Bombay High Court
Rajesh Surpal Pawara vs The State Of Maharashtra on 11 April, 2022
Bench: C.V. Bhadang
2 ba-2675-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.2675 OF 2021
SNEHA
NITIN Rajesh Surpal Pawara ... Applicant
CHAVAN
V/s.
Digitally signed
by SNEHA NITIN
CHAVAN The State of Maharashtra ... Respondent
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Date: 2022.04.11
19:40:19 +0530
Ms.Sana Raees Khan for the Applicant.
Mr.R.M. Pethe, APP for the Respondent -State.
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CORAM : C.V. BHADANG, J.
RESERVED ON : 10 FEBRUARY 2022
PRONOUNCED ON : 11 APRIL 2022
P.C.
. By this Application, the Applicant (Accused No.3) is
seeking release on bail. The Applicant along with co-accused has
been charge-sheeted, for the offence punishable under Section
8(c) 20(c) and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 in Special Case No.157 of 2020 read with
Section 188 of the Indian Penal Code, arising out of Crime
No.209 of 2020 of Adgaon Police Station, District-Nashik.
2. The prosecution case is that on 11 July 2020 at about
1.20 p.m. a secret information was received, that a Swift Desire
Car, coming from Dhule and passing through Nashik was
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carrying Ganja. Accordingly the car bearing No.MH-18-AJ-2133
was intercepted at Adgaon Shevar and on search was found
containing Ganja worth 32 Kgs 350 grms in the dicky of the car.
There were 5 occupants in the car including the present
Applicant. In this case after investigation a charge-sheet came to
be filed.
3. I have heard the learned counsel for the Applicant
and the learned Additional Public Prosecutor. Perused record.
4. It is submitted by the learned counsel for the
Applicant that the co-accused Bhushan Bhoi (Accused No.2) has
been released on bail by the Special Court by order dated 31
October 2020. It is submitted that the role attributed to the
Applicant is similar to Bhushan Bhoi and therefore, parity arises.
5. It is submitted that the Applicant has no knowledge
and there is no conscious possession of the contraband which was
stored in the trunk of the car. It is submitted that there are
serious discrepancies regarding the alleged recovery of the
samples and the weight of the contraband, particular when the
samples were drawn along with stems and leaves which casts a
doubt as to weight of the contraband recovered. It is submitted
that weight of the stem and leaves has to be excluded and if that is
done this cannot be a case of recovery of commercial quantity. It
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is submitted that Section 29 of the Act is inapplicable in this case.
The charge-sheet is already filed and further detention of the
Applicant is not justified.
6. The learned counsel for the Applicant has placed reliance
on the following decisions:
(i) Hari Mahadu Valse V/s. The State of Maharashtra,
decided on 29 July 2021 in Criminal Bail Application
No.2299 of 2019.
(ii) Sanjay Mohan Garad V/s. State of Maharashtra,
decided on 23 November 2021 in Criminal Bail
Application No.459 of 2021.
(iii) Sandip Ashok Raut V/s. State of Maharashtra,
decided on 25 March 2015 in Bail Application No.2522
of 2014.
(iv) Ranver Singh V/s. State of Goa & Anr, decided on
23 September 2021 in Criminal Misc. Application (Bail)
No.583 of 2021. (Goa Bench).
(v) Harsh Shailesh Shah V/s. State of Maharashtra &
Ors, decided on 24 August 2021 in Criminal Bail
Application No.2471 and 2565 of 2021.
(vi) Tushar Suresh Pingle V/s. The State of
Maharashtra decided on 9 January 2020 in Criminal Bail
Application No.1337 of 2019 (Aurangabad Bench).
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2 ba-2675-2021
(vii) Jignesh P. Bhanushali V/s. The Intelligence Officer
& Ors, decided on 25 January 2022 in Criminal Bail
Application No.404 of 2021 and 867 of 2021
(Aurangabad Bench).
(viii) Ramesh Prakash Jadhav V/s. State of Maharashtra,
decided on 30 November 2021 in Criminal Bail
Application No.1329 of 2021 (Aurangabad Bench).
(ix) Abdul Aleem S/o Fayaz V/s. Intelligence Officer,
decided on 15 September 2020, in Criminal Bail
Application No.9319 of 2016 (High Court of Karnataka
at Bengaluru).
7. The learned Additional Public Prosecutor has
submitted that the Applicant is one of the occupants in the car
and as such the conscious possession of the Applicant cannot be
disputed. It is submitted that the detailed examination of the
material/evidence is not required to be done at this stage. It is
pointed out that the raiding party has complied with all the
statutory requirements and even the samples were properly
drawn. The learned Additional Public Prosecutor has referred to
the panchanamma drawn, in order to point out that it does refer
to the 'flowering tops'.
8. The learned Additional Public Prosecutor has placed
reliance on the decision of the Supreme Court in Shiv Kumar
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2 ba-2675-2021
Mishra V/s. State of Goa1, Hira Singh and Another V/s. Union of
India and Another2 and the decision of the learned Single Judge
of this Court in Bail Application No.1623 of 2021 decided on 3
February 2022 (Ilaibaksh Babamiya Mundhe V/s. State of
Maharashtra & Anr.).
9. I have carefully considered the rival circumstances
and the submissions made.
10. According to the prosecution, the contraband Ganja
was recovered from the dicky of the said car. The Ganja was
found stored in two gunny bags. The quantity recovered is
22.350 gms from one bag and 10 kgs from other. The seizure
panchanama shows that after the car was intercepted and the
driver was asked to alight, the driver along with four occupants
tried to escape/flee from the spot. One of the persons was caught
at the spot. Out of four, two stumbled and fell down while
running. However, the raiding party could apprehend all four of
them. It can thus prima facie be seen that all five occupants had
made an attempt to flee from the spot. It is in this context, it was
submitted by the learned APP that the occupants had knowledge
about the possession of the contraband and had a guilty mind.
1 (2009) 3 Supreme Court Cases 797
2 (2017) 8 Supreme Court Cases 162
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11. Be that as it may. First, it is necessary to corridor the
claim of parity, based on the release of the co-accused Bhushan
Bhoi by the learned Special Court. The claim of parity, in my
considered view cannot be accepted, more so, for the reason that
the learned Special Court itself in its discretion has refused to
extend parity. That apart, Bhushan Bhoi was found to be the
driver of the car and the learned Special Court had found from
the statement of one Ganesh Barku Gavali, who was the owner of
the car that accused Bhushan Bhoi had asked the owner for
carrying four passengers to Kasara. On the basis of the statement
of Ganesh Gavali, it has been found that the driver would not
have sought permission from the owner and in any event, was
only carrying other four passengers to Kasara after obtaining the
permission from the owner. This is the principal reason why
Bhushan Bhoi has been granted bail, which is not applicable to
the present Applicant.
12. Coming to the contention based on certain
discrepancies about contraband recovered and the sample sent in
the context of the definition of cannabis under Section 2(b), it is
necessary to note that the substance recovered is described as
punjent smelling flowering tops (kalidar), which was moist in
condition. The perusal of the C.A. report shows that Exh. 1 and
2 (Specimen) drawn from two gunny bags were comprising of
flowering/fruiting tops with greenish coloured leaves, seeds and
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stalks. Prima facie, I am unable to see any discrepancy in the
description. It is true that specifically the presence of leaves,
seeds and stalks, is not found in the panchnama. However, the
essential ingredient of the presence of flowering tops (kalidar) is
there in the panchnama.
13. Section 2(iii)(b) and (c) of the Act, which are relevant
for the purpose read thus:
"2(iii) "cannabis (hemp)" means -
(a) ......
(b) ganja, that is, the flowering of 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; and
(c) any mixture, with or without any neutral
material, of any of the above forms of cannabis or any
drink prepared therefrom;"
It can thus be seen that the essential ingredient of
Ganja is "flooring of fruiting tops of the cannabis plant". This is
excluding the seeds and leaves, only when not accompanied by
the tops. It is significant to note that clause (c) provides that any
mixture, with or without any neutral material, of any of the form
of cannabis or any drink prepared therefrom, comes within the
definition of cannabis (hemp).
14. As noticed earlier, the panchnama as well as the CA
report prima facie indicates presence of 'fruiting tops' which are
the essential ingredient.
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15. In case of Shiv Kumar Mishra(supra), a similar
contention was raised before the Supreme Court based on Section
2(iii)(b) of the Act claiming that the seeds and leaves ought not to
have been included while weighing the seized contraband since
the same was not accompanied by tops. The Supreme Court in
paragraph 14 of the Judgment while negativing the contention
has held thus:
"14. The submissions made by learned counsel for the
appellant are not convincing since from the evidence on
record it has been established that the seized ganja
consisted of greenish-brown coloured leafy and flowery
parts of the plant (in moist condition) which, in terms of
the definition of the expression "ganja", would include
the seeds and leaves of the cannabis plant since the
seized ganja was accompanied by the flowery parts of the
plant."
(Emphasis supplied)
16. It may be mentioned that the learned Single Judge of
this Court (V.G.Bisht, J) by an order dated 03.02.2022 in Bail
Application No. 1623 of 2021 placing reliance on the decision of
the Supreme Court in Shivkumar Mishra (supra) has refused to
accept a similar contention holding that since the contraband
recovered was flowering tops along with leaves, prima facie would
be covered in the definition of Ganja (cannabis) under Section
2(iii) (b) of the Act.
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17. This is not the stage to appreciate the material in
details so as to prejudice either the prosecution or the defence at
the trial. However, the reliance placed on the various decisions,
to my mind is misplaced for the reason that they turned on their
own facts. It is hardly needs to be stated that I am bound by the
decision of the Supreme Court which has also been followed by
learned Single Judge of this Court in Bail Application No. 1623
of 2021, I do not find that a case for grant of bail is made out.
18. The criminal application stands rejected. The trial
stands expedited.
19. It is made clear that the observations herein are
essentially of a prima facie nature and the learned Special Judge
shall not be influenced by the same at the trial.
C.V. BHADANG, J.
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