The definition of "Ganja" under the NDPS Act requires only the flowering or fruiting tops of the cannabis plant to be weighed.

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Miscellaneous IInd Bail Application No. 16041/2022

Anil S/o Manohar Sonvane, Aged About 31 Years, R/o Kanchan

Nagar, P.S. Shani Peth, Tehsil & Dist. Jalgaon (Maharashtra).

(At present lodged in Dist. Jail Chittorgarh).

----Petitioner

Versus

State of Rajasthan, through PP

----Respondent

For Petitioner(s)

:

Mr. Lokesh Mathur

Mr. Priyank Kewaliya

For Respondent(s)

:

Mr. Laxman Solanki, PP

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

05/01/2023

The present second bail application has been filed under

Section 439 Cr.P.C. on behalf of the petitioner who is in custody in

connection with

F.I.R. No.335/2021, Police Station Sadar,

Nimbahera, District Chittorgarh for the offence under Section 8/20

of NDPS Act.

Heard learned counsel for the petitioner as well as learned

Public Prosecutor and also perused the material available on

record.

After the rejection of the first bail application of the

petitioner on 23.02.2022, the statement of Seizure Officer- Narulal

Gehlot has been recorded before the trial court as PW-1.

Learned counsel for the petitioner submits that in the

statement of PW-1, it has come on record that the Seizure Officer

(2 of 3)

[CRLMB-16041/2022]

has not segregated flowers, stems, leaves and seeds of the

recovered contraband while weighing the same. He further

submits that as per the definition of "Ganja" in the NDPS Act, the

contraband is required to be "Ganja" only that is, if the flowering

or fruiting tops and the cannabis plant (excluding the seeds and

leaves when not accompanied by the tops are weighed). Since, in

the present case, the entire material weighed is stated to be 26

Kgs, therefore, it cannot be said that the petitioner was carrying

the contraband beyond the commercial quantity permitted.

Learned counsel also submits that the petitioner was only a

passenger in the vehicle and was not connected with the recovery

of the contraband in this case. He also submits that in the similar

circumstances, this Court in S. B. Criminal Misc. Bail Application

No.15395/2021 Satyanarayan Vs. State of Rajasthan decided on

29.11.2021, enlarged the petitioner on bail. He submits that there

is no case of like nature pending or decided against the present

petitioner. The conclusion of trial will take sufficiently long time,

therefore, it is prayed that the petitioner may be enlarged on bail.

Learned Public Prosecutor has opposed the bail application.

I have considered the submissions made at the Bar and have

gone through the statement of PW-1, Recovery Officer, who has

stated that while weighing the entire contraband along with the

polybags, the weight has come to 26 Kgs. The entire material was

weighed without segregating the flower, stem, leaves and seeds.

As per the definition of "Ganja" given in the NDPS Act which

reads as under:

“2. Definitions- In this Act, unless the context

otherwise requires,-

(I) …

(3 of 3)

[CRLMB-16041/2022]

(II) …

(III) “Cannabis (hemps)” means-

(a) …

(b) ganja, that is, the flowering or 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… “

As per the definition, it is necessary that the material

recovered should only be the flowering or fruiting tops and the

cannabis plant to come within the definition of "Ganja" and if the

same is not segregated and weighed, then it cannot come within

the definition of "Ganja", more particularly in the commercial

quantity in the present case.

Having regard to the peculiar facts and circumstances of the

case, this Court deems it just and proper to release the petitioner

on bail.

Accordingly, this second bail application filed under Section

439 Cr.P.C. is allowed and it is directed that the petitioner- Anil

S/o Manohar Sonvane shall be released on bail in connection

with F.I