The Bombay High Court ruled that the seeds and leaves of Cannabis plants are excluded from the definition of Ganja.
The single judge bench of Justice Bharati Dangre did not agree with the observation of the senior Judge in the case of Mangilal that whether fruiting tops were sent or not can be determined during trial.
The court said that it is the duty of the bureau to be assured of what substance is seized and what is forwarded for analysis as it cannot be left to the guesswork of the trial Court.
The court while citing the case of “Union of India v/s Shiv Shankar Keshari ” stated that the Supreme Court has held that the Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially to the question of releasing the accused on bail, when the Court has called upon to see if there are reasonable grounds for believing that the accused is not guilty and record satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronounced in the Judgment of acquittal and recording the finding of not guilty.
The Applicant apprehended his arrest in connection with case registered with Narcotic Control Bureau which invoke offence punishable under Section 8( C), read with 20 (b) (ii) (c) , 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985. On the complaint being filed before the Special Judge for NDPS Cases by the Intelligence Officer of NCB, Mumbai Zonal Unit, three persons are charged under the NDPS Act with the abovementioned Sections and the Applicant is arraigned as Accused.
The counsel for the Applicant submitted that the substance which was seized from the other accused failed to match with the definition of “Ganja” as described in the NDPS Act.
He contended that mere leaves and seeds, in absence of fruiting and flowering tops, would not bring the substance within the purview of the term Ganja, a contraband.
Advocate Shreeram Shirsat, appearing for the respondent, admitted that the Panchanama do not mention detailed description of the contraband recovered, but it mention the recovered substance as leafy substance, but on its test it was found to be Ganja.
He contended that the definition of Ganja would reveal that if flowering tops are there , those tops including seeds and leaves become Ganja and; if flowering tops are not there,Ganja does not include seeds and leaves.
The court observed that Ganja is flowering or fruiting tops of the cannabis plant and when the flowering or fruiting tops are not accompanied, the seeds and leaves are to be excluded.
The court said that it is implied that if seeds and leaves are accompanied by tops by way of flowering or fruiting, it would amount to Ganja, but when the seeds and leaves are not accompanied by the tops, this will not be considered as Ganja, ultimately it would have to be ascertained whether the flowering or fruiting tops of the cannabis are accompanied by the seeds and leaves.
The court added that the discrepancy in what was seized and what was analyzed, prima-facie satisfy it that there are reasonable grounds for believing that the Applicant is not guilty of offences of dealing in commercial quantity and in absence of any antecedent he is not likely to commit any offence on bail.
The court ordered that in the event of arrest in connection with a case registered with the Narcotic Control Bureau , the applicant Kunal Dattu Kadu shall be released on bail on furnishing P.R. bond with one or more sureties of the like amount.
Case title: Kunal Dattu Kadu v/s Union of India
Citation: ANTICIPATORY BAIL APPLICATION NO.2173 OF 2022