High Court

Legal Reasoning

(1) ba-47-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.47 OF 20241.Shaikh Rahim S/o Shaikh Miramoddin,Age: 60 years, Occu: Driver,R/o. Indalwai Mandal Indalwai,Tq and Dist. Nizambad.2.Shaikh Karim S/o Shaikh Khadarpasha,Age: 33 years, Occ: Labor,R/o. Nasim Colony Ekaminar Masjid,Tq and Dist. Nizambad...ApplicantsVersusThe State of Maharashtra,Through Bhokar Police Station, Dist. Nanded...Respondent …Mrs. Aishwarya C. Deshpande h/f Mr. C. C. Deshpande, Advocatefor the Applicants.Mr. P. S. Patil, Addl. PP for Respondents-State. … CORAM : S. G. CHAPALGAONKAR, J.RESERVED FOR ORDER ON: 19th JANUARY, 2024PRONOUNCED ORDER ON : 23rd JANUARY, 2024.ORDER:-1.The applicants seek regular bail in connection withCrime No.308/2023 registered with Bhokar Police Station, Dist.Nanded for the offences punishable under Sections 8(C) and 20(B)(II) of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short ‘N.D.P.S., Act, 1985’).2.The investigation was set in motion on the basis ofinformation given by Nanasaheb Dnyandev Ubale, PoliceInspector, Bhokar Police Station. In nutshell it is alleged that on25.08.2023 a secrete information was received that Ashok Leylandvehicle bearing Registration No.TS-36-T-4202 was carryingcontraband/ganja. Accordingly, steps were taken to conduct raid. (2) ba-47-2024.odtThe vehicle was apprehended. On enquiry, driver introducedhimself as Shaikh Rahim s/o Shaikh Miramoddin and hiscompanion introduced himself as Shaikh Karim s/o ShaikhKhadarpasha. When search of the vehicle was taken, white colourgunny bag was found containing 24 packets of leafs, buds, seedslike ganja. It was weighing about 52.500 kg. The vehiclealongwith contraband was seized. The occupants of thevehicle/accused persons were arrested. The investigationprogressed. The charge-sheet came to be filed. The applicantsmoved for grant of regular bail before the Sessions Court,however, their prayer came to be rejected vide order dated19.12.2023.3.Mrs. Deshpande, learned Advocate appearing for theapplicants would submit that the applicants are employees on thevehicle. They were not in conscious possession of the contraband.They have been falsely implicated in the aforesaid crime. Shewould submit that the quantity of the seized material was 52 kg.However, it was the mixture of the raw cannabis plants includingtoppings, plants, flowering, fruiting tops etc. She would submitthat in view of the definition of ganja as per Section 2(b)(c) of theN.D.P.S. Act, 1985, the flowering or fruiting tops of the cannabisplants (excluding the seeds and leaves when not accompanied bythe tops) can be termed as ganja. She would further submit thatthere are no criminal antecedents reported against the applicants.The applicants are behind the bar for more than five months. Theinvestigation in the matter is complete and further detention ofthe applicants would not be necessary. In support of hercontentions she relies upon the orders passed by this Court incase of Shaikh Mohammad Shaikh Amir Vs. The State ofMaharashtra (Bail Application No.1 of 2020 dated 11.02.2020),Dagdiram S/o Devrao Mundhe Vs. The State of (3) ba-47-2024.odtMaharashtra (Bail Application No.637 of 2021) with anotherconnected Bail Application dated 20.08.2021, Ibrahim KhwajaMiya Sayyed @ Raju Vs. The State of Maharashtra (BailApplication No.1296 of 2022 dated 17.03.2023), SantoshPandurang Parte Vs. Amar Bahadur Maurya and Anr. (BailApplication No.4125/2021 dated 19.07.2023) and SubhashBaburao Patil Vs. The State of Maharashtra (BailApplication No.1363/2023 dated 24.08.2023).4.The learned Addl. P.P., however, strongly opposes theprayer contending that the quantity of ganja found in possessionof the applicants is more than 20 kg, as such, it constitutecommercial quantity. The bar under Section 37 of the N.D.P.S.Act, 1985 would attract in such cases. He would further point outthat the applicants are resident of State of Andra Pradesh. Ifthey are released on bail, the possibility of absconding cannot beruled out. However, he fairly concedes that no criminalantecedents have been reported against the applicants. 5.Having considered submissions advanced, it can begathered that the investigation in the matter is completed andcharge-sheet is filed. The inventory certificate issued by theJudicial Magistrate First Class, Umri dated 29.08.2023 is part ofcharge-sheet, which indicates that what was seized was greenishbrown leaves, which were dried. The contents of the FIR showsthat the seized material was containing the mixture of the leaves,buds, fruiting, seeds etc. The total weight of the seized article was52.500 kg.6.If the definition of ganja is considered, it can beobserved that the seized articles are not comparable with theganja as defined under Section 2(b)(c) of the N.D.P.S. Act, 1985. (4) ba-47-2024.odtThe definition stipulates flowering or fruiting tops of cannabisplants (excluding the seeds and leaves when not accompanied bythe tops) as ganja. The contents of the FIR itself shows that thematerial seized was including the seeds, leaves and other parts ofthe plants. In absence of segregation of the contraband, it wouldbe difficult to hold that the entire seized muddemal passesdefinition of the ganja in terms of the provisions of N.D.P.S. Act,1985. It is difficult to hold that seized articles constitutescommercial quantity of contraband i.e. Ganja as defined.Therefore, Section 37 of the N.D.P.S. Act, 1985 would not attractin the facts of this case.7.The careful reading of the contents of the FIRindicates that the vehicle carrying gunny bag containing corn andother articles was apprehended by the police and the applicantswere found in the cabin. One of them was driver and other washis companion. The personal search was not taken. The goodswere laying in the rear side of the vehicle. The investigation inthe matter is complete. The charge-sheet is filed. The applicantsare behind the bar for more than five months. The trial wouldtake its own course. No criminal antecedents are reported todiscredit the applicants. In that view of the matter, no purposewould be served by continuing the detention of the applicants. Assuch, case is made out for grant of bail, however, subject tostringent conditions. Hence, the following order:ORDER(i)Bail Application is allowed.(ii)The applicants, Shaikh Rahim S/o Shaikh Miramoddin andShaikh Karim S/o Shaikh Khadarpasha be released on bail inCrime No.308/2023 registered with Bhokar Police Station, Dist.Nanded for the offences punishable under Sections 8(C) and 20(B) (5) ba-47-2024.odt(II) of the Narcotic Drugs and Psychotropic Substances Act, 1985on furnishing P.B. and S.B. of Rs.1,00,000/- (Rs.One Lakh only)each alongwith local surety for the like amount on followingcondition:a.The applicants shall not tamper with the prosecutionevidence in any manner.b.The applicants shall furnish their address proofs, Aadharcards and particulars of the local police station having jurisdictionover their place of residence.c.The applicants shall attend each and every effective date ofhearing before the Trial Court.(iii)Application is disposed of. (S. G. CHAPALGAONKAR)JUDGEDevendra/January-2024