Sri. Dongrisab S/O Babasab Alias ... vs The State Of Karnataka
2022 Latest Caselaw 11439 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 18 T H DAY OF AUGUST 2022
                                  BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

            CRIMINAL PETITION No.101982/2022

BETWEEN:

SRI. D ONGRISAB S/O BABASA B
@ BAVASAB ARAMANI,
AGE: 52 YEARS , OCC: COLLIE,
R/O.SIDDA PUR VILLAGE,
TQ.BILA GI, DIST.BAGALKOTE.
                                      ...PETITIONER
(BY SHRI SHIVAK UMAR S.BADAWADA GI, ADVOCAT E)

AND:

THE STATE OF KARNATAKA,
THROUGH BI LAGI POLI CE STATION,
NOW REPRES ENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF K ARANATAKA,
DHARWAD, BENCH AT DHARWD .
                                                               ... RES PONDENT
(BY SHRI PRASHA NTH V. MOGA LI, HCGP)

       THIS CRIMINAL PETITION IS FILED U/SEC.439 OF T HE
CODE OF CRIMINAL PROCEDURE READ WITH SECTION 37 OF
THE NARCOTIC D RUGS AND PSYCHOTROPI C S UBSTA NCES ACT
SEEKING TO ENLA RGE THE PETITIONER ON BAIL IN SPECIAL
CASE    NO.20/2022       (CRIME     NO.6/ 2022            OF   BILAGI   POLICE
STATION)    REGISTERED           FOR       THE      OFFENCES      PUN ISHABLE
U/SEC.20(a) ,   20( B)   ( i),   20(B)      ( ii)   (C)   OF   THE   N ARCOTIC
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DRUGS AND PSYCHOTROPIC S UBST ANCES ACT , 1985, PENDING
ON THE FILE OF PRINCIPA L DISTRICT AND SESSIONS JUDGE,
BAGALKOTE, IN T HE INTEREST OF J USTICE.


       THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE F OLLOWING:


                                        ORDER

This petition is filed by accused under Section 439 of

the Code of Criminal Procedure, 1973 (hereinafter

referred to as the 'Cr.P.C.', for brevity) read with Section

37 of The Narco tic Drugs A nd Psychotropic Substances Act

seeking bail in Bilagi Police Station Crime No.6/2022

registered for the offences punishable under Sections

20( a), 20(b)( i) , 20( b)( ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 ( hereinafter referred to

as 'NDPS Act', for brevity), pending in Special Case

No.20/2022, on the file of learned Prl. District and

Sessions Judge, Bagalakote.

2. The case of the prosecution is that, one Sri S.S.

Kamatagi, Police Inspector, Bilagi Police Station, has

lodged complaint contending that, on 09.01.2022 at about

2:30 pm, when he was in the police station, he received

credible information that a person has cultivated and

stored ganja in his land and selling the same for his

benefit. In pursuance of the said information, the

complainant secured panch witnesses, Gazetted Officer

and after obtaining permission from his Higher Officer

went to the said land and apprehended the

petitioner/accused. During enquiry, the petitioner has

admitted that he has cultivated the ganja for selling the

same. Upon search, it was found that the accused has

stored 162kgs of ganja in 7 bundles and 25kg of ganja in

a manure bag and 10kg 600g of dried leaves. Thereafter,

the complainant has taken the samples and seized the

remaining ganja under panchanama in the presence of the

panchas and arrested the petitioner/accused and lodged

the complaint. On the basis of the said complaint, a case

came to be registered in Crime No.6/2022 in Bilagi Police

Station. The accused, who is arrested, has been

remanded to judicial custody. The Police after

investigation filed charge sheet. The petitioner/accused

filed bail application in Crl.Misc. No.229/2022 and the

same came to be rejected by the learned Principal District

and Sessions Judge, Bagalkote, by order dated

30.04.2022. Therefore, the petitioner is before this Court

seeking bail.

2. Heard the arguments of the learned counsel

appearing for the petitioner and the learned High Court

Government Pleader for the respondent-State.

3. It would be the contention of the learned

counsel for the petitioner that, whatever seized is

cannabis plants which attracts an offence under Section

20(b)(i) of NDPS Act. It is his further submission that,

the entire seized material does not come under the

definition of "ganja" as provided under Section 2(iii)(b)

of NDPS Act. It is his submission that, the Investigating

agency has not separated the flowering or fruiting tops of

cannabis plants to say it is the ganja. The entire seeds,

leaves and stem have been weighed. It is his further

submission that what has been seized is a cannabis plant

and not ganja alone. He placed reliance on the decision

of the this Court in the case of Srin ivasalu v. State of

Karnatak a reported in 2019 SCC Online Kar 2711. It is

his further submission that the offence which is attracted

is Section 20(b)(i) of NDPs Act and the punishment for the

same is, imprisonment for a term which may extend to 10

years and shall also be liable to fine which may extend to

Rs.1,00,000/-. As charge-sheet is filed and investigation

is over, the petitioner is not required for any custodial

interrogation. With this he prayed to allow the petition.

4. Per contra, learned High Court Government

Pleader would contend that what has been seized from the

possession of the accused is a commercial quantity of

ganja and therefore, the petitioner is not entitled for

grant of bail as punishment prescribed for the same is

imprisonment for life for a term not les than 10 years but

which may extent to 20 years and shall also be liable to

with fine which shall not be less than Rs.1,00,000/- but

which may extend to Rs.2,00,000/-. It is his further

submission that if the petitioner is granted bail, he will

involve in commission of similar offence and threaten the

prosecution witnesses and flee from justice. With this, he

prayed to reject the petition.

5. Having regard to the submission made by the

learned counsel for the petitioner and the learned High

Court Government Pleader, this Court has gone through

the charge sheet records.

6. The complainant has conducted a raid in the

land of this petitioner where he had grown ganja plants.

The complainant has seized (i) ganja plants which was

totally weighing 1 quintal 62kg 400g (ii) half wet ganja

leaves weighing 2kg 300g and (iii) dried ganja leaves

weighing 10kg 600g. The total quantity seized is 198 kg

300g. This Court in Sr iniv asalu's case (supra) has held

as under:

"11. As s tate d supra, the co mplainant Ex cise Of f icer has se ized 535 G anja plants we ighing 900 Kgs. It is specif ically s tate d that the G anja plan ts were re move d

with roo ts and the entire G anja plan ts were we ighed and f ound to be 900 Kgs. Even when the sample was taken and sent to FSL f or examination the G anja plants includ ing le aves, s eeds, f lo wer buds were sent. In the case of K.K.Re jji s tated supr a this Co ur t has observed in par a No.10 of the order as f ollo ws:

"10. In the f irs t ins tance, we have to go on the pre mise that prosecution charge ag ains t the accused is based on alle ged se izure of Ganja. G anja is def ined under the prov is io n of NDPS Act as f ollo ws. -

2( iii)(b) G anja, that is, the f lo wer ing o r f ruiting tops of the cannabis plant (exclud ing the seeds and le aves when no t acco mpanied by the to ps), by whate ver name the y may be kno ws or des ignated.

Fro m this def initio n it is cle ar that ' Ganja' would me an only the f lowe r ing or f ruiting to ps exclud ing the le aves as also seeds.

In the ins tan t cas e, the prosecu tion has produced se izure panchanama-Ex.P.5, to sho w what was se ized. It re ads as f ollo ws.-

"(1)......

(2).....

(3 ) 2 UÉÆÃtÂaîzÀ°è PÀZÁÑ UÁAeÁ VqÀUÀ¼À vÉÆ¥Àà®Ä ¸ÀĪÀiÁgÀÄ 10 PÉ.f."

Fro m the ex tr acted por tion it is seen what the of f icers have se ized are cannabis plants. The descr ip tion of seize d product s ho ws it had s te ms, le aves, br anches perhaps even the f ruiting par ts. But the ques tion is can the s te m, le aves, br anches be ter med as 'G anja' in v ie w of def initio n ref erred to above. The ans wer is obv iously in the negative, because the Act its elf def ines what is Ganja. No t only the raid ing par ty but the Inves tig atio n Off icer has no t separ ated f ruiting to ps or f lo wer ing f ro m the G anja plants bef ore we ighing. What has been done is they have we ig hed the entire plan ts to record the we igh t as 10 kgs. S ince the le aves, ste m and br anches we re also par t of the we ig ht, ( mass) there was no def inite we ig ht of actual f lo wer ing or f ruiting par t of the plan t (def ined as Ganja). Hence the ev idence produced bef ore the prosecu tion to sus tain the charge is to tally v ague. Of the who le plant is se ized, the n it wi ll only be a cannabis plant and no t ganja. "

7. What is seized in the present case is also

cannabis plants and not ganja alone. Admittedly, stem,

leaves, branches were not separated and the ganja was

not separately weighed. Section 2(iii)(b) of NDPS Act

defines "ganja, that is, the flowering or fruiting top of

cannabis plants (excluding the seeds and leaves when not

accompanied by the tops) by whatever name they may be

known or designated". Therefore, the complainant/Police

Inspector ought to have separated the flowering or

fruiting tops of the cannabis plants in order to bring the

same under the definition of 'ganja' which is punishable

under the NDPS Act which is not done in the present case .

Therefore, as held by this Court in the judgment stated

supra, it has to be held that what is seized is cannabis

plants and not ganja. In case, the flowering or fruiting

tops were separated and weighted separately, the

quantity would have been different and it would have been

less than the commercial quantity also. Even accepting

the submission made by the learned Government Pleader

that there is violation of Section 20(a) of NDPs Act

wherein ganja plants were grown without the licence or

permission, the alleged offence is punishable with

imprisonment which may extend to 10 years with fine

which may extend to Rs.1,00,000/-. The petitioner is the

permanent resident of Siddapur village, Bilagi taluk,

owning immoveable property. Under these circumstances,

this Court is of the considered opinion that the petitioner

may be enlarged on bail by imposing stringent conditions.

Accordingly, I proceed to pass the following:

ORDER

The petition filed under Section 439 of Cr.P.C. is

allowed. Consequently, the petitioner/accused shall be

released on bail in Crime No.6/2022 of Bilagi Police

Station subject to the following conditions:

i) The petitioner/accused shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.

ii) The petitioner/accused shall not threaten or try to tamper with the prosecution witnesses in any manner.

iii) The petitioner/accused shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.

Sd/-

JUDGE Am & Kmv from para 2 till end