja is flowering of fruiting tops of Cannabis Plant (excluding seeds and leaves) and that in the present case, as per the FSL report, the recovered material is "greenish brown-coloured flowering tops dried along with the seeds". Learned counsel contends that confiscated material cannot be termed as ganja as a whole and it was a mixture and that seeds are liable to be excluded from the total weight and if that weight is excluded, the recovered material will be less than 20 Kg falling in the non-commercial category.

3.2 Learned counsel has relied upon Arun Kumar Azad and others Vs. State of Haryana and others, 2021 (3) RCR (Criminal) 398 [this court]; Shri Hari Mahadu Valse Vs. The State of Maharashtra, Law Finer Doc Id #1874112 [Bombay HC]; and Isham Singh Vs. State of Haryana - CRM-M-43302 of 2016 decided on 08.12.2016 [this court].

3.3 Learned counsel also contends that petitioner is in custody for the last more than 01 year & 07 months and that the trial may take long time to conclude. Though learned counsel concedes that the petitioner is also involved in other cases pertaining to the NDPS Act but has referred to a judgment of Hon'ble Supreme Court in Prabhakar Tewari Vs. State of U.P. And another - Law Finder Doc Id #1670858, in order to contend that pendency of the other criminal cases cannot be a basis for refusal of bail.

4. 1 Strongly opposing the bail petition, learned State Counsel contends that recovered material is 'flowering of fruiting tops of the Cannabis plant', which has been defined as a "ganja" within the meaning of Section 2 (iii)(b) of the NDPS Act. Learned State Counsel relied up