Gujarat High Court
Nareshbhai Kalabhai Gadhiya Koli vs State Of Gujarat on 23 February, 2023
Bench: Ilesh J. Vora
R/CR.MA/16827/2022 ORDER DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16827 of 2022
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NARESHBHAI KALABHAI GADHIYA KOLI
Versus
STATE OF GUJARAT
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Appearance:
DENISH V MAVADHIYA(9207) for the Applicant(s) No. 1
MS SHLOKA PANDYA (10520) for the Applicant(s) No. 1
MR DHAVAN JAISWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/02/2023
ORAL ORDER
1. This successive bail application is filed by the applicant
accused in connection with the FIR being No. 11186004220256
of 2022 registered with Prabhas Patan Police Station, Dist.
Gir-Somnath, for the alleged offences punishable under Sections
8(c), 20(a)(1) of the Narcotics Drugs and Psychotropic Substances
Act, 1985.
2. Heard Mr. D.V.Mavadhiya, learned counsel for the applicant
and Mr. Dhavan Jaiswal, learned APP for the State.
3. This bail application is filed after filing of the chargesheet.
4. Brief facts of the case are that, when the Police Inspector and
other police officials of Prabhas Patan Police Station were on
patrolling, they received a credible information regarding cultivation
of cannabis plants along with the other plantations in the agriculture
land by the present applicant at the place mentioned in the case
R/CR.MA/16827/2022 ORDER DATED: 23/02/2023
papers. Raid was conducted. During the raiding process, it was
found that the applicant had grown cannabis plants in his farm land
and same was examined by the mobile FSL at the place, which had
been seized and recovered as per the panchnama drawn in the
presence of panchas. The quantity of the seized substance is
commercial quantity (23.400 Kgs.). The applicant herein arrested on
10.06.2022 and accordingly, chargesheet came to be filed for the
offence as referred above.
5. Learned counsel Mr. Mavadhiya would submit that, the place
from where narcotics substance seized is not owned by the
applicant nor it is belonging to him. He would further submit that,
the word "cannabis plant" means any plant of the genus cannabis,
whereas, cannabis (hemp) means Ganja i.e. the flowering or fruiting
tops of the cannabis plants (excluding the seeds and leaves when
not accompanied by the tops). It is in this context, he submits that,
at the time of seizure, the seeds and leaves were not segregated
from the flowering or fruiting tops of cannabis plants and therefore,
the total weight considered by the prosecution is not acceptable in
law and therefore, the seized quantity does not fall under the
category of commercial quantity.
6. In the aforesaid facts, learned counsel would submit that, the
applicant is in custody since 10.06.2022 and still trial is not
commenced and considering the technical issue raised hereinabove,
the discretion may kindly be exercised enlarging the applicant on
bail.
7. On the other hand, ld. State Counsel appearing for the State
vehemently opposed the bail application contending that, the
applicant was present at the spot and at his instance, the
R/CR.MA/16827/2022 ORDER DATED: 23/02/2023
contraband substance found and seized by the authority. He would
further submit that, whether total weight of the substance is
relevant or the percentage of flowering or fruiting tops of cannabis
plants, would require to be considered at the time of trial. Thus, he
would submit that, the seized contraband is of commercial quantity
and considering the restrictions imposed by Section 37 of NDPS Act,
no case is made out for grant of bail.
8. This court has considered the rival submissions addressed
before this Court and perused the material placed on record in form
of chargesheet.
9. It is the first contention of Mr. Mavadhiya, learned counsel for
the applicant that the land in question is not belonging to the
applicant and as such no evidence collected to establish the
conscious possession of the applicant. Having gone through the
material placed on record, except his presence, nothing brought on
record to establish the ownership of the land. The prosecution could
have produced the revenue record to establish the possession of the
land.
10. The second contention is to the effect that total weight of
cannabis plants cannot be considered while determining the
quantity of contraband substance.
11. To deal with the issue, it is necessary to refer to and rely upon
the definition of cannabis (hemp). Section 2(iii)(b) says that ganja
that is flowering, or fruiting tops of the cannabis plants but does not
include the seeds and leaves when not accompanied by the tops.
The word cannabis plant means any plant of the genus cannabis. In
E.Michel Raja vs. Intelligence Officer [(2008) 5 SCC 161], the
Apex Court, held that while determining the small quantity and
commercial quantity, neutral substance in the mix not to be taken
R/CR.MA/16827/2022 ORDER DATED: 23/02/2023
into consideration. However, in a very recent judgment in case of
Hira Singh Vs. Union of India, [(2020) SCC Onliine SC 382],
the Apex Court overruled the judgment of E. Michel Raja and held
that while determining small quantity or small quantity the whole
mixture (active content plus neutral mix) has to be taken into
consideration.
12. This Court is of considered opinion that, the contention of
ownership of the land is required to be accepted and therefore,
without expressing on merits of the case, when the applicant does
not have any past record and trial would take considerable time,
this Court is inclined to enlarge the applicant on bail.
13. Hence, present application is allowed and the applicant is
ordered to be released on regular bail in connection with the FIR
being No. 11186004220256 of 2022 registered with Prabhas
Patan Police Station, Dist. Gir-Somnath, on executing a
personal bond of Rs.10,000/- (Rupees Ten thousands only) with one
surety of the like amount to the satisfaction of the learned Trial
Court and subject to the conditions that he shall;
No. Conditions
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injuries to the interest of the
prosecution;
(c) surrender passport, if any, to the lower court within a
week;
(d) not leave India without prior permission of the
Sessions Judge concerned;
(e) furnish latest address of residence to the
Investigating Officer and also to the Court at the time
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of execution of the bond and shall not change the
residence without prior permission of the trial Court;
14. The authorities shall release the applicant if he is not required
in connection with any other offence. If breach of any above
condition is committed, the Sessions Judge concerned shall take
appropriate action or issue warrant against the applicants. The bail
bond to be executed before the learned trial Court having
jurisdiction to try the case. Nothing stated hereinabove, shall
tantamount to the expression of any opinion on the merits of this
case. Rule is made absolutely. Direct Service is permitted.
(ILESH J. VORA,J)
SUCHIT
