[2025:RJ-JP:19581]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous 2^nd Bail Application No. 5541/2025 Ismail Khan @ Pathan S/o Sadik Khan, Aged About 30 Years, R/o House No. 213 Bapu Nagar, Jhalamand Choraha, Police Thana Kudi Bhagtasani, District Jodhpur, Rajasthan.

(At Present Confined In Jail At Jodhpur).

----Petitioner Versus State Of Rajasthan, Through PP ----Respondent For Petitioner(s) : Mr. Nirmal Kumar Sharma, Adv.

For Respondent(s) : Mr. Manvendra Singh, PP HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Order

09/05/2025

1. The instant 2^nd bail application has been filed under Section 483 of B.N.S.S. on behalf of accused-petitioner. The accused- petitioner has been arrested in connection with FIR No.61/2023, registered at Police Station Kota, District GRP, Ajmer, for the offence(s) under Sections 8/20 of the N.D.P.S. Act.

2. Learned counsel for the petitioner submits that the first bail application of the petitioner was dismissed by this Court vide order dated 22.05.2024. Thereafter, the Co-ordinate Bench enlarged the other similarly placed co-accused Hansraj on bail, considering the fact that the contraband article, i.e., “Ganja”, contains stem leaves. It is also contended that in the recovery memo, the Police stated that the contraband articles recovered from the petitioner and the other co-accused contained stem and leaves of the cannabis plant. It is further argued that as per Section 2(i)(b) of the N.D.P.S. Act, ganja is defined as the flowering or fruiting tops of the cannabis plant, excluding the seeds and leaves. The recovered contraband articles does not fall within the ambit of Section 2(i)(b) of the N.D.P.S. Act. It is further contended by learned counsel for the petitioner that in the FSL report, it has not been examined whether Tetrahydrocannabinol (THC) and Cannabidiol (CBD) were present in the samples sent to the laboratory. It is contended that according to Tiwari’s medical jurists in forensic medicine and toxicology, in the case of Ganja, the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol is about 25. Therefore, in the absence of a specific report regarding the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol, it cannot be said that the contraband recovered from the petitioner’s possession was “Ganja”. Learned counsel for the petitioner rests his arguments on the judgment passed by the M.P. High Court in the matter of Dayaram Singh & Anr. vs. State of Madhya Pradesh, Miscellaneous Criminal Case No. 7965/2011, dated 04.03.2024. He also places reliance upon the judgment of Kunal Dattu Kadu vs. Union of India, dated 29.08.2022, in which the samples sent to the FSL contained a soft greenish heterogeneous mixture of flowering and fruiting tops, bits of leaves, stems, and stalks along with seeds of the plant. The petitioner’s case is squarely covered by the judgment in Kunal Dattu Kadu vs. Union of India, Anticipatory Bail Application No. 2173/2022, passed by the High Court of Judicature at Bombay, dated 29.09.2022. The petitioner has been behind bars since 07.03.2023, and only 3 witnesses have been recorded out of the 14 cited witnesses. Therefore, considering the long incarceration and on the grounds of parity and other legal points, the bail application of the accused-petitioner may be allowed.

3. Learned Public Prosecutor has vehemently opposed the grant of bail. It is contended that in the FSL report, the samples contained leaves, stems, stalks, and seeds of the cannabis plant, and after analysis, the contraband articles were found to be “Ganja”. The analysis report of the FSL cannot be disbelieved. It is also contended that in the definition under Section 2(i)(b) of the N.D.P.S. Act, it is nowhere mentioned that the percentage of Tetrahydrocannabinol, Cannabinol and Cannabidiol substances should be about 25. Therefore, in the absence of any statutory provisions, the case relied upon by the learned counsel for the petitioner is not applicable, and the pe