punjab and haryana high court

Punjab and Haryana High Court: In a petition filed under Section 439 of Criminal Procedure Code, 1973 (‘CrPC’) seeking regular bail for offences under Sections 20, 29, 25, 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’), Deepak Gupta, J. refused to grant bail to the petitioner while denying the claims of flowering tops dried with seeds not to be considered ‘ganja’ as a whole to exclude seeds for making it a non-commercial category of contraband.

The instant matter rooted from secret information received by police officer concerned regarding the petitioner along with his son-in-law jointly involved in the illegal sale of ganja for a long time. It was further informed that two people were sent by the petitioner for supplying ganja to his customers on Activa and were waiting for the customers. The information revealed that if a raid was conducted, they could be apprehended. It was submitted that statutory compliance of Section 42 of NDPS Act through special report to the Senior Police Officers. Search was conducted in compliance with Section 50 of NDPS Act which led to recovery of 2 Kg ganja from joint possession of two people out for supply, kept in a polythene under Activa’s seat. Pursuant to disclosure regarding ganja lying in the arrestee’s house, the petitioner was found filling pouches of ganja, was arrested and 30 Kgs of ganja and 1384 empty pouches were taken into custody.

Non-compliance of Section 42 of NDPS Act and contraband not falling within the purview of Section 2(iii)(b) of NDPS Act was particularly claimed on behalf of the petitioner, stating that “ganja is flowering of fruiting tops of Cannabis Plant (excluding seeds and leaves)” and the material recovered was “greenish brown-coloured flowering tops dried along with the seeds”. It was claimed that the contraband as a whole could not be termed as ganja, since it was a mixture to exclude seeds from the total weight, which would make it less than 20 Kg to fall under non-commercial category.

The petitioner had been in custody for more than 1 year and 7 months. The State Counsel disclosed that the petitioner had been convicted in two cases and was facing trial in four other cases, all pertaining to the NDPS Act, hinting towards being a habitual drug trafficker not deserving the benefit of bail.

Court’s Analysis

The Court considered the contention regarding samples being flowering tops dried with seeds not being ganja, the Court sought to refer to the legal position in this regard through Section 2(iii)(b) of the NDPS Act. The Court explained through the said provision for definition of ‘ganja’ that “seeds and leaves are excluded from definition of ganja, only when the same are not accompanied by the tops.” The Court highlighted that in the instant matter, the seeds were prima facie accompanied by flowering tops, and thus, would fall within the definition of ‘ganja’. Therefore, the entire weight of the material was to be considered to know the total weight of the contraband recovered.

The Court cited Ashok Kumar v. State of Haryana, 2021 (2) DC (Narcotics) 33 to weigh upon what constitutes ‘ganja’ and held the contention that the “the entire recovered material cannot be considered to be ganja or that seeds are required to be excluded for the purpose of knowing the total weight” was without any merit. It further clarified that in case of Isham Singh v. State of Haryana (CRMM-43302 of 2016 decided on 08-12-2016), the material recovered was only greenish brown vegetative material, which was yet to be dried and processed. Therefore, it did not fall within the purview of definition of ganja. Even in Shrihari Mahadu Valse v. State of Maharashtra, 2019 SCC OnLine Bom 7100, the Court showed some doubt on commercial quantity of ganja seized contained flowering buds with piece of stalks, stems, leaves and seeds, without quantifying weight of the flower tops. The Court refused to extend the advantage of Bombay High Court’s view in the instant case.

Perusing the custody certificate and considering his conviction in two cases and involvement in other NDPS matters, the Court found the same sufficient to show the petitioner as “a habitual offender dealing in drug trafficking”. The Court further took note of the fact of petitioner being found making ganja pouches during raid.

Considering the totality of circumstances and refraining any comments on merits, the Court dismissed the instant petition refusing to grant the benefit of bail to the petitioner.

[Sanjay Upadhya v. State of Punjab, 2024 SCC OnLine P&H 222, decided on 16-01-2024]

Advocates who appeared in this case :

Advocate Lakshay Bector, Assistant Advocate General of Punjab Karunesh Kaushal

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