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2022 Supreme(Kar) 1027
IN THE HIGH COURT OF KARNATAKA
K. Natarajan, J.
Roshan Kumar Mishra - Appellant
Versus
State of Karnataka - Respondent
Criminal Petition No. 6611 of 2022
Decided On : 26-08-2022
Sri S Manoj Kumar, Adv., for the Petitioner; Sri R.D. Renukaradhya, HCGP, for the Respondent
The central legal point established in the judgment is the interpretation of the NDPS Act with regard to the inclusion of Bhang as a prohibited drug and the requirement for scientific evidence to determine the nature of the substance.
Headnote:
NDPS Act - Bail Petition - Section 20(b) - 2(iii)(c)
Fact of the Case:
The petitioner was seeking bail in a case registered under Section 20(b) of the NDPS Act for possession of ganja and Bhang. The prosecution alleged that the petitioner was found in possession of prohibited contraband ganja and Bhang. The petitioner argued that Bhang is not a prohibited drug and should not fall under the NDPS Act.
Finding of the Court:
The court considered the arguments of both parties and referred to judgments of the Bombay High Court and Punjab and Haryana High Court, which acquitted accused persons for possessing Bhang as it was not covered under the NDPS Act. The court also analyzed the definition of cannabis (hemp) under Section 2(iii) of the NDPS Act and found that there was no scientific evidence to show that Bhang is prepared from ganja or its leaves. The court concluded that until the receipt of forensic science lab report, it cannot be determined that Bhang is prepared from the substance of ganja.
Issues: The key issue was whether Bhang should be considered a prohibited drug under the NDPS Act and whether the petitioner should be granted bail.
Ratio Decidendi: The court relied on the interpretation of the NDPS Act and previous judgments to determine that Bhang is not covered under the NDPS Act. It emphasized the lack of scientific evidence and the traditional use of Bhang in North India as factors influencing its decision.
Final Decision: The court allowed the criminal petition and directed the release of the petitioner-accused on bail, considering the quantity of ganja in possession, the awaited FSL report, and the absence of prejudice to the prosecution case. The court imposed specific conditions for the bail.
JUDGMENT
1. This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. for granting regular bail in Crime No.143/2022 registered by Begur Police Station, Bengaluru for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent - State.
3. The case of the prosecution is that the suo motu complaint registered by the Begur Police alleging that on 31.05.2022, the complainant-Police Officer received a credible information that in the vacant space adjacent to the Q Grill Bar and Restaurant of Chikkabeguru, two persons were selling prohibited contraband ganja as well as Bhang and the informant also informed the complainant that the said two persons may arrive on the next day around the same time in the said spot. After receiving the information, the complainant obtained permission to conduct raid and they visited the spot along with his staff and panchas where the petitioner said to be in possession of ganja as well as Bhang. They seized 29 kgs of Bhang of different companies, 400 grams of ganja and brought the same to the Police station and got remanded the accused to the judicial custody. His bail application came to be rejected by the Special Judge. Hence, he is before this Court.
4. The learned counsel for the petitioner has contended that the petitioner is in possession of 400 grams of ganja which is less than the small quantity and he has been in possession of 63 packets of Tarang Company Bhang weighing 14 kgs and 44 packets of Masti Munaka Company Bhang weighing 10 kgs, totally, 29 kgs of Bhang. The Bhang is a drink normally sold in the Lassi shops at North India. It is not a prohibitory drug. The said drink is used during the Shivarathri festival, it is not a banned drink and it does not fall under the NDPS Act. The petitioner is in custody for almost three months. He is ready to abide by the conditions that may be imposed by this Court. Hence, prayed for granting bail.
5. Per contra, learned High Court Government Pleader seriously objected the petition and contented that the Bhang is prepared out of the ganja leaves, therefore, it comes under the definition of ganja. The investigation is under progress. The seized articles are more than commercial quantity. Hence, prayed for dismissing the bail petition.
6. Having heard the arguments and on perusal of the records, which reveals, the petitioner was arrested by the Police and seized cannabis i.e., ganja weighing 400 grams which is not a commercial quantity. However, the learned High Court Government Pleader submitted that the Bhang is prepared out of the ganja leaves which comes under the definition 2(iii)(c) of NDPS Act. The learned counsel for the petitioner has relied upon the judgment of the Bombay High Court in the case of Madhukar vs. The State of Maharashtra reported in 2002 SCC OnLine Bombay 1271, whereas, the Bombay High Court while considering with regard to Bhang has stated that it is not covered under the NDPS Act, therefore, acquitted the accused for possessing the Bhang, but, convicted for the possession of ganja. Similarly, the petitioner counsel has relied upon the another judgment of Punjab and Haryana High Court in the case of Arjun Singh vs. State of Haryana reported in 2004 SCC Online P&H 828, wherein, the Punjab and Haryana High Court has also acquitted the accused persons in the appeal as the Bhang is not covered under the definition of NDPS Act.
7. In view of the above said decisions of both Bombay High Court as well as Punjab and Haryana High Court wherein, they have followed the decision of Rajasthan High Court and it is worth to mention the definition of Section 2(iii) of NDPS Act which reads 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 an
