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BA 637 W 598.21.odt

AIN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

BAIL APPLICATION NO.637 OF 2021

DAGDIRAM S/O. DEVRAO MUNDHE

VERSUS

THE STATE OF MAHARASHTRA

...

Advocate for Applicant : Mr. Sudarshan J. Salunke.

APP for Respondents: Mr. S.B. Narwade..

with

BAIL APPLICATION NO.598 OF 2021

NATHRAO DEORAO MUNDE

VERSUS

THE STATE OF MAHARASHTRA

...

Advocate for Applicant : Mr. M.P. Kale

APP for Respondents: Mr. S.B. Narwade.

CORAM : V.G. BISHT, J.

ORDER RESERVED ON : 10^th August.2021

ORDER PRONOUNCED ON : 20^th August, 2021.

ORDER:

1]

These applications have been filed by the applicants under

Section 439 of the Cr.P.C. to enlarge them on bail in connection with

Crime No.0157/2020 registered with Police Station, Pimpaldari, Dist.

Parbhani under Sections 8(c), 2(A)(B)(1), 20(B)(ii)(c), 22 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter

referred to as “the Act” for sake of brevity).

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BA 637 W 598.21.odt

2]

On 6.11.2020, the informant received secret information

that the co-accused Nathrao (Applicant in Bail Application No. 598 of

2021) had cultivated “ganja” plant in his agricultural land situated at

village Dongar-Jawala. After completing necessary formalities, raid was

arranged. Accordingly, on the same day, at about 4.45 p.m., he alongwith

others reached the agricultural land. Applicant - Nathrao was present in

the field. The fields were having Gat Nos. 64 and 65. During a search,

28 plants of Ganja were found in Gat No.64, whereas, 26 plants were

found in Gat No. 65. Those plants were uprooted and seized. It was

alleged that total weight of plants seized from the agricultural land of

accused Nathrao was 138.5 Kg.

3]

While the raid was on, the informant received information

that field of Dagdiram Deorao Mundhe ( applicant in Bail Application No.

637 of 2021) whose agricultural land was situated adjacent to the land of

Nathrao, had also cultivated Ganja plants. Accordingly, raid was

conducted and 35 plants of Ganja were seized. The said plants weighed

about 31 kgs. Accordingly, an FIR came to be lodged.

3]

Mr. Sudarshan Salunke and Mr. Kale, learned counsel for the

respective applicants, vehemently submitted that as per the definition of

“ganja” given in Section 2(b)(c) of the Act, “ganja” is defined as “the

flowering of fruiting tops of the cannabis plant (excluding the seeds and

leaves when not accompanied by the tops)” and “any mixture, with or

without any neutral material, of any of the above forms of cannabis or

any drink prepared therefrom”. The learned counsel heavily assailed the

approach of the prosecution by contending that the entire plants which

were allegedly found in the field of the applicants were weighed without

adhering to the definition of “ganja” as given in Section 2(b)(c) of the

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BA 637 W 598.21.odt

Act, 1985. Needless to say, according to learned counsel, the entire

plants of cannabis i.e. the stem, branches, leaves, roots do not constitute

the term “ganja” as per the said definition clause. The learned counsel

also invited my attention to the CA report, which also shows that the

entire plants of ganja were sent to the Chemical Analyser for the purpose

of analysis. It also goes to show that the flowering or fruiting tops of

cannabis plant was not separated from the plants. Even the seizure

panchanama dated 6.11.2020 would show that the plants which were

uprooted were 3 to 4 feet in height and were weighed in toto. In such

circumstances, according to learned counsel, the rigour of Section 37 of

the NDPS Act will not come to the rescue of the prosecution.

4]

The learned counsel for applicants lastly submitted that