Karnataka High Court

Mohmmed Imran S/O. Usman Sab vs The State Of Karnataka on 19 January, 2022

Bench: Dr. H.B.Prabhakara Sastry

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

       DATED THIS THE 19th DAY OF JANUARY, 2022

                         BEFORE

 THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

           CRIMINAL PETITION NO.101664/2021


BETWEEN:
MOHMMED IMRAN S/O. USMAN SAB
AGED ABOUT 28 YEARS,
OCC: GOLD SMITH
R/O. W.NO. 5, IN FRONT OF MASSIDI
BANDIMOTT, BALLARI.
                                         .. PETITIONER
(BY SRI. M. AMAREGOUDA, ADV.)

AND:

1 . THE STATE OF KARNATAKA
BY COWL BAZZAR POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH AT DHARWAD.

2 . SHUBASH CHANDRA
AGE 40 YEARS, OCC: POLICE OFFICER,
R/O P.I. COWL BAZZAR, POLICE STATION,
BALLARI
                                       .. RESPONDENT
(BY SRI. RAMESH B. CHIGARI, CHGP FOR RESPONDENT No.1.
RESPONDENT No.2 IS SERVED AND UNREPESENTED.)

      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE PROCEEDINGS AGAINST THE
PETITIONER/ACCUSED NO.2 IN SPL.CASE NO.1068/2020 PENDING
IN THE COURT OF PRL. DISTRICT AND SESSIONS JUDGE AT
                                                 Crl.P.No.101664/2021


                              :2:


BALLARI IN CR.NO.122/2020 FOR THE ALLEGED                  OFFENCE
PUNISHABLE U/S 20(B) (ii) (b) OF NDPS ACT.

     THIS PETITION COMING ON FOR ADMISSION, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

The present petitioner, who has been arraigned

as accused No.2 in Crime No.122/2020 of

respondent No.1-Police Station for the offence

punishable under Section 20(b)(ii)(B) of the Narcotic

Drugs and Psychotropic Substances Act, 1985,

(hereinafter for brevity referred to as 'NDPS' Act), has

preferred this petition seeking quashing of the entire

proceedings in Special Case No.1068/2020 pending on

the Court of Principal District and Sessions Judge at

Ballari (hereinafter for brevity referred to as 'Special

Court'), against him.

2. The summary of the case of the complainant-

Police (respondent No.1) is that, based on a credible Crl.P.No.101664/2021

information obtained by the Police Officer of respondent

No.1 Police Station on 16.09.2020 at 9:30 am that,

some people were selling ganja in a public place near

Kavya Bar near the Government Bus Stand, Ballari,

within the limits of respondent No.1-Police Station, the

said Police Officer passing on the said information to his

Higher Authorities and obtaining their permission, joined

by the Gazetted Officer, conducted a raid upon the place

which was a public place in the form of a Government

Bus Stand and observed from a distance that including

the accused, three people were selling ganja to the

public and when conducted raid, two of them including

the present petitioner were caught red handed and

couple of the customers, who were purchasing ganja

from them, were also detained by the Police in the spot.

By enquiry, it was revealed to them that without any

licence or permit the accused were selling ganja.

Following due process of law, when they were searched, Crl.P.No.101664/2021

the goods, which, prima facie, could be noticed as ganja

and in total measuring 1300 grams were seized from

their possession by drawing seizure panchanama in the

presence of the panchas and Gazetted Officer. Based

upon that, a complaint was registered against the

accused and after investigation, charge-sheet also came

to be filed for the offence punishable under Section

20(b)(ii)(B) of NDPS Act.

3. The first respondent is being represented by

the learned High Court Government Pleader.

The second respondent though served has

remained absent.

4. Though this matter was listed for admission,

however, with the consent from both side, the matter is

taken up for its final disposal on merits.

5. Heard arguments from both side.

Crl.P.No.101664/2021

6. Learned counsel for the petitioner in his

argument canvassed mainly on one point that even

according to the complainant-Police, the alleged seized

goods was not just flower and buds but it was including

the leaves and seeds. As such, the alleged goods in its

entirety would not fall under the description of 'ganja' as

defined under Section 2(iii)(b) of NDPS Act. Therefore,

when the prosecution is not clear as to how much of the

quantity in them, is ganja, the trial against the accused

cannot be proceeded. As such, the criminal proceedings

against the petitioner deserves to be quashed.

7. Per contra, learned High Court Government

Pleader appearing for respondent No.1 submitted that

the goods were seized in a public place by following the

due process of law and in the presence of a Gazetted

Officer, the alleged goods was weighed in the spot and it

was found that, it was, in total, weighing 1300 grams.

Though, it contains dried leaves and seeds also, the Crl.P.No.101664/2021

exact quantity of the flower and buds have to be

ascertained during the course of the trial and also based

upon the FSL report, as such, it is highly premature for

discharging the petitioner or quashing the complaint

against the present petitioner.

8. A perusal of the charge-sheet material placed

before this Court with the memorandum of petition

would go to show that the alleged seizure was drawn in

a public place which is said to be in the bus stand of

Ballari adjacent to the business establishment by name

Kavya Bar. It is in the said public place, the accused are

said to have been selling ganja to the purchasers

keeping the said ganja upon the motorcycle said to have

been brought by them. According to the seizure

panchanama, certified copy of which is also produced

along with the petition, shows that the complainant-

Police conducted a raid in that place joined by the

Gazetted Officer and Panchas. Panchanama shows that, Crl.P.No.101664/2021

two among the alleged six accused were caught red

handed and they were subjected to search by the

Gazetted Officer by disclosing his identity and following

due process of law, which are required to comply with,

prior to search and seizure. It is only during the search,

they noticed the alleged possession of ganja by the

accused and when it was weighed in the spot shown to

have been measuring 1300 grams. As such, prima facie

and at this stage through the alleged scene of offence

and seizure panchanama, it can be noticed that the

alleged seizure is said to have been made in a public

place.

9. The quantity of goods according to the said

panchanama is shown to be in total weighing 1300

grams. The learned counsel for the petitioner submitted

that admittedly, the said quantity included dried leaves,

seeds etc, as such, the actual weight of the flowers and

buds cannot be ascertained. Hence, the criminal Crl.P.No.101664/2021

proceedings against the petitioner deserves to be

quashed. He contended that 'ganja' does not include

dried leaves and seeds, as defined under Section

2(iii)(b) of NDPS Act. In his support, he relied upon the

judgment of a Co-ordinate Bench of this Court in

K.K.Rejji and others v. State by Murdeshwar Police

Station, Karwar reported in 2010 (5) KCCR 4163.

10. Section 2(iii)(b) defines 'ganja' in the

following terms:

" 2(iii) "cannabis (hemp)" means-

(a) xxx

(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."

11. A Co-ordinate Bench of this Court in

K.K.Rejji's case (supra) while dealing with Section

20(b)(i) of NDPS Act read with Section 36-A and

Sections 147, 447 and 427 read with Section 149 of IPC, Crl.P.No.101664/2021

was pleased to observe that the term 'ganja' clearly

means, only the flowering or fruiting tops excluding the

leaves and seeds. It further observed that in the case

before it, since the Investigating Officer weighed the

whole plant and since the flowering or fruiting part was

not removed, the actual quantity of ganja could not be

ascertained whether it was lesser than the small

quantity or commercial quantity.

12. In the instant case, even though the total

quantity of the alleged goods is said to be weighing

1300 grams but what exactly the actual weight of the

flowering or bud portion of it, has to be ascertained only

during the course of the trial, as contended by the

learned High Court Government Pleader. Further, our

Hon'ble Apex Court in the case of Shiv Kumar Mishra v.

State of Goa through Home Secretary reported in

(2009) 3 Supreme Court Cases 797 at paragraphs 14

and 15 was pleased to observe as below:

Crl.P.No.101664/2021

"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 cannabis plant since the seized ganja was accompanied by the flowery parts of the plant.

15. As far as exclusion of the moisture content of the seized ganja is concerned, there is nothing in the NDPS Act to suggest that when the weight of a quantity of ganja is to be ascertained, the moisture content has to be separately ascertained and excluded. On the other hand, we are of the view that the weight of the contraband would be the weight taken at the time of seizure."

13. A reading of the above finding given by the

Hon'ble Apex Court goes to show that 'ganja' would

include the seeds and leaves of the cannabis plant once

they are accompanied by the flowering parts of the

plant. Therefore, since in the instant case, the seized

goods, though, had contained leaves, seeds, but since it

was also accompanied by the flowering tops, it falls

within the definition of the expression 'ganja'.

Crl.P.No.101664/2021

14. Since in K.K. Rejji's case (supra), the

judgment of the Hon'ble Apex Court in Shiv Kumar

Mishra's case (supra) had not been considered, that