The Hon’ble Bombay High Court in a recent order¹ granted pre-arrest bail to the Applicant who was accused of committing an offence punishable under Section 8(C), read with Sections 20(b) (ii)(c), 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”).

The case of the prosecution was that Ganja belonged to the Applicant and Accused Nos.1 and 2 who used to sell it in small packets to the customers of the Applicant and each packet comprised of 10 Grams and it was sold for Rs.100/- per packet. This has been discerned from the statement of Accused Nos.1 and 2 recorded under Section 67 of the NDPS Act. The search led to three plastic kattas and the Complaint as well as Panchanama refer to the substance in the Katta as “leafy substance”, which on weighing was found to be 43 kgs, packed in sacs of 15 kgs, 15 kgs and 13 kgs.

The CA report has mentioned that the sample under reference has tested positive for Ganja. However, for the first time in contrast to the green “leafy substance” which was found and seized, from each samples were drawn, report of analysis refer to the sample which is in the form of soft greenish heterogeneous mixture flowering and fruiting tops, bits of leaves, steam and stalk alongwith seeds of plant and this was tested positive for Ganja.

Under the NDPS Act, Ganja is defined as the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) which means Ganja is the 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 Hon’ble Bombay High Court held 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.

In the present case, the Complaint alleged that the substance which was seized is green leafy substance, but there is no reference of the flowering and fruiting of tops and leafy substance indicating that it is a mixture of green leafy substance and it can only amount to Ganja, when it is accompanied with the flowering and fruiting tops. Strangely, the report of analysis refer to the sample which is heterogeneous mixture of flowering and fruiting tops, bits of leaves, steam and stalk alongwith seeds of plant. Necessarily the entire mixture is weighed and found to be 43 kgs on the basis of which the Applicant is charged for possession and delivering commercial quantity of Ganja.

Thus, the Hon’ble Bombay High Court granted Anticipatory Bail to the Applicant as there was a discrepancy in what was seized and what was analyzed which prima-facie satisfied the Hon’ble Court 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.

By - Lakshmi Raman