NDPS Act, 1985, Section 20 - Recovery of Ganja from accused - Only flowering and fruiting tops come within definition of Ganja as per Section 2(iii)(b) and not the seeds and leaves - Bail Allowed

PUNJAB AND HARYANA HIGH COURT

Before :- M.M.S. Bedi, J.
Crl. Misc. No. 53336-M of 2007. D/d. 20.2.2008.
Sudhir - Petitioner Versus State of Haryana - Respondent Crl. Misc. No. 50029-M of 2007.

Kehar Singh - Petitioner Versus State of Haryana - Respondent

Crl. Misc. No. 2530-M of 2008. Parveen Kumar - Petitioner Versus State of Haryana - Respondent
For the Petitioner in Crl. Misc. No. 53336-M of 2007 :- Mr. N.K. Sanghi and Mr. Aditya Sanghi, Advocates.
For the Petitioner in Crl. Misc. No. 50029-M of 2007 :- Mr. Lekh Raj Sharma , Advocate.
For the Petitioner in Crl. Misc. No. 2530-M of 2008 :- Mr. Saurabh Mohunta, Advocate.
For the Respondent :- Mr. K.S. Godara, DAG, Haryana,

A. Narcotic Drugs and Psychotropic Substances Act, 1985, Section 37 - Recovery of 60 kgs of Ganja from three accused persons - Bar of Section 37 of NDPS will not apply - Bar of Section 37 of the NDPS Act is not applicable in case of recovery of less than 20 kg of Ganja, meaning thereby, that 60 kg of Ganja recovery from three persons, i.e. less than commercial quantity - Accused in custody for 7 months - Bail allowed. [Paras 4 and 8]

B. Narcotic Drugs and Psychotropic Substances Act, 1985, Section 2(iii)(b) - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20 - Recovery of Ganja from accused - Only flowering and fruiting tops come within definition of Ganja as per Section 2(iii)(b) and not the seeds and leaves - In addition of flowering or fruiting tops, the contents of the bags included seeds and leaves of the cannabis, meaning thereby, that the quantity of the actual ganja in the bags was lower than the weight determined by the investigating officer - The percentage of tops in the sample was not determined - In such a case actual quantity of ganja could not be ascertained - Accused in custody for 7 months - Bail allowed. [Paras 7 and 8]

C. Narcotic Drugs and Psychotropic Substances Act, 1985, Section 20 - Narcotic Drugs and Psychotropic Substances Act, 1985, Section 37 - Recovery of 3 bags of ganja - As per instructions of Central Govt. packages/containers should be well mixed to make it homogeneous and representative before the sample is drawn in case of opium, ganja and charas etc. - This exercise not done in this case - Bail allowed. [Para 8]

JUDGMENT

M.M.S. Bedi, J. (Oral) - This order will dispose of three petitions bearing Crl. Misc. Nos. 53336-M of 2007, 50029-M of 2007 and 2530-M of 2008 for the grant of bail, as the same have arisen from the same FIR.

2. As per the story of prosecution, on July 19, 2007, a Pick-up vehicle driven by Parveen Kumar was signaled to stop. On checking of the vehicle, two persons, namely, Kehar Singh and Sudhir, petitioners were found to be sitting on three gunny bags. Notice under section 50 of the NDPS Act was served upon the three persons to the effect that the three gunny bags were suspected to contain some intoxicant. They were given option to be searched in the presence of some Magistrate or some gazetted officer. The petitioners reposed faith. Gunny bags were searched. Out of each bag two samples of 100 grams each were taken out. Six packets of sample of ganja were prepared and each gunny bag was weighed. Two gunny bags weighed 22.800 kgs. while third gunny bag was weighing 24.800 kgs. The bags were sealed. The gunny bags were taken into possession vide recovery memo. An attempt was made to join independent witness. In this way, the three petitioners were allegedly found to be in possession of 71 kgs. of ganja.

3. Counsel for the petitioners contended that the mandatory provisions of Section 50 of the NDPS Act have not been immaculately followed and the statement made waiving their statutory right is not admissible as per Section 25 of the NDPS Act, as the petitioners had been arrested. A serious doubt has been raised regarding the quantity and the contents of the bags which were allegedly recovered from the petitioners.

4. I have heard counsel for the petitioners and State counsel who opposed the application. The bar of Section 37 of the NDPS Act is not applicable in case of recovery of less than 20 kg of ganja, meaning thereby, that 60 kg of ganja recovery from three persons, i.e. less than commercial quantity will not attract the provisions of Section 37 of the NDPS Act. It appears that 60 kg of ganja from the three petitioners would to some extent not prima facie attract the provisions of Section 37 of the NDPS Act.

5. I have carefully gone through the report of the Forensic Science Laboratory pertaining to the contents of the bags recovered from the petitioners. The physical appearance of the sample is described as follows :-

"Greenish brown vegetative material having flowering/fruiting tops and seeds etc".

6. A perusal of the report indicates that the contents of the sample contained the seeds as well as leaves of Cannabis plant as is indicated from the colour of the contents of the sample and the ingredients recorded by the Scientific Officer. In order to attract the provisions of Section 20 of the NDPS Act, the ganja should fall within the definition of Section 2(iii) (b) which reads as follows :-

"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".

7. It is apparent that in addition to flowering or fruiting tops, the contents of the bags included seeds and leaves of the cannabis, meaning thereby, that the quantity of the actual ganja in the bags was lower than the weight determined by the investigating officer. The percentage of tops in the sample was not determined. A reference to the instructions SO 390 (E) issued while exercising powers under first proviso of Section 8 of NDPS Act, 1985, the Central Government had specified w.e.f. December 13, 1989, as the date from which the prohibition against production, possession, use, consumption, purchase, sale, transport etc. of ganja was to take effect. As per para 1.6 of the said notification, it is observed that the packages/containers should be well mixed to make it homogenous and representative before the sample is drawn in case of opium, ganja and charas etc. A perusal of the FIR indicates that the said exercise had also not been done before taking the samples of the contents of the bags.

8. In view of the above circumstances, identification of the contents and the quantity of actual ganja falling within the definition of NDPS Act will be a debatable proposition. The petitioners have been in custody for the last 7 months. Only five witnesses out of the total nine witnesses have been examined. The period of detention already suffered by the petitioners will certainly have, in my opinion, a deterrent effect upon the petitioners not to commit the similar offence during the pendency of the trail. Therefore, the petitioners are ordered to be released on bail to the satisfaction of the trial Court subject to the condition that in case they are found to commit similar offence of which they are accused of, during the pendency of the trial, the prosecution will be at liberty to seek the cancellation of bail.

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