Shahnawaz Ahmed vs State Of Uttarakhand
2023 Latest Caselaw 3371 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL
          First Bail Application No. 361 of 2023

Shahnawaz Ahmed                                 ........Applicant

                             Versus

State of Uttarakhand                          ........Respondent


          First Bail Application No. 363 of 2023

Nasir Ahmed                                     ........Applicant

                             Versus

State of Uttarakhand                          ........Respondent
Present:-
      Mr. Siddhartha Sah, Advocate for the applicants.
      Mr. Amit Bhatt, D.A.G. for the State.



Hon'ble Ravindra Maithani, J. (Oral)

Since both the bail applications arise from the

same FIR, they are being decided by this common order.

2. Applicants Shahnawaz Ahmed and Nasir

Ahmed are in judicial custody in Case Crime No.0002 of

2023, under Sections 8/20/60 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 ("the Act"), Police

Station Bhatronjkhan, District- Almora. They have sought

their release on bail.

3. Heard learned counsel for the parties and

perused the record.

4. According to the FIR, on 15.01.2023, total

27.030 Kgs Ganja was recovered from the possession of

the applicants, which they were carrying in a bag.

5. Learned counsel for the applicants would

submit that, according to the FIR, the articles that were

allegedly recovered, do not confirm that it was Ganja, in

view of the definition of Ganja, as given under Section

2(iii)(b) of the Act; according to the FIR, leaves of Ganja

and seeds of Bhang were recovered.

6. Learned counsel for the applicants would also

submit that the jurisprudence with regard to the bail

under the Act has been widened by the Hon'ble Supreme

Court in a number of cases. He would refer to the

judgments in the cases of Mohd. Muslim alias Hussain

Vs. State (NCT of Delhi), (2023) SCC OnLine SC 352,

Hasubhai Kamabhai Thakor Vs. The State of Gujarat,

Special Leave to Appeal (Crl.) No. 2523 of 2023, Kunal

Dattu Kadu Vs. Union of India, 2022 SCC OnLine Bom

1770, Konstantin Isaev Vs. State as rep. Officer In Charge

and Another, 2023 SCC OnLine Bom 969, and Ibrahim

Khwaja Miya Sayeed @ Raju Vs. The State of

Maharashtra, in Bail Application no. 1296 of 2022,

passed by the Hon'ble High Court of Judicature at

Bombay.

7. It is argued that the applicants have been

arrested on 15.01.2023, in view of the allegedly recovered

material, which does not confirm under the definition of

Ganja.

8. Learned State Counsel would submit that

commercial quantity of Ganja was recovered from the

applicants, which has been confirmed by the Forensic

Science Laboratory Report.

9. 'Ganja' has been defined under Section 2(3)b of

the Act, which reads as hereunder:-

"2. Definitions.--In this Act, unless the context otherwise requires,--

(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)................................................................................ ................"

10. In the case of Mohd. Muslim (supra), the

Hon'ble Supreme Court, while discussing the provisions

of Section 37 of the Act, has observed that. "Grant of bail

on ground of undue delay in trial, cannot be said to be

fettered by Section 37 of the Act, given the

imperative of Section 436A which is applicable to

offences under the NDPS Act too." In the case of Mohd.

Muslim (supra), the arrest was made in the year 2015,

and the appellant in that case has been in custody for

over 7 years and 4 months, when the matter was decided.

11. In the case of Hasubhai Kamabhai (supra), no

principle of law, as such, has been laid down by the

Hon'ble Supreme Court. Having considered the facts that

the State had not filed counter affidavit in that case and

the period of custody in that case, the bail was granted to

the appellant of that case. The Hon'ble Supreme Court

observed that, "at best the petitioner can be said to

have supplied Ganja seeds for plantation."

12. In the case of Konstantin Isaev (supra), in Para

8 of the judgment, the Hon'ble Supreme Court has noted

the discrepancies in the material that has been seized and

the material that has been analysed, and noted that the

allegedly recovered quantity would not bring the

substance within the purview of term Ganja, the

contraband.

13. In the case of Ibrahim Khwaja (supra), also, In

Para 9, the Hon'ble High Court of Judicature at Bombay,

has noted the definition of Ganja, as given under the Act,

and has noted that, "A plain reading of this section

would reveal seeds and leaves would not be covered

under the definition of 'Ganja' unless they are

accompanied by the flowering or fruiting tops of the

Canabis plant."

14. In the instant case, it is categorically written in

the FIR that Ganja was recovered from the applicants. It

records leaves of Ganja and seeds of Bhang. Whether the

seeds and leaves were accompanied by tops, as such, it is

not stated in the FIR. It also does not reveal that there

were no tops of the plants, when it was recovered. The

Forensic Science Laboratory report confirms that the

allegedly recovered article was Ganja.

15. At this stage, this Court cannot go deeper into

the scrutiny of the material.

16. Having considered, this Court is of the view

that there is no ground, which may entitle the applicants

to bail. Accordingly, the bail applications deserve to be

rejected.

17. Both the bail applications are rejected.

(Ravindra Maithani, J.) 07.11.2023 Ravi Bisht