High Court
Legal Reasoning
BA 2009/248held that only the quantity of the offending article is to be taken intoconsideration for the purpose of punishment. If has been mixed with anyother substance, which is non-offending substance, then not the whole bulkis to be taken into consideration and that the punishment mush be gradedin relation to the quantity of the offending article only.17.The law as laid down in the case of E. Maichel Raj (supra) wasreferred to the larger bench and in the case of Hira Sing and Anr. Vs. Unionof India and Anr. Reported in (2020) 20 SCC 272, the larger bench of theSupreme Court noted the questions referred to it as under :-“(a) Whether the decision of this Court in E. Micheal Raj(supra) requires reconsideration having omitted to take noteof entry no. 239 and Note 2 (two) of the notification dated19.10.2001 as also the interplay of the other provisions ofthe Narcotic Drugs and Psychotropic Substances Act, 1985(for short “the NDPS Act”) with Section 21? (b) Does the impugned notification issued by the CentralGovernment entail in redefining the parameters forconstituting an offence and more particularly for awardingpunishment? (c) Does the NDPS Act permit the Central Government toresort to such dispensation? (d) Does the NDPS Act envisagethat the mixture of narcotic drug and seizedmaterial/substance should be considered as a preparation intotality or on the basis of the actual drug content of thespecified narcotic drug?(e) Whether Section 21 of the NDPS Act is a stand alongprovision or intrinsically linked to the other provisionsdealing with “manufactured drug” and “preparation”containing any manufactured drug?” BA 2009/24918.The Supreme Court while considering the above issues, has answeredthe issues in the case of Hira Singh (supra) as under :-“(I). The decision of this Court in the case of E. Micheal Raj(Supra) taking the view that in the mixture of narcotic drugs orpsychotropic substance with one or more neutral substance(s),the quantity of the neutral substance(s) is not to be taken intoconsideration while determining the small quantity or commercialquantity of a narcotic drug or psychotropic substance and only theactual content by weight of the offending narcotic drug which isrelevant for the purpose of determining whether it wouldconstitute small quantity or commercial quantity, is not a goodlaw; (II). In case of seizure of mixture of Narcotic Drugs orPsychotropic Substances with one or more neutral substance(s),the quantity of neutral substance(s) is not to be excluded and tobe taken into consideration along with actual content by weight ofthe offending drug, while determining the “small or commercialquantity” of the Narcotic Drugs or Psychotropic Substances;(III). Section 21 of the NDPS Act is not stand-alone provision andmust be construed along with other provisions in the statuteincluding provisions in the NDPS Act including NotificationNo.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E)dated 19.10.2001;(IV). Challenge to Notification dated 18.11.2009 adding “Note 4”to the Notification dated 19.10.2001, fails and it is observed andheld that the same is not ultra vires to the Scheme and therelevant provisions of the NDPS Act.”19.The larger bench in the case of Hira Singh (supra) has reconsideredthe logic of the Supreme Court in the case of E. Micheal Raj (supra) and it is BA 2009/2410observed by the larger bench that it is not in agreement with the view takenin the case of E. Micheal Raj (supra) that the mixture of a narcotic drug orpsychotropic substance with one or more neutral substance, the quantity ofneutral substance is not to be taken into consideration and it is only theactual content by weight of the narcotic drug which is relevant for thepurposes of determining whether it would constitute “small quantity orcommercial quantity. 20.In the case of Hira Singh (supra), the Supreme Court has observedthat as per the preamble of N.D.P.S. Act, 1985, it is an Act to consolidateand amend the law relating to Narcotic Drugs, to make stringent provisionsfor the control and regulation of operation relating to narcotic Drugs andpsychotropic substance. The Supreme Court has observed that it was neverthe intention of the legislature to exclude the quantity of neutral substanceand to consider only the actual content by weight of offending drug which isrelevant for the purpose of determining whether it would constitute smallquantity or commercial quantity. For the purpose of determination of the“small quantity or commercial quantity”, the entire weight of themixture/drug by whatever named called, weight of neutral material is alsorequired to be considered, subject to whether the mixture is consisting oftwo different Narcotic Drugs and Psychotropic Substance with neutralmaterial, one drug is heroin and another is methadone, lesser ofcommercial quantity between the quantities given against the aforesaid tworespective Narcotic Drugs and Psychotropic Substance is required to beconsidered. BA 2009/241121.The Supreme Court in Hira Singh (supra) has also noted that illicitdrugs are seldom sold in a pure form. They are almost always adulterated.It is noted that the total weight of such “manufactured drug” or“preparation”, including the neutral material is required to be consideredwhile determining small quantity or commercial quantity. If it is interpretedin such a manner, then and then only, the objects and purpose of N.D.P.S.Act would be achieved.22.The Hon’ble Supreme Court in the case of the State of HimachalPradesh Vs. Karuna Shanker Puri reported in 2022 LiveLaw (SC) 173,relying upon the judgment in the case of Hira Singh (supra) and in group ofmatters in Criminal Appeal Nos. 234-236/2022 has observed as under :-“b)The charas sample which was examined both forqualitative and quantitative test would not meet theprinciples laid down in respect of quantification of the drug,an aspect we may note stands covered by the judgment inHira Singh (supra) opining that in the case of seizure of amixture, the quantity of neutral substance is not to beexcluded and to be taken into consideration along with theactual contents of weight of the offending drug whiledetermining the small or commercial quantity.”23.Applying the law as laid down in the judgment of Hira Singh (supra)to the facts of the present case, it is to be noted that although there isneutral material in the form of stems, leaves and roots mixed with theseized contraband ‘Ganja’, the mixture is composite and the investigatingOfficer or the Chemical Analyst cannot separate the Ganja from the neutralmaterial and only compare the weight of the ‘Ganja’ separately. In the case BA 2009/2412of Hira Singh (supra), it was observed that neutral material cannot beseparated and thus, the total weight is required to be taken intoconsideration for the purpose of determining the “small quantity,intermediate quantity or the commercial quantity”.24.The Hon’ble Supreme Court in the case of Hira Singh (supra) hasinterpreted the section 21 of N.D.P.S. Act and has observed that section 21is not stand-alone provision. Section 20 (b)(ii) of the N.D.P.S. Act isidentical to section 21 of N.D.P.S. Act and has to be interpreted in identicalmanner as section 21 of N.D.P.S. Act as has been interpreted in the case ofHira Singh. For ready reference, section 20(b)(ii) and section 21 of theN.D.P.S. Act are quoted below :-“20. Punishment for contravention in relation to cannabisplant and cannabis.— Whoever, in contravention of anyprovisions of this Act or any rule or order made or conditionof licence granted thereunder :-(a)….(b)produces, manufactures, possesses, sells, purchases,transports, imports inter-State, exports inter-State or usescannabis, shall be punishable - (i)………..(ii)where such contravention relates to sub-clause (b),—(A) and involves small quantity, with rigorousimprisonment for a term which may extend to one year, orwith fine, which may extend to ten thousand rupees, or withboth;(B) and involves quantity lesser than commercial quantitybut greater than small quantity, with rigorous imprisonmentfor a term which may extend to ten years and with finewhich may extend to one lakh rupees; BA 2009/2413(C) and involves commercial quantity, with rigorousimprisonment for a term which shall not be less than tenyears but which may extend to twenty years and shall alsobe liable to fine which shall not be less than one lakh rupeesbut which may extend to two lakh rupees: Provided that the court may, for reasons to be recordedin the judgment, impose a fine exceeding two lakh rupees.21. Punishment for contravention in relation tomanufactured drugs and preparations.— Whoever, incontravention of any provision of this Act or any rule ororder made or condition of licence granted thereunder,manufactures, possesses, sells, purchases, transports,imports inter-State, exports inter-State or uses anymanufactured drug or any preparation containing anymanufactured drug shall be punishable,-(a)where the contravention involves small quantity, withrigorous imprisonment for a term which may extend to oneyear, or with fine which may extend to ten thousand rupees,or with both;(b) where the contravention involves quantity, lesser thancommercial quantity but greater than small quantity, withrigorous imprisonment for a term which may extend to tenyears and with fine which may extend to one lakh rupees;(c)where the contravention involves commercial quantity,with rigorous imprisonment for a term which shall not beless than ten years but which may extend to twenty yearsand shall also be liable to fine which shall not be less thanone lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recordedin the judgment, impose a fine exceeding two lakh rupees.”The Hon’ble Supreme Court in the case of Hira Singh (supra) has observedthat the punishment part in drug trafficking is an important one, but itspreventive part is more important. Therefore, prevention of illicit traffic in BA 2009/2414Narcotic Drugs and Psychotropic Substances Act, 1988 came to beintroduced. The aim was to prevent illicit traffic rather than punish after theoffence was committed. Therefore, the provisions of NDPS Act are requiredto be interpreted keeping in mind the object and purpose of N.D.P.S. Act;impact on the society as a whole and the Act is required to be interpretedliterally and not liberally which may ultimately frustrate the object, purposeand preamble of the Act. Therefore, the interpretation of the relevantprovisions of the statute canvased on behalf of the accused that quantity ofneutral substance is not to be taken into consideration and it is only actualcontent of the weight of the offending drug, which is relevant for thepurpose of determining whether it would constitute “small quantity orcommercial quantity”, cannot be accepted.25.Considering the judgment of the Supreme Court in the case of HiraSingh (supra), I am of the considered view that the contraband seized‘Ganja’ which is mixed with stem, roots etc. cannot be separated from theflowering or fruiting tops of the cannabis plant so as to ascertain the weightof the seized contraband. Ganja if mixed with neutral material in terms ofthe stem, leave, roots, cannot be separated and has to be considered aswhole for the purpose of section 20(b)(ii) of N.D.P.S. Act for determiningwhether the quantity seized is small quantity, intermediate quantity or thecommercial quantity. Since the larger bench of the Supreme Court in thecase of Hira Singh (supra) has conclusively dealt with the issue that theneutral material cannot be separated from the offending narcotic orpsychotropic drug, I have not dealt with any other judgments of this Courton this issue, indicating to the contrary. In the instant case, the quantity BA 2009/2415seized is 77.96 k.g. and thus, there cannot be any doubt that the seizedquantity is the commercial quantity for which rigour of section 37 of N.D.P.SAct comes into play.26.As regards the submission of the learned counsel for the applicantthat there is violation of section 52-A is concerned, that the sample is drawnon the field and not before the Magistrate. The counsel for the applicant hasnot refuted the submission of the APP that the sample was also drawnbefore the Magistrate and both the samples are send for chemical analysisand thus, this question would be matter of trial if there is any violation ofsection 52-A of the Act as the samples are also drawn before theMagistrate.27.In view of the discussion made above, I hold that no case is made outfor grant of regular bail. The application is dismissed.[ARUN R. PEDNEKER, J.]ssc/
Arguments
BA 2009/241IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO. 2009 OF 2024Pravin Anil Narbhavar,Age : 27 yrs., Occu. Labour,R/o. Kothada, Tal.& Dist. Nandurbar....Applicant.Versus1.The State of MaharashtraThrough Superintendent of PoliceNandurbar, Tal. & Dist. Nandurbar.2.The Police Station Incharge Officer,Newapur Police Station,Tal. & Dist. Nandurbar....Respondents.Mr. Anju Ajay Fulfagar, Advocate for applicant.Mr. A.A.A. Khan, APP for respondent Nos. 1 and 2. CORAM : ARUN R. PEDNEKER, J.DATE : 19.12.2024ORDER :-1.Heard Mr. A.A. Fulfagar, learned counsel for the applicant and Mr.A.A.A. Khan, learned APP for the respondents/State. Mr. G.O. Wattamwar,the learned APP and Mrs. V.S. Choudhari, the learned APP have also assistedthe Court in dealing with legal submissions.2.The applicant is seeking bail as he was arrested on 18.4.2024 inconnection with Crime No. 280/2024 dated 18.4.2024 registered withNawapur Police Station, District Nandurbar for the offences punishableunder sections 8(c), 20(b)(ii)(c) and 22 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (hereinafter referred to as ‘N.D.P.S. Act’for short). BA 2009/2423.The case of the prosecution in short is that on 17.4.2024 at about6.30 p.m. at inter-State check post on Nandurbar to Dule Road, accusedNos. 1 and 2 were found travelling in Mahindra Pickup Bolero vehicle andthey were found in possession of two blue plastic bags containing Ganja of1.977 k.g. and 2.009 k.g. in each. It is the case of the prosecution that theaccused Nos. 1 and 2 had procured the above Ganja from accused No.6/present applicant. Present applicant was found storing 77.96 k.g. Ganjawhich came to be seized under seizure panchanama. Some of the accusedare absconding.4.The present applicant had filed Bail Application No. 827/2024, whichwas withdrawn on 1.7.2024. Thereafter, chargesheet was filed on14.7.2024. After filing of the chargesheet, again bail application was filed bythe applicant below Exh. 16 in Special Case No. 20/2024 before theSessions Court. The learned Sessions Court rejected the bail application ofthe applicant on 29.8.2024. Hence, the present bail application is filed bythe applicant for bail. The applicant was arrested on 18.4.2024 and is of 27years of age.5.The contention of the applicant is that under the seizure panchanamamuddemal property containing Ganja was recovered which contains seeds,leaves, steams of cannabis plant. The contention of the applicant is thatsince the roots, stems and leaves are not separated from Ganja, the weightof sample is 77 k.gs. The learned counsel submits that the flowering tops(cannabis) is to be separated from the seeds, leaves and steams and if such BA 2009/243separation is done, the quantity recovered would not be commercialquantity and it would come within intermediate quantity if not less thanthat. The learned counsel for the applicant has placed reliance on followingjudgments.(i)Order dated 20.9.2024 passed by Nagpur Bench of thisCourt in Criminal Application (BA) No. 602/2024 in the case ofMohammad Jakir Nawab Ali Vs. The State of Maharashtra thr.P.S.O., P.S. Sonala, Dist. Buldhana.(ii)Order dated 14.6.2024 passed by this Court in BailApplication No. 763/2024 in the case of Sidique Farook Shaikh Vs.The State of Maharashtra.(iii)Order dated 24.8.2023 passed by this Court in BailApplication No. 1363/2023 in the case of Subhash Baburao PatilVs. The State of Maharashtra.6.The second contention of the applicant is that the samples weredrawn on the spot and not in presence of the Magistrate, as such, there isviolation of section 52-A of the N.D.P.S. Act. The learned counsel relied onfollowing judgments.(i)Simarnjit Singh Vs. State of Punjab reported in 2023 SCCOnLine SC 906.(ii)Order passed by this Court in Bail Application No.1371/2024 in the case of Mirza Mohsin Beg Vs. The State ofMaharashtra.7.Per contra, the learned APP submits that applicant is chargesheetedfor the offences punishable under sections 8(c),20(b)(ii)(c) and 22 ofN.D.P.S. Act. As regards first submission of the applicant is concerned, thelearned APP submits that since the recovered bags containing 77.96 k.g. ofGanja along with leaves, stems and small cannabis, it is not possible toseparate the steams and leaves from Ganja and that the entire quantity ofseized material has to be taken as commercial quantity. For that purpose, BA 2009/244the learned APP relied upon the following judgments :-(i)Order dated 16.1.2024 in CRM-M-44787/2023 passed bythe Punjab and Haryana High Court in the case of SanjayUpadhya Vs. State of Punjab.(ii)Order dated 16.3.2022 passed by this Court in BailApplication No. 1725/2021 in the case of Ajay Vitthal Shriram Vs.The State of Maharashtra.(iii)Order dated 7.12.2022 passed by Karnataka High Court inCriminal Petition No. 11678/2022 in the case of Sri Rangappa Vs.State and Anr.(iv)Judgment dated 22.4.2020 delivered by the Hon’bleSupreme Court in Criminal Appeal No. 722/2017 in the case ofHira Singh and Anr. Vs. Union of India and Anr.8.As regards the submission of violation of section 52-A of N.D.P.S. Act,the learned APP submits that the samples are drawn by the police on thespot, so also samples are drawn before the Magistrate and both samples aresent to chemical analysis and as such, there is no violation of section 52-Aof N.D.P.S. Act. He also relies upon following judgment.(i)Judgment dated 27.9.2023 delivered by this Court in BailApplication No. 54/2023 in the case of Mukesh RajaramChoudhari Vs. The State of Maharashtra. 9.Considering the submissions of parties, this Court is called upon todecide the following questions :-(i)What is Ganja ?(ii)If the recovered ‘Ganja’ contains neutral material likestems and roots, whether the ‘Ganja’ has to be separated fromstems and roots to ascertain the quantity of ‘Ganja’ so as todetermine the ‘small, intermediate or commercial quantity’ for thepurpose of section 20(b)(ii) and section 37 of N.D.P.S. Act ?(iii)In the present case, whether there is violation of of section BA 2009/24552-A of N.D.P.S. Act ?10.The first question that arises for consideration of this Court is ‘what is‘Ganja’ ?. For that purpose, it is necessary to examine the definition of‘Ganja’ given in section 2(b) of N.D.P.S. Act, which reads as under :-“(b)ganja, that is the flowering of fruiting tops of thecannabis plant (excluding the seeds and leaves when notaccompanied by the tops), by whatever, name they may beknown or designated;”11.Bare perusal of the definition of the word ‘Ganja’ would indicate thatGanja is the flowering of fruiting tops of the cannabis plant (excluding theseeds and leaves when not accompanied by the tops). Thus, the floweringof fruiting tops of the cannabis plant alone is considered to be ‘Ganja’except when it is accompanied by the tops when the seeds and leaves arealso included in the definition of ‘Ganja’. This is the consistent view of thisCourt in all the above judgments cited by the parties at para 5 and 7 above.12.In the instant case, from perusal of the Certificate of Inventory as persection 52-A of the N.D.P.S. Act dated 23.4.2024 of the Judicial Magistrate,First Class, it is seen that the contraband seized from the applicant is asunder :-“Thirdly, Muddemal “Article F/2, F/1 and F one YellowColour Plastic Sack and two small sample Khaki Paperpockets” came to be measured on electronic machine inpresent of panch witnesses with the help of electronicweighing machine owner Shri. Lalsing Aamnsing Rajpurohit.Yellow Colour Plastic Sack and two Khaki paper pockets arehaving weight as under. BA 2009/246ArticleWeightF/224Kg 85 GramF/1116 GramF125 GramThenafter Bulk Muddemal Article F/2 opened itcontaints “Ganja’ alongwith leafs, stem, roots and smallcannabis. The leaves are greenish in colour having strongsmell. Thenafter samples were taken in presence of PanchWitnesses and before me in Two Plastic pockets of 50 Grameach. Thenafter these two sample plastic pockets came to besealed in Khaki colour paper pockets and they are givenArticle F/3 and F/4. After taking sample from Article F/2 itcame to be again sealed and also samples pockets takenbefore me “Article F/3 and F/4” came to be sealed inpresence of Panchas in the Court……………….”13.From perusal of the of the above Certificate of Inventory, the seizedcontraband Ganja is mixed alongwith leafs, stem, roots and small cannabis.The same is not accompanied by the fruiting tops as could be reflected fromthe Certificate of Inventory as per section 52-A of the N.D.P.S. Act. Thelearned counsel for the applicant submits that since the leafs, steam, rootsdo not constitute ‘Ganja’, the same has to be separated and excluded incomputing the quantity of ‘Ganja’. The ‘Ganja’ containing leafs, stem, rootswould create doubt as regards the total quantity of contraband seized andwhether the applicant would be entitled for bail as the rigours of section 37would not come into play.14.The above submission of the learned counsel for the applicant callsfor determination of the next question i.e. whether leafs, stem and rootshas to be excluded in computing the weight of ‘Ganja’ while determining thequantity of ‘Ganja’ being small, intermediate or commercial quantity for the BA 2009/247purpose of section 20(b)(ii) and section 37 of the N.D.P.S. Act. For thispurpose, it is necessary to consider the law laid down by the Supreme Courtin it’s judgments noted below.15.The Two Judge bench of the Supreme Court in the case of E. MichealRaj Vs. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5SCC 161 had taken view that when any narcotic drug or psychotropicsubstance is found mixed with one or more neutral substance/s, for thepurpose of imposition of punishment it is the content of the narcotic drug orpsychotropic substance which shall be taken into consideration alone. In thecase of E. Micheal (supra) the Supreme court had given illustration that one“A” is having quantity of 4 grams heroin which is less than the ‘smallquantity’ which is 5 grams. Another “B” is in possession of 1 gram of heroin,but has mixed it with “neutral material” of 250 grams, it becomes 251grams, more than the ‘Commercial quantity” which is 250 grams. If thesetwo offenders “A” and “B” are convicted, then “A” would be given apunishment of 1 year while “B” can be given up to 20 years though actualcontent of the offending drug is lesser in case of “B”. It means one yearpunishment for heroin and 19 years for “neutral material” which is nototherwise punishable under the NDPS Act. Thus, the effect is more thedilution, less the potency of the drug, but more the punishment. Therefore,it wold lead to injustice and would lead to variation in the punishment of theaccused depending upon the quantity of the “neutral material” instead ofthe “drug material”.16.Thus, in the case of E. Micheal Raj (supra) the Supreme Court has