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2024 Supreme(Online)(RAJ) 4142
HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
FARJAND ALI
SAMPAT LAL GURJAR – Appellant
Versus
STATE OF RAJASTHAN – Respondent
CRLMB / 11901 / 2024
Mr. Abhishek Purohit, Mr. NK Gurjar, AAG, Mr. Rajesh Bhati, AGA
The definition of Ganja under the NDPS Act necessitates the presence of flowering tops, and without clear evidence, the accused is entitled to bail.
Headnote:
Bail - NDPS Act - Sections 8, 20, 25, 52A - The court interpreted the definition of 'Ganja' under the NDPS Act, emphasizing the necessity of separating flowering tops from other parts of the cannabis plant for determining the weight and applicability of the law, ultimately granting bail due to insufficient evidence of a serious offense.
Fact of the Case:
The accused was arrested for possessing 37.100 Kg of cannabis, alleged to be Ganja. The petitioner argued that the seized substance did not meet the legal definition of Ganja as it included leaves and stems without the flowering tops, and the weight of the flowering tops was not determined.
Finding of the Court:
The court found that the definition of Ganja requires the flowering tops to be present with the other parts of the plant. The lack of proper inventory and scientific verification of the seized substance raised doubts about the prosecution's case, favoring the accused.
Issues: Whether the seized substance qualifies as Ganja under the NDPS Act and if the accused should be granted bail based on the evidence presented.
Ratio Decidendi: The court held that without clear evidence separating the flowering tops from other parts of the cannabis plant, the accused could not be presumed guilty of a serious offense under the NDPS Act, warranting bail.
Final Decision: The bail application was granted, allowing the accused to be released on bail.
Order
1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:
| S.No. | Particulars of the Case | |
| 1. | FIR Number | 51/2024 |
| 2. | Concerned Police Station | Aasind |
| 3. | District | Bhilwara |
| 4. | Offences alleged in the FIR | Under Sections 8/20 of NDPs Act |
| 5. | Offences added, if any | Under Section 8/25 of NDPS Act |
| 6. | Date of passing of impugned order | 27.08.2024. |
2. 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. 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.
3. 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.
4. I have considered the submissions made by both the parties and have perused the material available on record.
5. The petitioner is behind the bars since 23.02.2024 for the allegation that 37.100 Kg Ganja came to be recovered from him. As per the first bail application rejected by this Court on 06.05.2024, with liberty to him to renew the prayer after completion of investigation and filing of the charge-sheet, now as the charge-sheet has been filed, thus the second bail application.
Learned counsel for the petitioner would fervently contend that the recovered contraband in its entirety do not fall within the category of Ganja as defined under Section 2(iii)(b) of the NDPS Act. As per him only the flowering and fruiting tops of the Cannabis (Hemp) plant are defined as Ganja and the other things viz. seeds, leaves, stem and stalk of the Cannabis plant would not come under the definition of the Ganja. Particularly, when the leaves are not accompanied with the flowering and fruiting tops. He further contends that since the separate weight of the leaves, seeds and stalk has not been taken on record at the time of seizure thus, it would be now impossible to say as to exactly what was the weight of flowering and fruiting tops, if any, recovered by the police officer.
I have minutely gone through the definition as mentioned in the NDPS Act and so also relied upon the order passed by this Court on 23.08.2024 in (S.B. Misc. Bail Application No.4948/2024 (Dal Singh Vs. State of Rajasthan) wherein dealing with the aforesaid circumstances bail was granted to the accused. The relevant part of the order dated 23.08.2024 is being reproduced herein:-
“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 th seized article did not fall within the definition pf ‘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’ is 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 20.10.20
