Santosh Apposo Naik vs State Of Maharashtra
2022 Latest Caselaw 4943 Bom

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                                                                     12 ba 951 of 2022.doc

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION
                            BAIL APPLICATION NO.951 OF 2022

Santosh Apposo Naik                                             ...    Applicant
     versus
The State of Maharashtra                                        ...    Respondent

Mr. Vikrant Desai with Mr. S.M.Kamble i/by Mr. Asggar Kalim Ansari,
for Applicant.
Mr. R.M.Pethe, APP, for State.

                                  CORAM: N.J.JAMADAR, J.

                                  RESERVED ON      : 11th MAY, 2022
                                  PRONOUNCED ON : 13TH MAY, 2022
                                  (VACATION COURT)

P.C.

1. The Applicant who is arraigned in NDPS Special Case

No.1187 of 2021 arising out of C.R.No.30 of 2021, registered with

Anti Narcotic Cell, Mumbai, for the offences punishable under

Sections 20(C) read with Section 8(C) and 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 ('the NDPS Act'), has

preferred this Application to enlarge him on bail.

2. The indictment against the Applicant can be summarised

as under :

On 7th April, 2021, pursuant to the directions of the

superior officer to trace out the absconding accused and initiate

action against the persons who were consuming and peddling

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drugs, a team of ANC Kandivali Unit reached near Nirmal Rubber

and Board factory compound, Goregaon (East), Mumbai. A white

Hyundai Accent Car bearing Registration No.MH-04/JK-3508 was

found parked thereat, with parking lights on. The Applicant came

out of the said car with a green sack bag. As his movements

appeared suspicious, the members of the police party approached

him. The Applicant tried to flee away. The Applicant was

apprehended. In the meanwhile, the co-accused also attempted to

take out a white gunny bag from the car. The co-accused was also

apprehended. As the Applicant and the co-accused gave evasive

answers about the contents of those bags, a search was conducted

in the presence of the public witnesses. The bag which the

Applicant was carrying, contained 26 kilo Ganja. Whereas, 8 kilo

Ganja was found in the bag of the co-accused. Incriminating articles

were seized. Samples were collected. The accused came to be

arrested. Samples were sent for analysis. After completion of the

investigation, charge sheet came to be lodged against the Applicant

and the co-accused for the offences punishable under Sections

20(C) read with Section 8(C) and 29 of the NDPS Act.

3. The Applicant preferred an Application for bail before the

learned Special Judge (NDPS). By an order dated 19 th January,

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2022, the learned Judge rejected the Application, an opining, inter

alia, that the Applicant was found in conscious possession of

contraband material in commercial quantity. The interdict contained

in Section 37 of the NDPS Act, against the grant of bail was

attracted. Hence, the Applicant was not entitled to be released on

bail. The Applicant has, thus, preferred this Application seeking bail.

4. I have heard Mr. Vikrant Desai, learned Counsel for the

Applicant and Mr. Pethe, learned APP, for the State at some length.

With the assistance of the learned Counsel for the parties, I have

also perused the report under Section 173 of the Code of Criminal

Procedure, 1973 and the documents annexed with it.

5. The learned Counsel for the Applicant advanced a two-

pronged submission. First, the finding recorded by the Special Judge

that the Applicant was found in possession of Ganja in commercial

quantity, is unsustainable. It was submitted that the material

allegedly seized from the possession of the Applicant, in its entirety,

does not fall within the definition of Ganja contained in Section 2(iii)

(b) of the NDPS Act. Laying emphasis on the report of the Forensic

Science Laboratory dated 7th September, 2021, which indicates that

the articles forwarded for analysis, contained flowering / fruiting

tops, leaves, seeds and stalks, Mr. Desai would urge that in the

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absence of material to demonstrate that the flowering or fruiting

tops were of commercial quantity, the charge against the Applicant

becomes unsustainable.

6. Secondly, it was urged that there is a clear non-

compliance with the provisions contained in Sections 42 and 50 of

the NDPS Act. In view of the aforesaid infirmity, it cannot be said

that the interdict contained in Section 37 of the NDPS Act, comes

into play and, therefore, the Applicant deserves to be enlarged on

bail, urged Mr. Desai.

7. In opposition to this, Mr. Pethe, learned APP submitted

that both the grounds sought to be urged on behalf of the Applicant,

are neither well-grounded in facts nor sound in law. It was

submitted that the challenge to the prosecution on the count that

there is no distinct quantification of the flowering or fruiting tops, so

as to fall within the ambit of the definition of Ganja under Sections

2(iii)(b) of the NDPS Act, is wholly misconceived.

8. Secondly, non-compliance of the statutory requirements

under Sections 42 and 50 of the NDPS Act, sought to be urged on

behalf of the Applicant, according to Mr. Pethe, also does not merit

countenance, as it was a case of chance recovery in the course of

routine patrolling exercise. Thus, as the bar under Section 37 of the

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NDPS Act, was clearly attracted, the learned Special Judge

committed no error in rejecting the prayer for bail, submitted Mr.

Pethe.

9. Section 2(iii) (b) and (c) of the NDPS Act, reads thus :

"(iii) "Cannabis (hemp)" means -

(a).............

(b) 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; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;"

10. From the text of the aforesaid provisions, it becomes explicitly

clear that the essence of ganja is in flowering or fruiting top of the

cannabis plant (excluding the seeds and leaves when not

accompanied by the tops). It implies that if the seeds and leaves

are accompanied by the tops, the former form of the fruiting tops,

and are excluded only when they are not accompanied by the tops.

It all turns upon the question as to whether the seeds and leaves

were accompanied by the flowering or fruiting tops of the cannabis

plant.

11. In the aforesaid context, reverting to the facts of the

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case, especially the seizure panchanama, it becomes evident that in

the packets found in the bag which the Applicant was carrying,

there were flowering or fruiting tops of the cannabis plant along with

the stalks and seeds, as a whole.

12. Undoubtedly, the FSL report dated 27 th September, 2021

indicates that the articles sent for analysis, included the flowering

and fruiting tops, leaves, seeds and stalks and the analysis revealed

that those articles were ganja, falling under Section 2(iii) (b) of the

NDPS Act. Evidently, what were seized and sent for analysis, were

flowering or fruiting tops, leaves, seeds and stalks. In the face of

aforesaid material, at this juncture, it would be difficult to draw an

inference that the seeds and leaves which were seized and sent for

analysis, were not accompanied by the flowering or fruiting tops.

13. The learned Counsel for the Applicant placed reliance on

an order passed by this Court in the case of Laxman Shankar

Ghankute V/s. The State of Maharashtra 1 to bolster up the

submission that in the absence of independent quantification of the

flowering tops, it would be doubtful whether the quantity seized

from the accused, was commercial one.

14. The aforesaid order indicates that cannabis plants were

1 Criminal Bail Application No.2583 of 2019 dated 23rd June, 2021

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seized from the fields. The result of analysis should that the seized

crop was of cannabis plant. Evidently, what was seized by the police

was only the plants and there was no quantification of the flowering

tops. In that backdrop, it was observed that it was doubtful whether

the quantity which was seized from the Applicant therein, in such

circumstances, be said to be commercial one. It was further noted

that no ganja was found in the chemical analysis. Noting that there

was no separate record/document to show the quantity of the

flowering plants and, therefore, it was doubtful whether the offence

would fall in clause (b) of Section 20 of the NDPS Act, the accused

was ordered to be released.

15. Evidently, the aforesaid order turned on its own facts. It

was a case where the flowering tops were not at all seized. The

police claimed to have seized only the plants. In that view of the

matter, a doubt was expressed as to whether the offence would fall

under clause (b) of Section 20 of the NDPS Act.

16. The facts of the case at hand, are quite distinct. The

seizure panchanama expressly records that flowering or fruiting tops

of the cannabis plant, were found along with the leaves, seeds and

stalks, as a whole. The report of the FSL lends further support to

the prosecution case.

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17. Mr. Desai banked upon another order of this Court passed

in the case of Hari Mahadu Valse V/s. The State of Maharashtra 2,

wherein the following observations were made :

"4. The Panchanama prima facie reveals that the seized material contained green leaves, flower bud and seeds were weighing approximately 71 kg 190 gms. The seized material was forwarded for chemical analysis 10 days after the seizure. The delay per se is immaterial as prima facie there is nothing to show that the seal of the parcel, received by chemical analyzer was tampered with.

5. It is however, to be noted that the chemical analysis report reveals that the material forwarded for analysis contained flower buds with pieces of stalks, stems, leaves and seeds, without quantifying the weight of flower tops. This fact prima facie raises a doubt whether the ganja seized from the warehouse of the accused was of commercial quantity as to attract the provisions under Section 20 (C) of the NDPS Act."

18. The aforesaid observations are required to be

appreciated in the backdrop of the definition of ganja, adverted to

above.

19. Mr. Pethe, learned APP was justified in canvassing a

submission that the contention that to fall within the mischief of

commercial quantity under NDPS Act, only the weight of the

flowering / fruiting tops of the cannabis plant, is required to be 2 Bail Application No.2299 of 2019 dated 29th July, 2021

SSP 8/12 12 ba 951 of 2022.doc

considered, is not in consonance with law. Reliance was placed by

Mr. Pethe on judgment of the Supreme Court in the case of Shiv

Kumar Mishra V/s. State of Goa, through Home Secretary 3. The

observations of the Supreme Court in paragraphs 12 to 14 are

material and hence extracted below :

"12. Section 2(iii)(b) of the NDPS Act defines "ganja" as follows :

...........

13. An attempt has been made on behalf of the Appellant to convince us that the seized ganja was not accompanied by flowering or fruiting tops and hence, the weight of the seeds and the leaves would have to be excluded on account of the said definition, which would reduce the weight of the seized ganja considerably so as to exclude it from the definition of commercial quantity and attract a much lesser sentence than when the seized commodity was treated to be of commercial quantity.

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."

20. The Supreme Court has, thus, held in no uncertain terms

3 (2009) 3 SCC 797

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that the seized contraband articles consisted of greenish brown

coloured leafy and flowery parts of the plant, 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.

21. This judgment was followed by a learned Single Judge of

this Court in the case of Ilaibaksh Babamiya Mundhe V/s. The State

of Maharashtra and Anr.4 wherein an identical challenge was

repelled by the learned Single Judge by observing that "since

contraband was accompanied by flowering part of the plant along

with leaves, prima facie, it would be covered in terms of definition of

the expression "ganja" as given by Section 2(iii)(b) of the NDPS

Act."

22. The judgment in Shiv Kumar (Supra) was followed by

another learned Single Judge of this Court in the case of Rajesh

Surpal Pawara V/s. The State of Maharashtra5.

23. For the foregoing reasons, I am not persuaded to agree

with the submission of the learned Counsel for the Applicant that in

the absence of the quantification of the flowering or fruiting tops of

the cannabis plant, it cannot be said that 26 kg of contraband which 4 Bail Application No.1623 of 2021 dated 3rd Feb. 2022.

5     Cri. Bail Application No.2675 of 2021 dated 11th April, 2022

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was found in possession of the Applicant, does not satisfy the

description of the 'commercial quantity'.

24. On the aspect of the alleged non-compliance of Sections

42 and 50 of the NDPS Act, it may be apposite to note that the

challenge proceeds on the premise that there was a specific

direction by an empowered officer to arrest the absconding accused

and drug peddlers. The aforesaid premise, it seems, is incorrect.

What the FIR and the seizure panchanama indicate is that a general

direction was issued by the superior officer of ANC Kandivali Unit, to

carry out patrolling to apprehend the absconding accused and

initiate action against the drug peddlers and consumers. It is not

the case of the prosecution that there was a specific direction by the

competent officer, which was required to be recorded under sub-

Section (1) or forwarded to the immediate superior officer under

sub-Section (2) of Section 42 of the NDPS Act. As it turned out to be

a case of detection of the offences in the course of regular

patrolling, the provisions of Section 42 are, prima facie, not

attracted.

25. The second limb of the submission of Mr. Desai, based on

non-compliance with the provisions contained in Section 50 of the

NDPS Act, also does not merit acceptance, for the very reason that

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the Applicant came to be apprehended along with the contraband in

a chance recovery during the course of regular patrolling.

26. The aforesaid consideration impels me to hold that since

the Applicant was found in possession of commercial quantity of

ganja, the bar under Section 37 of the NDPS Act, comes into play

and the Applicant failed to make out a case which renders the

interdict inoperative, the Applicant is not entitled to be released on

bail.

27. Hence the order :

ORDER

(i) The Application stands rejected.

                                            ( N.J.JAMADAR, J. )




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