The absence of essential components, such as tetrahydrocannabinol, in the FSL report can impact the categorization of contraband under the NDPS Act, 1985.

Headnote:
NDPS Act - Ganja Recovery - Legal Parameters and FSL Report Analysis
Fact of the Case:

The petitioners challenged the FIR/Crime No.265/2011 dated 19.3.2011, which implicated them in the recovery of alleged Ganja. The petitioners contested the lodging of the FIR and subsequent proceedings on legal parameters, emphasizing the definitions under the NDPS Act, 1985.
Finding of the Court:

The court analyzed the chemical analysis report and the absence of tetrahydrocannabinol in the FSL report. It referred to legal precedents and concluded that the recovered contraband could not be categorized as Ganja, leading to the quashing of the FIR and subsequent proceedings.
Issues: The main issue revolved around the categorization of the recovered contraband as Ganja based on the FSL report and the absence of tetrahydrocannabinol. The court also considered the legal parameters under the NDPS Act, 1985.
Ratio Decidendi: The absence of tetrahydrocannabinol in the FSL report and the failure to categorize the contraband as Ganja based on chemical analysis led to the quashing of the FIR and subsequent proceedings.
Final Decision: The petition was allowed, and the FIR/Crime No.265/2011 and subsequent proceedings were quashed.

ORDER

The petitioners have preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (for brevity “Cr.P.C.”), challenging the FIR/Crime No.265/2011 dated 19.3.2011 registered by the Excise Department Amarpatan District Satna, implicating the petitioners.

2. The petitioners have alleged that the petitioner No.1 was a witness in Crime No.87/2011, which was registered on 15.3.2011 in Police Station Amarpatan District Satna. In the aforesaid case, the police had recovered 86.500 kgs of Ganja from Kamal Lodhi and two others. The petitioner No.1 was Panch witness of seizure of the aforesaid alleged contraband.

3. As per the allegations in the present case, on 19.3.2011 the police Amarpatan made a Panchanama that from the pump house of the petitioners, the alleged 2.500 kgs of Signature Not Verified Signed by: MANZOOR Ganja was recovered by the Excise Department. The petitioners have assailed the lodging of FIR in question and subsequent proceedings undertaken in pursuance thereof on legal parameters. In order to appreciate the contentions of the learned counsel for the petitioners, it would be relevant to see the definitions as enumerated in Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act, 1985”). For ready reference, Section 2(iii) of the NDPS Act, 1985 is hereby reproduced as under:-

"(iii) cannabis (hemp) means-

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(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 Signature Not Verified Signed by: MANZOOR (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom.”

4. Cannabis plant and cannabis (hemp) are two distinct contrabands under the NDPS Act, 1985. Cannabis plant means any plant of the genus cannabis. Charas is separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant. It also includes concentrated preparation and resin known as hashish oil or liquid hashish. Ganja is flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops).

5. The contraband allegedly recovered from the petitioners was subjected to chemical analysis. As per the chemical analysis report dated 31.3.2011, Ex.A-1 and A-2 were found containing greenish and whitish coloured leaves, flowers and vegetable item. The chemical microscope and thin layer chromatography examination found the contraband to be Ganja.

Signature Not Verified Signed by: MANZOOR The FSL report did not show the presence of tetrahydrocannabinol in any manner. The sample as a whole was classified as Ganja without any classification based on percentage of tetrahydrocannabinol. In case of Bhang, tetrahydrocannabinol in the sample stuff would be 15%. In case of Ganja, it would be 25% and in case of Charas, it would be between 25-40%. The presence of tetrahydrocannabinol on percentage pattern in the sample stuff would show whether it is actually Bhang, Ganja or Charas. In the absence of such percentage of tetrahydrocannabinol given in the FSL report, no other evidence would make the recovered contraband to be a Bhang, Ganja or Charas. Reference can be made to the judgment of the Himachal Pradesh High Court in Nagendra Shah Vs. State of HP, 2010 (4) RCR (Criminal) 194

6. Learned counsel for the petitioners, even in the absence of any such pleadings submitted that the issue is purely a legal issue and can be racked up during the course of Signature Not Verified Signed by: MANZOOR arguments and the arguments are duly supported by the precedents in Nagender Shah’s case (supra) and Anav Jain Vs. State of Haryana, CRM-M No.51512 of 2022 decided on

Click Here to Read the rest of this document